When engaging the services of The Acceleration Foundry Limited (“TAF”), you (“Business Leader”) agree to these terms and conditions (“Terms”).
THE PARTIES AGREE: 1. Acceptance
1.1 Other than the execution of the Terms by the Business Leader which will constitute acceptance, any instructions received by TAF from the Business Leader for the supply of TAF’s services and/or the Business Leader’s acceptance of services supplied by TAF shall constitute acceptance of the Terms.
2. Program Commencement
- 2.1 The Business Leader acknowledges that commencement of a program that the Business Leader has registered for is conditional upon TAF receiving sufficient interest in the program to make it viable for the program to be delivered, such condition to be a condition subsequent for TAF’s sole benefit. TAF will use its best endeavours in coordinating a suitable commencement date for all interested Business Leaders and announce the program commencement date as soon as reasonably practicable following the satisfaction of the condition under this clause.
- 2.2 In the event that TAF decides that the above condition is not met and the program is no longer delivered, TAF will immediately refund any deposit received from the Business Leader pursuant to clause 4.2.a, subject to clause 14.5.
3. Delivery of Services
- 3.1 TAF will provide the Business Leader with either face-to- face or virtual business enablement services, as detailed in the program plans provided to the Business Leader, the scope of which may include (but not limited to) workshops, coaching, customised enablement, access to collaborators and introductions to appropriate third parties.
- 3.2 Business Leader will be required to attend all workshops, roundtables, seminars, and progress meetings arranged by TAF either in person or virtually (subject to law and regulations applicable at the time).
4. Price and Payment
- 4.1 Unless agreed otherwise in writing, TAF charges a program fee per Business Leader based on each program. TAF may alter its program fee from time to time by notice in writing prior to commencement of a program.
- 4.2 The program fee is payable as follows:
- Payment of a deposit equivalent to 50% of the total program fee in cleared funds prior to the commencement of the program; and
- TAF will invoice the Business Leader in respect of the balance of the program fees in three (3) equal instalments depending on the progress of the program at TAF’s sole discretion.
4.3 Payment of TAF’s invoice is required within seven (7) days from the date of the invoice, time being of the essence.
5. Default and Consequences
5.1 If the Business Leader defaults in payment of any invoice when due, the Business Leader shall:
- Pay default interest on overdue amounts from the date payment falls due to the date of payment at the rate of 5% above TAF’s bank’s overdraft rate per month; and
- Be liable for all costs and disbursements incurred by TAF in pursuing the debt including legal costs on a solicitor-client basis in connection with the enforcement or attempted enforcement of TAF’s rights and/or remedies including the collection and attempted collection of any unpaid monies due.
5.2 Without prejudice to TAF’s other remedies at law, TAF shall be entitled to remove the Business Leader from its program (notwithstanding that the program may remain unfulfilled) and all amounts owing to TAF shall at that time, whether or not due for payment, become immediately payable in the event that:
- Any money payable to TAF becomes overdue beyond the time stipulated for payment; or
- The Business Leader becomes insolvent, convenes a meeting with its creditors, or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- A receiver, manager, liquidator or similar person is appointed in respect of the Business Leader.
6. Relationship Between TAF and Business Leader
6.1 These Terms do not constitute, and nothing contained in these Terms will be deemed or construed to constitute TAF (or a director of TAF) a partner, agent, officer, and/or representative of the Business Leader or to create any trust and these Terms will not give and will not be construed as giving to TAF (or a director of TAF) any of the liabilities arising from a partnership, agency or representative relationship with the Business Leader.
6.2 The parties agree that the true nature of relationship between TAF and the Business Leader shall be that of an independent contractor, where TAF is contracted to provide consulting services to the Business Leader.
7. Limitation of Liability
THE ACCELERATION FOUNDRY LIMITED TERMS OF ENGAGEMENT
7.1 The that:
Business Leader acknowledges and understands
- (a) Any advice that TAF gives are constructive guidance only and is not to be construed as professional advice (such as legal or accounting advice); and
- (b) The Business Leader will use its own judgement in deciding to adopt any practice, strategy or guidance recommended by TAF in the course of any program and TAF makes no representation or warranty whatsoever to the Business Leader as to the actual
impact of the programs on the future success of the
Business Leader’s business; and
(c) The Business Leader assumes full responsibility for
its business decisions; and
(d) Where TAF provides the Business Leader with
introduction to any relevant third-parties (such as business advisory specialists), TAF makes no representation as to the professional competence of that third-party and is not an agent, officer, representative or partner with any third-parties that TAF may introduce. Accordingly, the Business Leader can engage with any third-parties that TAF introduces on an arms-length basis in reliance on the Business Leader’s own judgement.
- 7.2 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Business Leader acquires the services from TAF for the purposes of business in terms of sections 2 and 43 of the Consumer Guarantees Act 1993.
- 7.3 Where the Business Leader acquires the services for business use, all conditions, guarantees and/or warranties contained or implied under the Contract and Commercial Act 2017 are hereby excluded and negated to the fullest extent permissible by law.
- 7.4 Further to the above, TAF shall be under no liability whatsoever to the Business Leader for any direct, indirect and/or consequential loss and/or expenses (including loss of opportunities and all forms of contingent losses) suffered by the Business Leader arising out of or in connection with the services and programs (including workshops, roundtables, seminars, events and interactions) provided by TAF unless due to the gross negligence or dishonesty of TAF.
- 7.5 Except as expressly provided in these Terms, TAF excludes any and all liability and/or warranties whether express, implied, statutory or otherwise relating in any way to the services and to the programs delivered by TAF to the maximum extent permitted by law. Insofar as TAF may be held liable, the maximum liability of TAF, whether in contract, tort (including negligence), equity, under statute or otherwise for any loss, damage or injury arising directly or indirectly from any breach of TAF’s obligations in relation to the provision of the services under these Terms is limited to the actual total amount that the Business Leader paid to TAF.
8. Intellectual Property
- 8.1 TAF retains all copyright and intellectual property in and to any materials, texts, advice, guidance, manuals, and technical information provided to the Business Leader in the course of providing the services but grants to the Business Leader a royalty-free license to use such intellectual property in the course of its business, subject to provisions of clause 9.
- 8.2 Any new intellectual property developed in the course of providing the services to Business Leader (such as new standard of operation, manual, and/or business process) will vest exclusively in the party that created the intellectual property. Where TAF creates new intellectual property in the course of any program, TAF grants the Business Leader a royalty-free license to use such new intellectual property in the course of its business. Where
the Business Leader creates new intellectual property in the course of any program, the Business Leader permits TAF to refer to the new intellectual property for marketing purposes (despite anything to the contrary under the provisions of the Terms) on the basis that TAF will use its best endeavours to protect the privacy and business interests of the Business Leader. For completeness, TAF may choose in its sole discretion to refer to the new intellectual property in its publications of success stories and/or case studies on its website, social media or any client-facing outlets.
9.1 For the purpose of this clause, Confidential Information
includes all information that:
- is designated by the respective parties as confidential; or
- is of a confidential or sensitive nature; or
- is marked or denoted as confidential; or
- a reasonable person to whom that information is disclosed and/or to whose knowledge the information comes would consider confidential
including but not limited to commercial arrangement, contractor relationship, financial and accounting figures, trade secrets, profit margins, and internal processes, etc.
For completeness, all presentation and/or training materials (including materials produced by collaborators), any information relating to the business of TAF, its plans, processes, products, intentions or market opportunities, method of implementation and support are Confidential Information for the purpose of this clause 9.
9.2 Both TAF and the Business Leader agree to keep the Confidential Information of the other party confidential (and take all reasonable steps to preserve such confidentiality) and neither TAF nor the Business Leader may:
- disclose any Confidential Information of the other party to anyone else except with the prior written consent of the other party; or
- use the name of the other party in publicity releases, advertising or promotion of the party unless the other party has given its prior written consent (which must not be unreasonably withheld) or in accordance with the provisions of the Terms; or
- use the Confidential Information for any other purpose not expressly permitted under the Terms, especially to procure private benefits and/or to compete with each other. For completeness, the Business Leader agrees that any copies or reproductions of Confidential Information in any form or medium must be destroyed or returned to TAF within 5 days of written notice and the Business Leader must provide confirmation of compliance of its obligation through returned written notice.
10.1 If the Business Leader is a company or trust, the director(s) or trustee(s) signing the Terms, in consideration for TAF agreeing to provide the services to
the Business Leader at their request, also sign the Terms in their personal capacity and jointly and severally personally undertake as principal debtors to TAF the payment of any and all monies now or hereafter owed by the Business Leader to TAF and indemnify TAF against non-payment by the Business Leader. Any personal liability of a signatory hereto shall not exclude the Business Leader in any way whatsoever from the liabilities and obligations contained in the Terms. The signatories and the Business Leader shall be jointly and severally liable under the Terms and for payment of all sums due thereunder.
10.2 If the Business Leader is a trust, the Terms will bind each trustee of that trust and each trustee personally. TAF’s rights will only be limited if that trustee is an independent trustee. The liability of an independent trustee shall be limited to the assets of the trust.
- 11.1 TAF will only deal with the Business Leader’s personal information in accordance with the Privacy Act 2020 and the Terms.
- 11.2 For the purposes of facilitating the administration and promotion of TAF, the Business Leader and its relevant Guarantor(s) authorises and provides its express consent to TAF:
- (a) to request all information it may require about the Business Leader and/or the Guarantor(s) and the Business Leader and/or the Guarantor(s) agree to release such information to TAF;
- (b) to collect information from any third parties and the Business Leader and/or Guarantors authorise those third-parties to release such information to TAF;
- (c) to hold and store all information given to TAF by the Business Leader and/or the Guarantor(s) or from any third parties; and
- (d) to use such information for any purpose related to facilitating the administration of TAF’s business, including for the purpose of debt collection or notifying a default, and for marketing as under clause 11.4.
- 11.3 TAF considers client confidentiality to be of utmost importance and will treat all information it holds about the Business Leader and Guarantor(s) in strict confidence. Business Leader and Guarantors information will be collected, held and used on the condition that it will be held securely at TAF’s cloud storage medium and it will only be accessible by TAF’s authorised employees and agents who need access for the administration of TAF and for agreed purposes under this clause.
- 11.4 For the purpose of ongoing administration and promotion of TAF, the Business Leader and Guarantor(s), by signing the Terms, gives its express consent and authority as required under Privacy Act 2020 to TAF to:
- (a) use information provided by the Business Leaders and Guarantors including names, business addresses, and contact details to compile TAF reports and TAF performance reviews, which may be made available to the media; and
- (b) take pictures and create video of the Business Leader and/or Guarantor(s) (including those
where the Business Leader and Guarantor(s) may be identifiable) for display on TAF website, TAF social media platforms (including LinkedIn, Facebook, Instagram), TAF public relations, TAF promotional communications and material, TAF media publications, and TAF record keeping.
12.1 Either TAF or the Business Leader may terminate the Terms by no less than fourteen (14) days’ notice in writing. Termination does not relieve the Business Leader’s obligation to pay for services rendered up to the date of termination.
12.2 The parties acknowledge and agree that clauses 8, 9, 10, 11 and 13 shall survive termination and continue to be binding on the parties following termination of the Terms.
13. Survey Assurance
13.1 Where requested, the Business Leader will complete a TAF impact survey and provide updates to TAF with requested impact information for up to five (5) years after termination of the Terms.
14. General Terms
14.1 The Business Leader agrees to resolve any dispute within fourteen (14) days from the time of delivery of the services otherwise the services are deemed satisfactory to the Business Leader. Any dispute not resolved shall be filed immediately to the Disputes Tribunal or to a Mediator agreed between the parties and such decisions from mediation will be accepted as final and binding.
14.2 If any provision of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
14.3 The Terms shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
14.4 TAF reserves the right to review these Terms at any time. If following any such review, there is to be any change to the Terms, then that change will take effect from the date on which TAF notifies the Business Leader of such change.
14.5 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, pandemic, fire, flood, drought, storm or other event beyond the reasonable control of either party.
14.6 The failure by TAF to enforce any of these Terms shall not be treated as a waiver of that provision, nor shall it affect TAF’s right to subsequently enforce that provision.
15. Health and Safety
15.1 The Business Leader agrees that TAF has not and will not assume any obligation as the Business Leader’s agent or otherwise which may be imposed from the Business Leader from time to time pursuant to the Health and Safety at Work Act 2015 arising out of this engagement. TAF and the Business Leader agree that in terms of the Act, unless the services are being provided
upon TAF’s premises, TAF is not the entity that controls the place of work.
I confirm that I have read and accept these Terms: Business Leader Name:
Signed by the Business Leader: ____________________ Guarantor Name:
Signed by the Guarantor:___________________