DEFINITIONS & INTERPRETATION
Definitions & Interpretation
1.1 Defined Terms
In this Agreement:
Business Day in respect of the exercise of a right, the fulfillment of an obligation or the occurrence of an event, means a day that is not a Saturday, Sunday or public holiday in the place at which that right must be exercised, that obligation fulfilled or that event must occur (as the case may be).
Claim means any claim, notice, loss, damage, demand, debt, account, legal or court action, expense, cost, lien, liability proceeding, litigation (including reasonable legal costs), investigation or judgment of any nature, whether known or unknown.
Company Trademarks means the Consultant and/or Company trademarks, service marks, graphics and logos.
Completion Date means the date on which the Services are to be completed as agreed pursuant to each quote provided, or the date subsequently determined in accordance with the provisions of the Agreement.
Confidential Information in relation to a party to this agreement means any information of a private, confidential or commercially-sensitive nature belonging to that party, regardless of its form and whether the other party becomes aware of it before or after the date of this agreement, which may be disclosed to, or obtained by, that other party and includes:
- (a) all information marked as confidential;
- (b) all other information treated by the first party as confidential;
- (c) all notes and other records prepared by the other party based on or incorporating information referred to in paragraph (b); and
- (d) all copies of the information, notes and other records referred to in paragraphs (b) or
- (e) information that that other party creates (whether alone or jointly with any third person) independently of the first party;
- (f) information that that other party acquires from a third party that is not subject to any duty or obligation of confidentiality in respect of that information; or
- (g) information that is, or becomes, public knowledge (otherwise than because of a breach of confidentiality by the Recipient or any of their permitted discloses).
Consequential Loss means direct, indirect, incidental, punitive, special, exemplary or consequential damages (or any loss of revenue, loss of continued work, loss of data, loss of profits or loss of opportunity whether the losses be direct or indirect).
Content means any and all written content or Materials which are used or created in the course of providing the Services or Program.
Expertise means the Company and Consultant’s combined professional skills and knowledge in the provision of yoga, meditation and coaching or consulting Services.
GST means the goods and Services tax levied and payable under the GST Law.
GST Law means the Goods and Services Tax Act 1985 (NZ), as amended from time to time.
Intellectual Property means copyrighted works (including data, film, audio and video content such as recorded meditations, artistic works, literary works and information (including any written information and original content in various media or forms), trademarks, trade secrets, know-how, inventions, discoveries, semiconductor and circuit layouts, object and source code, mask works, methods, patents, patentable inventions and designs, techniques, recipes, formulae, algorithms, modules, libraries and databases, whether existing now or in the future.
Intellectual Property Rights means all intellectual property rights at any time protected by statute or common law, throughout the world, including:
- (a) patents, copyright, rights in circuit layouts, designs, moral rights, trade and service marks (including goodwill in those marks), domain names and trade names, know-how, methodologies and trade secrets, and any right to have confidential information kept confidential;
- (b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
- (c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) that may subsist anywhere in the world, whether or not such rights are registered or capable of being registered.
Materials means any or all Materials or resources created by the Company or Consultant and includes but is not limited to digital presentations, audio and video recordings, templates, documents, workbooks and all other resources created by the Company or Consultant for the purpose of providing relevant information, or other to the Client.
Pre-existing Material in respect of a party, means any works, Materials, data or information:
- (a) owned by, licensed to or in the possession of that which was in existence on or before the Start Date;
- (b) created or developed by that party after the Start Date independently of this agreement or any works, Materials, data or information provided by the other party;
- (c) or any modifications, adaptations or improvements of the works, Materials, data or information referred in paragraphs (a) and/or (b) above.
Program means any Program developed, promoted and owned by the Company (or Consultant).
Progress Payment is the payment owing to the Company by the Client as set out in Schedule 2.
Services means those Services and contributions to be provided by the Company to the Client under this Agreement.
Start Date means the date specified or otherwise the date on which a counterpart of this Agreement executed by one party is countersigned by the other party.
Term means the duration of this Agreement, as set out in clause 2 of the Agreement.
In this Agreement, unless the contrary intention appears:
- (a) headings are for ease of reference only and do not affect the meaning of this agreement;
- (b) the singular includes the plural and vice versa and words importing a gender include other genders;
- (c) other grammatical forms of defined words or expressions have corresponding meanings;
- (d) reference to a clause, paragraph, schedule or annexure is a reference to a clause or paragraph of or schedule or annexure to this Agreement
- (e) a reference to a document or agreement, including this agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
- (f) a reference to a specific time for the performance of an obligation is a reference to that time in the State, Territory or other place where that obligation is to be performed;
- (g) a reference to a party includes its executors, administrators, successors and permitted assigns;
- (h) words and expressions importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies;
- (i) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it, and consolidations, amendments, re- enactments or replacements of any of them;
- (j) if a day on or by which a right must be exercised, an obligation fulfilled, or an event must occur is not a Business Day, then that right must be exercised, that obligation fulfilled, or that event must occur on or by the next Business Day after that day;
- (k) rules of construction will not apply to the disadvantage of a party merely because that party was responsible for the preparation of this agreement, or any part of it; and
- (l) a reference to any legislation or statutory instrument or regulation is construed in accordance with the Interpretation Act 1999 (NZ).
Notices and Other Communications
2.1 Provision of Notices
All communication under this agreement, including notices, demands, consents, approvals, or feedback, must be in writing. Written communication ensures that all communication has a reference point and provides a record in case any of the Parties need to access it.
2.2 When A Notice Takes Effect
A Notice given in accordance with clause 2.1 takes effect when the recipient receives it (or at a later date as specified in the Notice), but such Notice will (provided that it is addressed correctly) be deemed to have been received by the recipient:
- (a) in the case of a hand-delivered Notice, at the time and date of delivery;
- (b) if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting, if posted to or from a place outside New Zealand); or
- (c) if sent by electronic mail, at the time the electronic mail message, including the attached Notice, enters the electronic mail system of the recipient,
but if the date of delivery is not a Business Day, or the time of delivery is after 5.30 p.m. on a Business Day, such Notice is taken to have been received at 9.00 a.m. on the next Business Day after such date of delivery.
3.1 Entire Agreement
This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with that subject matter.
No amendment or variation of this Agreement will have any legal effect unless such amendment or variation is documented, and the parties sign such document.
If part, or all, of any provision of this Agreement is found to be illegal or unenforceable, such provision (or part of it) may be severed from this agreement and the remaining provisions of this agreement continue in force.
The failure of a party at any time to require performance of any obligation under this Agreement is not a waiver of that party’s right:
- (a) to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and
- (b) at any other time to require performance of that or any other obligation under this agreement.
A waiver will not be effective or enforceable against the party purporting to give it, unless such waiver is in writing signed by that party.
3.5 Further action
Each party must do, at its own expense, anything reasonably necessary (including execution of documentation) to give full effect to this Agreement, and any transaction contemplated by it.
3.6 Relationship of the parties
The parties enter into this Agreement as independent contractors, and neither of them will be the agent, trustee or other fiduciary of the other. Neither party will have the authority to enter into any legal obligation on behalf of, or pledge the credit of, the other party, and must not represent that it does so.
3.7 Governing law
The laws of New Zealand govern this Agreement. Each party submits, irrevocably and unconditionally, to the non-exclusive jurisdiction of the courts of New Zealand.
3.8 GST and Tax invoices
In respect of amounts payable by one party to another, the parties will provide a recipient-created Tax Invoice to the other party in accordance with the GST Law. Any consideration to be paid or provided for a supply made under or in connection with this agreement, unless specifically described in this agreement as GST inclusive, does not include an amount on account of GST.