General Terms and Conditions

1. Consultancy Agreement

1.1 These General Terms and Conditions, as amended from time to time, apply to the provision of all Services supplied by The Zone, and are deemed to be incorporated into the Consultancy Agreement and shall operate in addition to those terms set out in the Consultancy Agreement.

1.2 To the extent there is any conflict or inconsistency between these General Terms and Conditions and the terms set out in the Consultancy Agreement, the terms of the Consultancy Agreement shall take precedence.

2. Definitions and Interpretation

2.1 In the Consultancy Agreement, unless the context otherwise requires:

Commencement Date means the date set out in the Consultancy Agreement.

Confidential Information means any information:

(a) Relating directly or indirectly to the business of The Client or The Zone or their respective suppliers or customers;

(b) Disclosed by either party to the other on the express basis that such information is confidential;

provided that where information relates exclusively to one party, nothing in the Consultancy Agreement shall require that party to maintain confidentiality in respect of that information.

Consultancy Fee means the fees payable by the Client to The Zone, for the provision by The Zone of the Services, as set out in the Consultancy Agreement.

Consultancy Agreement means the consultancy agreement entered into by The Zone and the Client which sets out the commercial terms and conditions on which The Zone will provide Services to the Client, and which incorporates the Privacy Policy and these General Terms and Conditions.

General Terms and Conditions means these general terms and conditions as may be amended from time to time by The Zone and available HERE, which set out the general provisions that apply to all Services supplied by The Zone to the Client under the Consultancy Agreement.

IP means all intellectual property rights owned by The Zone including copyright and neighbouring rights, all rights in relation to documents, processes and methodologies (including patents), registered and unregistered trademarks, registered and unregistered designs, and confidential information, know-how, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields but does not include moral rights.

Licence Fee means the fees payable by the Client to The Zone for use of IP not specifically covered in the Consultancy Agreement or where the IP is used commercially by The Client or one of its agents (subject to The Zone’s prior written consent).

Personal Information means any information about an identifiable individual, and to the extent applicable by law, includes any “Personal Data” as such term is defined in the EU General Data Protection Regulation 2016/679.

Privacy Policy means The Zone’s privacy policy (as amended from time to time) which describes how The Zone handles Personal Information and which is available on its website HERE.

Reimbursable Expenses means the expenses payable by The Client to The Zone, reasonably incurred in the provision by The Zone of the Services, as set out in the Consultancy Agreement.

Services means the services to be provided by The Zone and outlined in the Consultancy Agreement.

Term means the period set out in the Consultancy Agreement commencing on the Commencement Date.

Working Day means any day other than a Saturday, Sunday or public holiday observed in Auckland, New Zealand.

2.2 In the Consultancy Agreement;

(a) All monetary amounts are stated and are payable exclusive of GST OR, VAT, or other related taxes unless provided otherwise.

(b) Where the context permits, the singular includes the plural and vice versa.

(c) References to any “party” mean a party to the Consultancy Agreement and include the successors, executors, administrators and permitted assignees (as the case may be) of that party.

(d) References to clauses and schedules are to clauses in, and the schedules to, the Consultancy Agreement (unless stated otherwise). Each such schedule forms part of the Consultancy Agreement.

(e) Where the context permits, references to a “person” include an individual, firm, company, corporation or unincorporated body of persons, any public, territorial or regional authority, any government, and any agency of any government or of any such authority.

(f) References to a month or a year are references to a calendar month or calendar year.

3. The Zone’s Responsibilities

3.1 The Zone shall be primarily responsible to provide the Services for the Term and will comply with good industry practice and all relevant codes of practice in providing the Services.

4. The Client’s Responsibilities

4.1 The Client shall, throughout the Term:

(a) Promptly provide all information, directions, assistance and co-operation reasonably required by The Zone for the provision of the Services; and

(b) Pay the Consultancy Fees, Licence Fees (if any) and Reimbursable Expenses by their due date (as specified on the relevant invoice) and in accordance with the terms of this Consultancy Agreement.

5. Payment Terms

5.1 The Zone will invoice the Client on a monthly basis for fees and Reimbursable Expenses. All invoices are payable within 30 Working Days of receipt.

5.2 If payment is more than 5 Working Days overdue, The Zone may suspend provision of the Services and charge interest at the rate of ASB’s current overdraft rate plus 5% on all overdue amounts.

5.3 Unless otherwise agreed in the Consultancy Agreement, all fees and Reimbursable Expenses payable by the Client are exclusive of all taxes, including GST and VAT, or other related taxes (if applicable).

6. Cancelation Fees

6.1 Any notice of cancellation of the Consultancy Agreement (or any part of the Consultancy Agreement) by the Client must be provided in writing to The Zone at the contact details set out in the Consultancy Agreement.

6.2 The following fees are payable in relation to cancellation of the Consultancy Agreement:

(a) Cancellation within 20 Working Days of the Commencement Date – 100% of Consultancy Fee;

(b) Cancellation within 30 Working Days of the Commencement Date – 50% of the Consultancy Fee; or

(c) No cancellation fee is payable if the Consultancy Agreement is cancelled 40 Working Days (or more) before the Commencement Date.

6.3 Where The Zone has incurred Reimbursable Expenses or Discovery Phase fees in relation to the Services and the Services are cancelled at any time, the Client agrees to reimburse The Zone for such expenses in full.

7. Intellectual Property

7.1 In performing the Services, The Zone creates a programme tailored to the Client which draws on existing processes, tools and models proprietary to The Zone which support organisations to transform (“Materials”).

7.2 The Client acknowledges that the Materials and the IP embodied within the Materials (“Zone IP”) are and shall remain owned by The Zone at all times unless The Zone specifically agrees otherwise in writing with the Client.

7.3 The Zone grants the Client a non-exclusive, non-transferable licence to use the Materials solely for the Client’s internal business purposes and subject to the terms of this Consultancy Agreement.

7.4 Provided that the Client uses the Materials in accordance with this Consultancy Agreement, any output which arises from this use is for the benefit of the Client, subject to The Zone’s rights in the Zone IP.

7.5 The Client acknowledges that The Zone relies on the Client’s integrity to uphold the spirit of this Consultancy Agreement and protect the ownership of the Zone IP. The Materials are:

(a) To be used by the Client only in relation to the agreed Field of Use (eg. workshop, team, function) and subject to payment of any applicable Licence Fees. For example, if The Zone has been engaged to bring change within a particular division of the Client’s organisation, use of the Materials in other divisions of the Client’s organisation or affiliated companies may be outside the agreed Field of Use;

(b) NOT to be used in any way commercially outside the agreed Field of Use;

(c) NOT to be used with or disclosed to partners of other organisations in the Client’s group, or supplier and partner organisations;

(d) NOT to be used out of context or misaligned to the purpose of the Materials (i.e. Materials must be used and delivered with good intention); and

(e) When the Client uses the Material in the permitted circumstances outlined above, The Zone must be attributed as the source.

7.6 The Client is free to propose a partnership with The Zone on any commercial opportunities which may arise from the use of the Zone IP, but the Client acknowledges and agrees that it must not engage in any commercial use, or explore any potential commercial opportunities, involving the Zone IP outside the terms of this Consultancy Agreement, without The Zone’s prior written consent.

7.7 If the Client becomes aware or suspects that the Materials are being misused, misrepresented or are being used without permission or outside of the terms of this Consultancy Agreement, the Client must notify The Zone immediately.

8. Confidentiality

8.1 Each party shall maintain as confidential at all times and shall not at any time directly or indirectly disclose or permit to be disclosed to any person, or use for itself, or use to the detriment of the other party any Confidential Information except:

(a) As required by law; or

(b) As is already or becomes public knowledge, otherwise than as a result of a breach of this Consultancy Agreement; or

(d) Only to such of its officers or professional advisers, on a “need to know” basis, as is reasonably required in order for the implementation of this Consultancy Agreement.

8.2 This clause 8 shall survive termination of this Consultancy Agreement.

9. Privacy

9.1 The Zone will comply with its obligations under the Privacy Act 1993 and any other applicable laws (including, if applicable, the EU General Data Protection Regulation 2016/679) in relation to the collection, use, and disclosure of any Personal Information obtained from the Client in connection with this Consultancy Agreement and The Zone’s performance of the Services.

9.2 To the extent that the Client provides, transfers or otherwise discloses any Personal Information to The Zone in connection with this Consultancy Agreement, the Client confirms that it:

(a) Consents to the collection, use and disclosure of any Personal Information by The Zone in accordance with the terms set out in this Consultancy Agreement and the Privacy Policy;

(b) Has, where Personal Information relates to an employee, contractor or other third party, obtained the express consent of the relevant individual(s) to disclose their Personal Information to The Zone for the purposes of fulfilling The Zone’s obligations under this Consultancy Agreement and as otherwise described in the Privacy Policy; and

(c) Has made the relevant individual(s) aware of the Privacy Policy and informed them of their rights in relation to the Personal Information and any other matters required by applicable law.

10. Term and Termination

10.1 In addition to any other right of termination or remedy under the Consultancy Agreement or by law, this Consultancy Agreement may be terminated at any time and with immediate effect by written notice given by either the Client or The Zone (referred to as “the First Party”) to The Zone or the Client respectively (referred to as “the Second Party”) if:

(a) The Second Party has failed to comply with an earlier written notice given by the First Party specifying a material breach of this Consultancy Agreement by the Second Party and, in the case of a breach which is capable of remedy, requiring that the Second Party remedy that breach within 5 Working Days after receipt of that earlier notice, provided that the First Party may not at any time give such a notice if, at that time, the First Party is in default under this Consultancy Agreement;

(b) The Second Party is put into liquidation, has a receiver or statutory manager appointed in respect of any of its assets goes into voluntary administration, becomes insolvent, makes any arrangement with creditors or suspends, for 10 Working Days or longer, or ceases, its principal business activities, or any event analogous in nature has occurred in respect of the Second Party; or

(c) The Second Party has committed any material breach of this Consultancy Agreement which is not reasonably capable of remedy by the Second Party within 20 Working Days, provided that the First Party may not at any time give such a notice if at that time the First Party is in default under this Consultancy Agreement.

10.2 Upon termination of this Consultancy Agreement for whatever reason:

(a) Such termination shall be without prejudice to the rights and remedies of either party in respect of any antecedent breach of this Consultancy Agreement by the other party;

(b) The Client shall, notwithstanding such termination, pay (in the manner and at the times provided in this Consultancy Agreement) to The Zone all fees and all Reimbursable Expenses that relate to the period up to and including the date of termination; and

(c) All terms that are intended by their nature to survive termination, shall survive termination of this Consultancy Agreement.

11. Liability

11.1 To the extent permitted by law, all conditions and warranties not expressly included in this Consultancy Agreement are excluded.

11.2 The Zone will not be liable to the Client under the law of tort (including negligence), contract or otherwise for any loss of profits or savings, loss of goodwill, loss of business, loss of data, or for any indirect or consequential loss or damage, arising out of or in connection with the performance or non-performance of any of The Zone’s obligations under this Consultancy Agreement.

11.3 In any case, The Zone’s liability to the Client arising out of any claim arising under or in connection with this Consultancy Agreement for any reason will under no circumstances exceed in aggregate the total amount of the sums actually paid by the Client for the Services supplied during the preceding 12 month period.

11.4 The parties acknowledge that both parties are in trade, the Services are provided for a business purpose, and accordingly the parties agree that the provisions of the Consumer Guarantees Act 1993 are specifically excluded.

12. Dispute Resolution Procedure

12.1 Unless a party has first complied with clauses 12.2 to 12.4 (inclusive) that party may not commence court proceedings or arbitration relating to any dispute arising from the Consultancy Agreement (except where the party seeks urgent interlocutory relief, in which case that party need not comply with this clause before seeking such relief) and where that party fails to so comply with those clauses, the other parties need not comply with those clauses before referring the dispute to arbitration or commencing court proceedings relating to that dispute.

12.2 Any party (referred to in this clause as “the First Party”) claiming that a dispute has arisen under the Consultancy Agreement between itself and any other party shall give written notice to the other party to the dispute (referred to in this clause as “the Second Party”) specifying the matter in dispute and designating as its representative in negotiations relating to the dispute a person with authority to settle the dispute. The Second Party shall, within 5 Working Days after receiving the First Party’s notice, give written notice to the First Party, designating as its representative in negotiations relating to the dispute, a person with similar authority.

12.3 The parties to the dispute shall use their reasonable endeavours to procure that the persons designated under clause 12.2 shall, within 10 Working Days of the last designation required by clause 3.2, following whatever investigations each such person deems appropriate, seek to resolve the dispute.

12.4 If the dispute is not resolved within the period referred to in clause 12.3 (or within such longer period as their respective representatives may agree is appropriate) the parties to the dispute shall within a further period of 10 Working Days (or such longer period as the representatives may agree is appropriate) use their reasonable endeavours to agree, in good faith, on a process for resolving the whole or part of the dispute through means other than litigation or arbitration (including, without limitation, further negotiations, mediation, conciliation, or independent expert determination) and on:

(a) The procedure and timetable for any exchange of documents and other information relating to the dispute;

(b) Procedural rules and a timetable for the conduct of the selected mode of proceedings.

(d) Whether the parties should seek the assistance of a dispute resolution organisation.

12.5 After the expiry of the time established by or agreed under clause 12.4 for agreement on a dispute resolution process, a party which has complied with the provisions of clauses 12.1 to 12.4 (inclusive) may, by written notice to the other party to the dispute, terminate the dispute resolution process provided for in those clauses and may then refer the dispute to arbitration or commence court proceedings relating to the dispute.

12.6 Subject to clauses 12.1 to 12.4 (inclusive), any party may, by written notice to any other party, require that, if a dispute between those parties arising out of the Consultancy Agreement is not resolved within 10 Working Days of receipt of such notice by the other party, the dispute shall be immediately submitted for determination by a single arbitrator nominated by the President, for the time being, of the Auckland District Law Society after consultation with those parties.

12.7 In the event of a submission to arbitration pursuant to clause 12.6:

(a) The arbitration shall be conducted pursuant to Arbitration Act 1908; and

(b) The parties’ respective responsibilities for the costs of the arbitration shall be determined by the arbitrator.

12.8 A dispute over part of an invoice should not delay payment of the balance that is undisputed.

13. Notices

13.1 Any written notice required to be given pursuant to the Consultancy Agreement shall (without limitation) be deemed validly given if:

(a) Delivered by hand or sent by facsimile transmission (provided that the sender’s facsimile machine confirms transmission to the intended recipient) to the intended recipient’s last known physical address or facsimile number; and

(b) Signed, in the case of a notice by The Zone or the Client, by a director of the party giving that notice.

13.2 For the purposes of the Consultancy Agreement, any notice transmitted by facsimile or delivered after 5.00pm on a Working Day, or at any time on a non-Working Day, shall be deemed received at 9.00am on the next Working Day.

14. General

14.1 Non Waiver - No waiver of any breach, or failure to enforce any provision, of the Consultancy Agreement at any time by either party shall in any way limit or waive the right of that party to subsequently enforce and compel strict compliance with the Consultancy Agreement.

14.2 No Assignment - Neither party may transfer or assign any of its liabilities or rights under the Consultancy Agreement to any other person without the prior written consent of the other party, whose consent may be withheld at the other party’s absolute discretion.

14.3 Variation - This Consultancy Agreement may be altered only in writing signed by each party.

14.4 Governing Law and Jurisdiction - Unless otherwise agreed in the Consultancy Agreement, this Consultancy Agreement is governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to the Consultancy Agreement.

14.5 Partial Invalidity - If any provision of the Consultancy Agreement is or becomes invalid or unenforceable, that provision shall be deemed deleted from the Consultancy Agreement and such invalidity or unenforceability shall not affect the other provisions of the Consultancy Agreement, all of which shall remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provisions.

14.6 Entire Agreement - This Consultancy Agreement records the entire arrangement between the parties relating to the matters dealt with in the Consultancy Agreement and supersedes all previous arrangements, whether written, oral or both, relating to such matters.

14.7 Relationship Between the Parties - Nothing expressed or implied in the Consultancy Agreement shall constitute either party as the partner, agent, employee or officer of, or as a joint venture with, the other party, and neither party shall make any contrary representation to any other person.

14.8 Unforeseen Circumstances - Neither party shall be liable for any act, omission or failure under the Consultancy Agreement if that act, omission or failure arises directly from a cause beyond the reasonable control of the party concerned, including (without limitation) extreme weather conditions, civil disruption or industrial action, provided that:

(a) The party claiming the protection of this clause shall, as soon as possible after becoming aware of such cause or the likelihood of such cause, give the other party written notice accordingly.

(b) Notwithstanding the intervention of such cause, each party shall continue to use its best endeavours to perform its obligations as required under the Consultancy Agreement (excluding any obligations which have already been duly performed as at the date of the relevant cause) despite that cause.

(c) In any such event, neither party shall be deemed to have accepted any extra costs which may be incurred or sustained by the other party through a delay resulting from the cause.