Terms of business
1 Commencement and Term
1.1 Initial Term: This Agreement will commence on the Commencement Date and, unless sooner terminated in accordance with the terms of this Agreement, will remain in force until the later of expiry of the Initial Term, expiry of the latest Renewal Term under clause 1.2 (the Term).
1.2 Renewal: Prior to expiry of the Initial Term (or the then-current Renewal Term), either party may by written notice to the other party renew this Agreement for a period of up to two years (each such exercised renewal being a Renewal Term). If neither party has renewed this Agreement under this clause 1.2, then upon expiry of the Initial Term, this Agreement will automatically renew for consecutive one-month periods, until terminated in accordance with the terms of this Agreement.
2 Project Work and Services
2.1 Request: From time to time, the Client may request and Concentrate may agree to perform project work and other services on an ad hoc basis. The Client may request the project work by phone or email. Any work Concentrate agrees to perform under this Agreement is “Project Work” and any services Concentrate agrees to perform under this Agreement are “Services”.
2.2 Performance: Concentrate will use reasonable efforts to perform the Project Work and Services in accordance with this Agreement, exercising reasonable degree of skill, care and diligence.
2.3 Variation: From time to time, the Client may request variations to the nature and/or scope of Project Work and/or Services. Any agreement to vary the Project Work and/or Services will be documented in writing (including email).
3 Information and assistance from Client
3.1 General: The Client will:
3.1.1 use best endeavours to provide Concentrate with early visibility of upcoming project work prior to making a request for Concentrate to undertake that work;
3.1.2 give Concentrate prompt and adequate access to those of its personnel, facilities, resources and systems as may be necessary or convenient to enable Concentrate to perform the Project Work and Services;
3.1.3 obtain any approvals, consents, authorities, licenses and permits that may be required by Concentrate for the performance of its obligations under this Agreement;
3.1.4 promptly provide all information, documentation, decisions, assistance and co-operation that Concentrate may reasonably require for the performance of its obligations under this Agreement; and
3.1.5 be responsible for the due and timely performance by its staff, contractors, and customers of the tasks and activities on which Concentrate is dependent in order to perform the Project Work and Services.
3.2 Information: The Client will provide to Concentrate upon request, all information relevant to the Project Work and Services. When providing information to Concentrate, the Client will ensure compliance with all applicable laws and will identify any proprietary rights that any other person may have in any information provided. Concentrate may use such information for the purposes of performing the Project Work and Services and for other purposes with the Client’s consent.
4 Payment
4.1 Fees: The Client will pay Concentrate the fees for the Project Work and Services upon invoice by Concentrate. Concentrate will calculate the fees using Concentrate’s then-current standard hourly rates.
4.2 Costs and expenses: The Client will reimburse Concentrate, upon invoice, for all costs and expenses reasonably incurred by Concentrate in performing the Project Work and/or Services, including travel costs.
4.3 Taxes: The fees, expenses and all other charges do not include goods and services tax nor any other applicable taxes, duties, levies, imposts or charges (together, taxes). All such taxes may be invoiced by Concentrate to the Client at the rate applicable at the time of supply.
4.4 Payment: Unless otherwise agreed between the parties, all amounts are payable in New Zealand dollars. Fees and expenses must be paid in full by the 20th of the month following the date of Concentrate’s invoice. The Client may not deduct or withhold any amount (whether by way of set-off, counterclaim or otherwise) from any money owing to Concentrate.
4.5 Overdue amounts: In the event of failure to make payment by the due date for payment, or the Client becomes insolvent, has a receiver, liquidator, statutory or official manager appointed, or makes an arrangement with its creditors:
4.5.1 All amounts owing to Concentrate will immediately become due and payable; and
4.5.2 Concentrate may invoice the Client (without prejudice to any other remedies Concentrate may have) for default interest on overdue amounts from the date payment falls due until the date of payment at the rate of Concentrate’s bank overdraft rate plus 2%, with such rate being calculated as at the 20th of each month; and
4.5.3 Concentrate may recover from the Client any reasonable costs of any action taken by Concentrate to recover the debt; and
4.5.4 Concentrate may suspend performance of Project Work and/or Services to the Client until all amounts owing are paid.
5 Confidentiality
5.1 Confidentiality: Subject to clause 5.2, each party will at all times keep confidential any information of a confidential nature obtained from the other party under or in connection with this Agreement (Confidential Information). Confidential Information includes all information exchanged between Concentrate and the Client, whether in writing, electronically or orally.
5.2 Exceptions: Either party may disclose Confidential Information to the extent that:
5.2.1 that party is required to do so by law;
5.2.2 disclosure is necessary to obtain the benefit of, or to carry out any obligations under, this Agreement;
5.2.3 such information is or becomes publicly available without breach by either party of its confidentiality obligations under this clause; or
5.2.4 the parties agree in writing, which agreement shall not be unreasonably withheld or delayed.
5.3 Return or destruction: Upon request, each party will return or destroy Confidential Information received from the other party, provided that Concentrate may retain Confidential Information received from the Client for legal or regulatory compliance, accounting, or risk management purposes.
6 Intellectual Property
6.1 No transfer: Nothing in this Agreement transfers ownership of any intellectual property that existed prior to the date of the Agreement, nor any intellectual property that was developed independently of this Agreement, nor any modification, enhancement or derivative work of such existing intellectual property, regardless of its use in the Project Work and/or Services.
6.2 Licence to use: The Client grants to Concentrate a non-exclusive, royalty-free licence to use, copy, and modify any items or material that the Client supplies to Concentrate, including any of its existing intellectual property rights in such things, for the purposes of Concentrate performing the Project Work and/or Services.
6.3 New intellectual property: All new intellectual property created or developed under or in connection with this Agreement will vest in Concentrate immediately upon creation. However, on payment by the Client of all money owing to Concentrate for the Project Work, copyright in the final version of any outputs from the Project Work will pass to the Client, subject to clause 6.4.
6.4 Tools and templates: Concentrate will retain ownership of all tools, templates, techniques and methodologies used in providing the Project Work and/or Services and all preparatory and draft versions of all research, preparatory work and draft versions of all presentations, reports and plans created in the course of providing the Project Work and/or Services.
7 Warranties
7.1 General: Concentrate warrants that it will perform the Project Work and Services in accordance with generally recognised commercial practices and standards. If the Project Work and/or Services do not meet the foregoing warranty, as a sole remedy and provided that Concentrate receives written notice from the Client within 30 days after the relevant Project Work and/or Services was due to be performed, Concentrate will reperform the Project Work and/or Services.
7.2 No implied warranties: Other than as set out in clause 7.1, to the maximum extent permitted by law, Concentrate makes no other warranty of any kind whether written or oral, express, implied, statutory or otherwise. Any implied condition or warranty is excluded to the maximum extent permitted by law. Concentrate specifically disclaims the implied warranties of merchantability and fitness for a particular purpose.
7.3 Contracting out: The parties agree: that the Project Work and/or Services are supplied for the purposes of a business; the parties are in trade and of equivalent bargaining power; and to contract out of the provisions of the Consumer Guarantees Act 1993 and the Fair Trading Act 1986 to the extent permitted by law.
8 Liability
8.1 Exclusion: To the maximum extent permitted by law, Concentrate will not be liable at all for any indirect, incidental, consequential or special loss, or economic loss, including loss of profits, savings, revenue, business, opportunities, records or data, or for losses or damages claimed by third parties, however arising, whether under contract, in tort (including negligence) or otherwise, suffered by the Client or any other person, unless such loss is caused by Concentrate’s gross negligence or wilful misconduct.
8.2 Limitation: The maximum aggregate liability of Concentrate (together with their employees, agents and contractors) to the Client under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss or damage to person or property, or consequential or indirect loss, or economic loss which is caused, contributed to or otherwise arises from the Project Work and/or Services supplied or any defect in them, or any negligent act or omission of Concentrate will not exceed the value of the fees (exclusive of GST and disbursements) paid by the Client under this Agreement for the relevant Project Work and/or Services to which such liability relates.
8.3 Indemnity by Client: The Client agrees to indemnify Concentrate for any liabilities, claims, losses, costs and expenses (including legal expenses) incurred by Concentrate arising out of or in relation to the Client’s inappropriate use of Project Work and/or Services.
9 Termination
9.1 Breach or insolvency: Either party may terminate this Agreement by written notice to the other party, if the other party:
9.1.1 is in material breach of its obligations under this Agreement (including, in the case of the Client, failing to pay any amount by the due date) and not rectified the breach within 20 days after receiving notice from the other party identifying the breach and requiring it to be remedied; or
9.1.2 ceases to carry on business, goes into liquidation, ceases to be able to pay its debts when due, or if a receiver and/or manager or statutory manager is appointed, or if the other party enters into a scheme of arrangement with its creditors.
9.2 Without cause: Either party may terminate this Agreement by giving the other party not less than one month’s prior written notice, provided that, if the Services include one of Concentrate's Strategic Partnership or Support Team packages, the notice may only be given so as to expire at the end of the three month period for that Strategic Partnership or Support Team package.
9.3 Effect of termination: Expiry or termination of this Agreement will not prejudice or affect the accrued rights or claims and liabilities of either party, nor the provisions of this Agreement which by their nature, survive termination, including the provisions in clause 7 and 8. In the event of expiry or termination:
9.3.1 the Client must pay to Concentrate all invoice amounts outstanding by the effective date of termination or expiry; and
9.3.2 Concentrate may invoice the Client, and the Client must pay, in relation to personnel resources who were allocated to perform agreed Project Work and/or Services that would have continued beyond the date of termination or expiry, to the extent a replacement engagement cannot be found for such resources.
10 Dispute Resolution
10.1 Notice: In the event of a dispute arises between Concentrate and the Client, either party may notify the dispute to the other party.
10.2 Resolution: The parties will use reasonable endeavours to resolve disputes within seven working days after being notified of any dispute.
10.3 Escalation: If the dispute is not resolved within such seven working day period, the dispute will be escalated to the parties’ managing directors or equivalent.
10.4 Mediation: Either party may refer any unresolved dispute to mediation before taking any further legal action. Any mediation must be conducted on the Resolution Institute standard mediation agreement by a mediator agreed between the parties or if they cannot agree, by a mediator appointed by the president (or nominee) of the New Zealand Law Society.
11 General
11.1 Notices: Notice may be given by: (1) personal delivery; (2) ordinary mail (which will be deemed delivered three days after posting); or (3) email (which will be deemed delivered on the date of transmission to the recipient’s correct email address).
11.2 Variation and waiver: This Agreement may only be varied in writing signed by the parties. No waiver of any breach, or failure to enforce any provision, of this Agreement at any time by any party shall in any way affect, limit or waive such party’s right thereafter to enforce and compel strict compliance with the provisions of this Agreement.
11.3 Priority over other terms: These terms apply to all advice, information, recommendations and other services provided by Concentrate Limited to the Client. In the event of any conflict between this Agreement and any other terms or conditions proposed or supplied by the Client, this Agreement will prevail. Everything supplied by Concentrate will be on these terms only, except to the extent that these terms are expressly overridden by a document signed by both parties. For the avoidance of doubt, the Client’s standard business terms will not apply to this Agreement or to any Project Work and/or Services performed by Concentrate.
11.4 Force majeure: Neither party will be liable for failure of delay in performance of any obligation under this Agreement if the failure or delay is due to circumstances beyond its reasonable control. If a party is prevented from meeting its obligations under this Agreement due to circumstances beyond its reasonable control it will notify the other party of those circumstances as soon as reasonably practicable and will use its reasonable endeavours to minimise the effects of its inability to perform its obligations under this Agreement.
11.5 Assignment: Neither party shall, directly or indirectly, assign, transfer or otherwise dispose of any of its rights or interests in, or obligations or liabilities under, this Agreement without the express written consent of the other party.
11.6 Entire agreement: The Agreement sets out everything agreed by the parties relating to the Project Work and/or Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the date of acceptance of the Agreement. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986.
11.7 Counterparts: This Agreement may be signed in any number of counterparts, including facsimile and electronic copies, all of which will together constitute one and the same instrument, and any party may execute this Agreement by signing any such counterpart.
11.8 Governing law: This Agreement is governed by and construed in accordance with the laws of New Zealand. The parties submit the non-exclusive jurisdiction of the courts of New Zealand.
Contact details
Owen Scott, Managing Director
owen@concentrate.co.nz
Greg Williamson, Director
greg@concentrate.co.nz
Concentrate Limited
PO Box 452
Christchurch
Phone 03 3658774
www.concentrate.co.nz