Zap Consulting Agreement
Last updated 12 September 2024
Recitals
Zap has agreed to provide Customer with the Services contained in the Statement of Work on the terms and conditions contained in this agreement.
Agreement
1.1 Definitions
In this agreement, unless the context otherwise requires:
Approved Personnel means a person acting on Zap's behalf (with the authority to bind Zap) as set out in the Statement of Work.
Commencement Date means the commencement date set out in the Statement of Work.
Confidential Information means any information of whatever kind disclosed or revealed by the Disclosing Party to the Receiving Party under or in relation to the Agreement that:
(a) is by its nature confidential:
(b) is designated by the Disclosing Party as confidential; or
(c) the Receiving Party knows or reasonably ought to know is confidential,
but does not include information that:
(d) is published or has otherwise entered the public domain without a breach of the Agreement;
(e) is obtained from a third party who has no obligation of confidentiality to the Disclosing Party; or
(f) is independently developed or obtained without breach of the Agreement.
Data Protection Laws means:
(a) the Privacy Act 1988 (Commonwealth of Australia);
(b) the General Data Protection Regulation (EU) 2016/679 of the European Parliament as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal Act) 2018 (UK) and any regulations thereunder; and
(c) the General Data Protection Regulation (EU) 2016/679 of the European Parliament.
Deliverables means the deliverables set out in the Statement of Work.
Disclosing Party means the party who discloses Confidential Information to the Receiving Party under or in connection with this agreement.
Electronic Signature means a visual representation of a person's handwritten signature which is placed on this agreement using DocuSign, Adobe Sign or another electronic signing platform agreed by the parties.
Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure including, without limitation:
(a) hacker attack, penetration or attack of computer virus, destruction, breakdown or impossibility of use of computer system;
(b) act of God, lightning, storm, flood, fire, earthquake or explosion, adverse weather conditions;
(c) strike, lock out or other labour difficulty;
(d) act of public enemy, war (declared or undeclared), sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic, or terrorism;
(e) the effect of any applicable laws, orders, rules or regulations of any government or other component authority, coming into effect after the Commencement Date; and
(f) embargo, or a power or water shortage.
Insolvency Event means where a party:
(a) has an order made or resolution passed for its winding up, liquidated or dissolution;
(b) has a receiver, manager, controller, administrator, liquidator or similar officer appointed over any of its assets or business;
(c) has the holder of an encumbrance take possession of any property of that party;
(d) has a writ of execution levied against it or its property;
(e) is unable or ceases to pay its debts as they fall due;
(f) makes any composition, arrangements or general assignment with any creditor;
(g) is or is deemed bankrupt or insolvent;
(h) enters into liquidation;
(i) ceases or threatens to cease carrying on business; or
(j) anything occurs under the law of the jurisdiction in which a party is incorporated which has a substantially similar effect to any of the other events described in this paragraphs (a) to (i) above.
Intellectual Property Rights means all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future, including, without limitation, business, company or trade names, domain names, patents, inventions, copyright, design rights, know-how, trade marks, the right to sue for passing off, and rights to use, and protect the confidentiality of, confidential information, whether registered or unregistered, and includes the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration.
Loss means all liabilities, losses, damages, costs and expenses (including all legal costs determined on a full indemnity basis) whether incurred by or awarded against a party.
Personal Information has the meaning given to that term in the Privacy Act 1988 (Commonwealth of Australia) and any applicable Data Protection Laws.
Personnel means any employee, agent, sub-contractor, contractor, partner, representative, director or officer of a party.
Project Plan means the project plan agreed by the parties, generated on Monday.com (or other platform nominated by Zap from time and time) and provided to the Customer.
Receiving Party means the party who receives Confidential Information from the Disclosing Party under or in connection with this agreement.
Services means the services detailed in the Statement of Work.
Statement of Work or SOW means the statement of work setting out the description of the Services, Deliverables, fees and other commercial terms agreed by the parties under this agreement.
Term has the meaning given in clause 2.
Zap Privacy Policy means the Zap privacy policy accessible at zapbi.com/privacypolicy as may be updated or amended from time to time.
Zap Software means:
(a) any software supplied by or on behalf of Zap to the Customer from time to time, whether in object code, source code, reconfigurable binary or any other form, and includes any backup or other copies, modifications, enhancements and extensions; and
(b) any solution, being a pre-built set of analytics and/or data model pipelines.
1.2 Interpretation
(a) Headings are inserted for ease of reference only and do not affect the interpretation of this agreement.
(b) A reference in this agreement "dollars" or "$" means the currency specified in the Statement of Work and all amounts payable under this agreement are payable in that currency.
(c) Unless otherwise specified, if a party consists of more than one person this agreement binds each of them separately and any two or more of them jointly.
(d) An obligation, representation or warranty in favour of more than one person is for the benefit of them separately and jointly.
(e) A provision of this agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this agreement or the inclusion of the provision in this agreement.
(f) Unless expressly stated otherwise in this agreement, a reference to a schedule or clause is a reference to a schedule to, or clause of, this agreement.
(g) Unless the context requires otherwise:
(i) the singular includes the plural and vice versa;
(ii) if a word or phrase is defined, another grammatical form of that word or phrase has a corresponding meaning;
(iii) the word "includes" in any form is not a word of limitation;
(iv) a reference to a law, legislation or legislative provision includes any statutory modification, amendment or re–enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision;
(v) a reference to any document or agreement (including this agreement) is to that document or agreement as amended, novated, supplemented or replaced;
(vi) a reference to a person includes an individual, company, trust, partnership, joint venture, association, body corporate or governmental agency; and
(vii) a reference to a party to this agreement or any other deed or agreement includes that party's administrators, successors and permitted assigns.
1. Definitions and Interpretation
2. Term
This agreement commences on the Commencement Date and continues until the completion of the Deliverables unless terminated earlier in accordance with its terms (Term).
3. Services
(a) Zap agrees to provide the Services and such other or additional services as the Customer may reasonably require from time to time.
(b) Zap will provide the Services in a proper and professional manner and with all due care, skill and diligence to the reasonable satisfaction of the Customer. Zap warrants that it has the skills, qualifications, expertise and experience necessary for the proper provision of the Services in accordance with this clause.
(c) Zap (at its sole discretion) may engage third parties to perform the SOW delivery. In such circumstances, Zap will be accountable for delivery to the same extent as if it was performing the Services directly.
(d) The parties acknowledge that in providing the Services, Zap acts as an independent contractor and not as an employee, partner or agent of the Customer. Nothing in this agreement constitutes a relationship of employer and employee, principal and agent or partnership between the Customer and Zap or any of its Approved Personnel.
(e) Zap agrees that in providing the Services it is responsible for ensuring its and its Approved Personnel's compliance with all relevant laws.
4. Customer Obligations
(a) The Customer acknowledges and agrees that:
(i) Zap's performance of the Professional Services is contingent upon the Customer complying with its responsibilities under clause 4(b);
(ii) any inability or delay by the Customer in fulfilling its responsibilities under clause 4(b) may result in additional fees payable by the Customer to Zap and/or affect the Project Schedule; and
(iii) once the scope of the Services is delivered, any modification made by the Customer to the SOW becomes the Customer's responsibility, and Zap is not liable for any error that may arise from such changes.
(b) The Customer must, and procure that its Personnel (as applicable):
(i) ensure that all appropriate data backup is performed;
(ii) make available ongoing technical, operational and financial resources required to enable Zap to provide the Services;
(iii) warrant that all information the Customer provides is valid and correct, and that the Customer has not omitted anything relevant to the Services’ delivery;
(iv) if Zap's Approved Personnel are required to perform work on premises owned, occupied or otherwise controlled by the Customer, provide security passes or other necessary documentation to Zap's Approved Personnel permitting them to enter and exit the Customer’s premises as and when required with all materials and equipment required to perform the relevant Services;
(c) provide Zap's Approved Personnel with adequate access to the Customer's office space, equipment, power, and a secure line for internet access as required by Zap to perform the Services;
(d) if performance of the Services requires electronic or network transfer of data, provide and enable any network components or services required by Zap to facilitate the transfer;
(e) give Zap such access to the Customer's system administrators, key technical personnel and/or other Customer personnel with an understanding of the Customer's business requirements and with technical acumen, as is required to facilitate Zap's delivery of the Services;
(f) ensure all documentation and other information provided by the Customer to Zap's Approved Personnel is accurate, complete, and up to date;
(g) deal with:
(i) all network connectivity, performance, and configuration issues; and
(ii) all communication to the Customer’s internal users, including notification of maintenance and migration windows (as required);
(h) make appropriate system maintenance windows available as required by the Zap (or its Approved Personnel or authorised agents) to prepare for the performance of the Services;
(i) provide Zap with five (5) Business Days advanced notice of any change to a scheduled event in connection with the Services. If the Customer is unable to provide such advance notice for any reason and/or if the change to the scheduled event extends the Project Schedule or causes Zap to incur non-refundable travel costs, a Variation Notice may be required in accordance with clause 5; and
(j) assign an authorised representative to act as a single point of contact for all issues related to the Services engagement and who will be responsible for:
(i) all management direction required to meet Deliverables, including receiving any Deliverables created by Zap in connection with the Services;
(ii) assignment of responsibilities to Zap's Approved Personnel;
(iii) ensuring availability of information and such other resources needed by the Zap's Approved Personnel to complete his/her assignments; and
(iv) managing the process of deliverable acceptance, being the primary contact for all business decisions, and providing any required approvals for changes to the scope and cost of the Services (if any).
5. Changes to the Services
(a) The Customer acknowledges and agrees that the Services are based on Zap's understanding of the Customer’s requirements as at the Commencement Date.
(b) Zap reserves the right to update this Agreement from time to time. Unless otherwise agreed in writing, all Services performance will be conducted in accordance with the most recent standard Consulting Agreement terms available on Zap’s website.
(c) All notices of variation under this Agreement must be delivered in writing (including email) to be effective (Variation Notice).
(d) No modification in relation to this Agreement shall be valid unless a Variation Notice is agreed upon by authorised representatives of both parties in writing (including by email) and it is signed by or on behalf of all parties.
6. Zap Assumptions and Dependencies
6.1 Customer acknowledgements
The Customer acknowledges that:
(a) in performing the Services, Zap will rely on the assumptions and dependencies set out in this clause 6 and the relevant SOW; and
(b) in the event:
(i) any of the assumptions and dependencies prove incorrect or incomplete; or
(ii) the Customer fails to comply with any of its responsibilities set out in this agreement or the SOW,
Zap reserves the right to modify the price, scope, or timing of the Services.
6.2 Assumptions and Dependencies
(a) the Customer will provide dedicated, skilled Personnel who are available to assist Zap to complete the Services as required by Zap (noting that the Fees associated with the Services are contingent upon the Customer providing such Personnel);
(b) notification of deviations from the project plan and the impact in time and fees will be provided, if necessary;
(c) the Customer has in place an automated method of deploying software to end client systems;
(d) prior to the commencement of the Services, the Customer has or will procure valid licences for both the Customer and Zap to use all software required to be used as part of the Services;
(e) Project Schedule estimates represent Zap's best technical judgment based on the information available and known to Zap at the time the Project Schedule is prepared, and the actual duration of the Services may vary;
(f) Zap is not prevented from commencing the Services on the Commencement Date set out in the SOW or such other mutually agreed date, excluding circumstances where Zap has itself caused the relevant delay;
(g) the Customer does not delay in reviewing and approving the Deliverables after delivery by Zap;
(h) Services not requiring presence onsite may be performed by Zap remotely;
(i) the parties will work together in good faith to ensure the completion of the Services within the Project Schedule (as updated or amended); and
(j) all Deliverables will be delivered by Zap in English
7. Professional Services Performance Conditions
(a) Zap will not be responsible for the loss or corruption of any Customer data or for any system outage, except to the extent caused or contributed to by Zap's negligence or wilful misconduct.
(b) Except as may be purchased under a separate Zap support or service offering, Zap will not be responsible for any application or host system access that encompasses coding, scripting, application analysis, system performance, troubleshooting, or applications logins outside of the services described in the SOW. Zap has no obligation to provide support or maintenance in relation to customized scripts created in the performance of the Services under a SOW.
8. Fees
(a) The fees for the Services and the relevant payment and invoice terms are set out in the Statement of Work.
(b) The Customer agrees to accept invoices from Zap by email and to provide Zap with an email address to which invoices can be sent. The Customer also agrees to have in place the relevant procedures to ensure the Customer monitors and checks the email address for invoices that may be sent to the Customer in connection with the SOW.
(c) The Customer agrees to pay Zap in accordance with the payment terms outlined in Zap's Invoice. Late payments outside the agreed terms will accrue reasonable interest.
(d) The Customer must pay Zap the amount set out in the payment schedule as owing to Zap within the period set out in the Statement of Work.
(e) The Customer agrees to provide reasonable notice to cancel any scheduled Services hours. If reasonable notice is not provided, Zap reserves the right to invoice the Customer for these hours.
(f) If Zap has not received payment of the applicable Services fees from the Customer, then without prejudice to Zap’s other rights and obligations, Zap may limit, suspend or terminate the Customer's software access. In such circumstances, the Customer's data shall be kept for a period of 30 days after which time Zap may permanently and irrevocably delete the Customer's data. Access will be reinstated once the outstanding payment has been received.
(g) The Customer agrees to reimburse Zap for all necessary travel-related expenses incurred while performing the Services. These expenses encompass airfare, hotel stays, and ground transportation. Prior approval by the Customer and proper documentation are mandatory for all such reimbursements. Furthermore, for work-related travels, a daily allowance is allocated to cover meals and beverages. Staff are required to itemize this daily allowance on their expense report, specifying the travel dates.
(h) Zap may apply to the Customer and the Customer may approve a specific item of expenditure by Zap properly incurred in providing the Services. The Customer may approve or refuse the application in its absolute discretion.
The Customer is not required to pay expenses where Zap does not provide The Customer with written receipts or vouchers for those expenses when requested.
(i) The Customer is not required to pay expenses where Zap does not provide The Customer with written receipts or vouchers for those expenses when requested.
(j) The daily allowances, based on travel region, are as follows:
(i) Australia - AUD 60
(ii) Europe - EUR 35
(iii) United Kingdom - GBP 35
(iv) Singapore - SGD 50
(v) United States - USD 40
(vi) South Africa - ZAR 500
(vii) For other travel regions not listed in this clause 8(j), the Customer agrees to notify Zap in advance of any travel and Zap will provide the Customer with a daily allowance amount prior to any travel expenses incurred.
(viii) These designated amounts are tax-inclusive.
9. Taxes
9.1. Non-Australian resident Customers
(a) All amounts payable by the Customer to Zap under this agreement are exclusive of all applicable sales, consumption, withholding or other similar or equivalent taxes (Taxes).
(b) Should any Taxes be levied on, in respect of, or in relation to the Services, including Taxes levied on payments made by the Customer to Zap in connection with the provision of the Services, such Taxes must be paid by the Customer and are in addition to the amounts payable by the Customer to Zap under this agreement.
(c) In some circumstances, the Customer may be legally required to pay Taxes to the local tax authority instead of Zap. Where the Customer is liable to pay any Taxes to the relevant authority on behalf of Zap, the Customer must promptly provide reasonable documentary evidence substantiating the payment upon Zap's written request.
9.2 Australian resident Customers
(a) In this clause 9.2, a term or expression starting with a capital letter which is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and associated acts and legislative instruments (collectively, the GST Law) will have the same meaning as in the GST Law, unless the context otherwise requires.
(b) The parties agree that:
(i) each consideration or payment obligation in this agreement is exclusive of GST;
(ii) if GST is or becomes payable on a Supply made under or in connection with this agreement, an additional amount is payable by the party providing the consideration for the Supply equal to the amount of GST payable on that Supply, as calculated by the party making the Supply in accordance with the GST Law;
(iii) the additional amount payable under paragraph clause 9.2(b)(ii) is payable at the same time and in the same manner as the Consideration for the Supply;
(iv) unless otherwise stated in this agreement, when determining the amount of a payment under this agreement;
(A) if a party is entitled to be reimbursed or indemnified by the other party for an expense, claim, loss, liability or cost incurred in connection with this agreement, the reimbursement or indemnity payment must not include any GST component of the expense, claim, loss, liability or cost for which an Input Tax Credit may be claimed; and
(B) if a party sets off an amount under this agreement, the same principles apply to calculate the amount to be set-off, as if the amount had been paid in accordance with clause 9.2(b)(iv)(A); and
(v) if an Adjustment Event occurs, the parties must do all things necessary to make sure that the Adjustment Event may be appropriately recognised, including the issue of an Adjustment Note.
10. Privacy
(a) Each party must comply with the Data Protection Laws in the collection, use, storage and handling of any Personal Information obtained from the other party in connection with the Services.
(b) The Customer acknowledges and agrees that Zap will handle any Personal Information provided by the Customer to Zap under this agreement in accordance with the Zap Privacy Policy.
(c) If the Customer provides Personal Information to Zap in connection with this agreement, the Customer warrants to Zap that it is permitted to provide such Personal Information and has made any disclosures or obtained any consents required under the Data Protection Laws.
11. Confidentiality
(a) The Receiving Party may only use the Confidential Information of the Disclosing Party for the purposes of performing its obligations or exercising its rights under this agreement and must keep the Disclosing Party’s Confidential Information confidential.
(b) Despite cause 12(a), the Receiving Party may disclose the Confidential Information of the Disclosing Party:
(i) to those employees, agents or contractors of the Receiving Party reasonably requiring it on a need-to-know basis, provided that the Receiving Party ensures that those employees, agents or contractors keep such Confidential Information confidential in accordance with this clause 11;
(ii) to the extent required by law; and/or
(iii) with the prior written consent of the Disclosing Party.
12. Anti-bribery & Corruption
12.1 Termination by either party
Either party may immediately terminate this agreement by notice in writing to the other party:
(a) if an event of Force Majeure subsists for a continuous period of more than 45 days;
(b) if the other party is the subject of an Insolvency Event or ceases, or indicates that it is about to cease, carrying on its business, subject to any law suspending or preventing the exercise of a termination right in the relevant circumstances; or
(c) if the other party breaches a term of this agreement which in the reasonable opinion of the terminating party:
(i) is not capable of being remedied; or
(ii) is capable of being remedied but is not remedied within [#] days after receiving written notice of the breach.
12.2 Termination by Zap
Without prejudice to Zap's other rights and remedies, Zap may terminate this agreement with immediate effect by notice in writing if the Customer:
(a) commits a serious breach of this agreement; or
(b) fails to pay any amount due under this agreement within 45 days of the date of a valid invoice from Zap.
12.3 Consequences of Termination
(a) On expiry or earlier termination of this Agreement for any reason:
(i) the Customer must pay to Zap the Services Fees for any Services provided to the Customer up to and including the date of termination, whether or not an invoice has been issued for those Services as at the date of termination, and any other money owed by the Customer to Zap under this agreement as at the date of termination;
(ii) the licences granted to the Customer in respect of Zap Software by or on behalf of Zap under any agreement with Zap or a Zap authorised reseller will cease immediately; and
(iii) each party must promptly deliver to the other party all property belonging to the other party that is in its possession or control, including any Confidential Information.
(b) If this agreement is terminated by the Customer in accordance with clause 13.1, Zap will provide the Customer with a pro-rata refund of any Services Fees paid in advance by the Customer to Zap for Services not supplied by Zap as at the date of termination.
(c) Expiry or termination of this Agreement will not affect any claim which a party may have against the other in respect of the period before termination of the Agreement or other accrued right or remedy of a party.
13. Dispute Resolution
(a) If a dispute arises out of or relating to this agreement (Dispute), either party may give written notice to the other party specifying the nature and particulars of the Dispute (Dispute Notice).
(b) Within 10 Business Days of the date of delivery of the Dispute Notice, each party must nominate an authorised representative and procure those representatives to use reasonable endeavours to resolve the dispute by good faith negotiations on a without prejudice basis.
(c) Neither party may commence any legal proceedings with respect to a Dispute unless it has complied with the provisions of this clause 13.1 (Dispute Resolution), except to seek urgent equitable or interlocutory relief.
(d) Pending resolution of any Dispute, the parties will continue to perform their obligations under this agreement (excluding those parts that are the subject of a Dispute) without prejudice to their respective rights and remedies.
14. Force Majeure
14.1 Event of Force Majeure
(a) If a party is prevented in whole or in part from carrying out its obligations under this agreement (other than an obligation to pay money) due to Force Majeure, it will notify the other party accordingly. The notice will:
(i) specify the obligations it cannot perform;
(ii) describe the event of Force Majeure; and
(iii) estimate the time during which the event of Force Majeure will continue (if practicable).
(b) Following this notice and while the event of Force Majeure continues, the obligations of both parties which cannot reasonably be performed (other than an obligation to pay money) because of the event of Force Majeure will be suspended until they are no longer affected by the event of Force Majeure.
14.2 Mitigation and remedy of Force Majeure
A party who serves a notice under clause 15.1 will:
(a) take reasonable steps to mitigate any loss suffered by either party as a result of the inability of that party to carry out its obligations under this agreement; and
(b) remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
14.3 Liability
The parties acknowledge and agree that if a party is prevented or delayed (in whole or in part) from performing its obligations under this agreement (other than an obligation to pay money) due to a Force Majeure event, that party will not be in breach of this agreement or liable for any such failure or delay in performance.
15. Anti-Bribery and Corruption
Each party will and will procure that its personnel will (as applicable):
(a) comply with all applicable laws relating to anti-bribery and corruption (Relevant Requirements);
(b) not engage in any conduct which will or may constitute an offence under any of the Relevant Requirements;
(c) not do, or omit to do, any act that may cause the other party to breach of any of the Relevant Requirements;
(d) promptly report to the other party any request or demand for any undue financial or other advantage received by it in connection with this agreement; and
(e) during the Term, have and maintain in place its own policies and procedures to ensure compliance with the Relevant Requirements and enforce them where appropriate.
17. Liability
(a) If Zap breaches any warranties set out in this Agreement or a condition that is implied by law and which is not capable of being excluded, the parties agree that Zap’s liability will be limited to, at Zap’s discretion to either:
(i) resupply of the relevant non-conforming Services;
(ii) paying the cost of such re-supply; or
(iii) refund to the Customer the fees paid for the relevant non-conforming Services.
(b) Neither party will be liable to the other party whether in tort (including negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise (even if Zap knew or should have known there was a possibility the Customer could suffer or incur such loss or damage) for:
(i) any special, indirect, incidental, consequential, or punitive damages or loss; or
(ii) any loss of profits, loss of business, loss of chargeable time, loss of anticipated savings, depletion of goodwill or similar losses however caused.
(c) In no event will Zap's liability to the Customer arising out of or in connection with the Services or this Agreement, (whether in contract, tort or otherwise) exceed 50% of the Services Fees actually paid by the Customer under this agreement.
18. Warranties
18.1 Mutual Warranties
Each party represents and warrants to the other party that:
(a) it has full authority to enter into this agreement and is not bound by any agreement with any third party that adversely affects this agreement; and
(b) it has and will maintain throughout the Term, all necessary powers, authority and consents to enter into and fully perform its obligations under this agreement.
18.2 Zap Warranties
(a) Zap represents and warrants that:
(i) it is free to provide the Services and has no other written or oral commitments that would breach the confidentiality agreement entered into by Zap with any third party;
(ii) all Services will be performed by suitably qualified and experienced persons; and
(iii) the Services will be fit for the purpose for which they are supplied.
(b) To the maximum extent permitted by law, Zap does not warrant that the performance of the Services or provision of the Deliverables will be error-free, or that the documentation and/or the information obtained by the Customer through the Services and/or Deliverables will meet the Customer's requirement or produce particular outcomes or results (irrespective of whether the Customer has informed Zap about how the Customer intends to use the Services and/or the Deliverables).
(c) The Customer acknowledges and agrees that any alteration, change, modification, or repair made to the Services and/or Deliverables (as applicable) other than those made by Zap will void the warranties provided by Zap to the Customer under clause 18.2.
19. Zap Indemnity
(a) Subject to clauses 18(b) and 21.1(b), Zap indemnifies the Customer and its Personnel (Customer Indemnified Parties) from and against any Loss incurred or suffered by the Customer Indemnified Parties arising out of a claim made or brought against the Customer Indemnified Parties by any third party that the Customer Indemnified Parties' use of the Services and/or Deliverables in accordance with this agreement infringes the Intellectual Property Rights of any third party, provided that the Customer:
(i) promptly gives Zap notice of the Claim;
(ii) gives Zap control of the Claim and any negotiations for settlement at Zap's sole expense; and
(iii) at Zap’s request and expense, gives Zap all reasonable information and assistance in connection with its handling of the claim.
(b) The indemnity in clause 20(a) does not extend to any claim:
(i) arising from the combination of the Services and/or Deliverables with other elements not under Zap’s sole control;
(ii) arising from any part of the Services and/or Deliverables that the Customer or a third-party modifies, or that incorporates specifications, designs or formulas that the Customer provides; or
(iii) that arises as a result of the Customer's or its Personnels continued use of the Services and/or Deliverables after the Customer has been notified that the Services and/or Deliverables (as applicable) infringes the rights of a third party.
(c) If the Customer is prevented from using the Services and/or Deliverables because of any actual or threatened infringement of third party Intellectual Property Rights, then at Zap’s option, Zap shall promptly either:
(i) obtain for the Customer the right to continue using the affected part of the Services and/or Deliverables; or
(ii) replace or modify the affected part of the Services and/or Deliverables so that it becomes non-infringing.
20. Intellectual Property
(a) Nothing in this Agreement will function to transfer any of either Parties’ pre-existing Intellectual Property rights to the other Party. Each Party will retain an exclusive interest in and ownership of its Intellectual Property developed before this Agreement or developed outside the scope of this Agreement.
(b) Each party acknowledges that all pre-existing Intellectual Property rights remain the sole property of the owner. Ownership of pre-existing Intellectual Property rights remains unchanged by this agreement, other than as expressly set out in this agreement.
(c) Any and all intellectual property rights created under this Agreement is the exclusive property of Zap.
(d) Once the invoices have been paid in full, Zap agrees to grant the Customer a non-exclusive, non-transferable, non-sublicensable, worldwide, and royalty-free license to use the deliverables specified in the SOW in the ordinary course of the Customer's business. This license granted under this Agreement is perpetual and irrevocable.
21. General
21.1 Non-solicitation
During the term of this Agreement and for 12 months thereafter, neither Party will, directly or indirectly, recruit, solicit, or induce, or attempt to recruit, solicit, or induce any of the Company’s employees or contractors for work at another company.
21.2 Publicity
(a) Subject to clause 21.2(b), the Customer authorises Zap to:
(i) make public statements or announcements (including in promotional materials), and issue any press release or like statement, stating that Zap has entered into an agreement for the supply of Services with the Customer; and
(ii) use the Customer's name, logo, or trade mark solely to identify the Customer as a customer of Zap on the Zap website and/or in printed materials.
(b) The Customer may at any time revoke the authorisation granted to Zap under clause 21.2(a) by written notice.
21.3 Variation
No variation of this agreement will be legally binding on either party unless in writing and signed by both parties.
21.4 Severance
If the whole or any part of this agreement is invalid, unenforceable, illegal, void or voidable for any reason, this agreement will be construed and be binding on the parties as if the invalid, unenforceable, illegal, void or voidable part had been deleted from this agreement or read down to the extent necessary to overcome the difficulty.
21.5 Waiver
A waiver by either party of any breach or a failure to enforce or to insist upon the observance of a condition of this agreement will not be a waiver of any other or of any subsequent breach. A waiver must be in writing and signed by the party granting the waiver.
21.6 Relationship of the parties
The parties agree that Zap is engaged as an independent contractor and nothing in this agreement is to be construed as constituting a partnership, employment relationship, agency relationship or joint venture between the parties.
21.7 Further assurances
Each party must, at its own expense, promptly do all things and execute all documents reasonably necessary to give effect to this agreement and all transactions incidental to it, and must use all reasonable endeavours to cause relevant third parties to do the same.
21.8 Assignment and novation
Zap may in its sole discretion assign or novate any of its rights and obligations under this agreement. The Customer must not assign or transfer any of its rights or obligations under this agreement without obtaining Zap's prior written consent (which may be given or withheld in Zap's absolute discretion).
21.9 Survival
Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement will remain in full force and effect, including but not limited to all clauses in this agreement relating to payment, confidentiality, privacy, warranties, indemnities, limitations on liability, dispute resolution, and intellectual property.
21.10 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.
21.11 Governing law and jurisdiction
(a) This agreement is governed by and is to be construed in accordance with the laws of the State of Victoria and the Commonwealth of Australia without giving effect to any choice of law rules that would cause the application of laws of any other jurisdiction.
(b) Each of the parties irrevocably and unconditionally agree to submit to the exclusive jurisdiction of the courts of the State of Victoria and the Commonwealth of Australia.
21.12 Counterparts
This agreement may be executed (including by way of Electronic Signature) in any number of counterparts, each of which constitutes an original, and all such counterparts taken together are deemed to constitute one and the same document.
21.13 Electronic signing
(a) The party's consent to this agreement being signed by or on behalf of a party by an Electronic Signature.
(b) Where an Electronic Signature has been used to sign this agreement, the parties warrant that their Electronic Signature was used to:
(i) identify and authenticate the person signing;
(ii) where the party is an individual, indicate that the person, intended to be bound by the terms of this agreement; and
(iii) where the party is a company, the person or persons intended to bind the company to the terms of this agreement.
Professional Services Consulting Agreement
Last updated 11 September 2024
This Agreement (the “Agreement”) governs the terms on which We provide Consulting Services. This Agreement is to be read in conjunction with the Statement of Work (SOW) document, which outlines the scope, timing and price of the Consulting Services. By signing the SOW, You agree to be subject to the terms of this Agreement. In the event of any conflict between this Agreement and the SOW, the SOW will take precedence.
Except for Clause 3.4, this Agreement is independent of the terms, conditions and obligations contained in the various Zap software agreements
1. Consulting Services
1.1. ZAP shall be responsible for delivering the scope of Consulting Services as outlined by the SOW.
1.2. ZAP will perform the Consulting Services with reasonable care and skill by suitably experienced professionals.
1.3. ZAP (at its sole discretion) may engage third parties to perform the SOW delivery. In such circumstances, ZAP will be accountable for delivery to the same extent as if it was performing the Consulting Services directly.
2. Your Obligations
2.1. Make available ongoing technical, operational and financial resources required to enable Us to provide the Consulting Services.
2.2. Warrant that all information You provide is correct and that You have not omitted anything relevant to the Consulting Services’ delivery. You acknowledge that the provision of Consulting Services is contingent on You providing valid and current information.
2.3. You acknowledge that the provision of the Consulting Services is inherently complex and may not be free from errors and that You have been advised to verify the work produced under this Agreement.
2.4. You acknowledge that, once the scope of the Consulting Services is delivered, any modification made by You to the SOW becomes your responsibility, and Zap is not liable for any error that may arise from such changes.
3. Fees for Consulting Services
3.1. You agree to accept invoices from Zap by email and to provide Zap with an email address to which invoices can be sent. You also agree to have in place the relevant procedures to ensure You monitor and check the email address for invoices that may be sent to You in connection with the SOW.
3.2. You agree to pay Zap in accordance with the payment terms outlined in our Invoice. Late payments outside the agreed terms will accrue reasonable interest.
3.3. You agree to provide reasonable notice to cancel any scheduled Consulting Services hours. If reasonable notice is not provided, Zap reserves the right to invoice you for these hours.
3.4. If Zap has not received payment of the applicable Consulting Services fees from You, then without prejudice to Zap’s other rights and obligations, Zap may limit, suspend or terminate Your software access. In such circumstances, Your Customer Data shall be kept for a period of 30 days. Access will be reinstated once the outstanding payment has been received.
3.5 You agree to reimburse Us for all necessary travel-related expenses incurred while performing the Consulting Services. These expenses encompass airfare, hotel stays, and ground transportation. Prior approval by You and proper documentation are mandatory for all such reimbursements. Furthermore, for work-related travels, a daily allowance is allocated to cover meals and beverages. Staff are required to itemize this daily allowance on their expense report, specifying the travel dates.
The allowances, based on travel region, are as follows:
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Australia - AUD 60
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Europe - EUR 35
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United Kingdom - GBP 35
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Singapore - SGD 50
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United States - USD 40
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South Africa - ZAR 500
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Other - please contact us
These designated amounts are tax-inclusive.
4. Cancellation & Termination
4.1. Either Party may terminate the SOW for any reason with the provision of 30 days’ notice.
4.2. If You cancel the order for any reason, We will invoice You, and You must pay Us for all Consulting Services rendered up until the effective date of cancellation.
4.3. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
5. Confidentiality & Non-disclosure Agreement
5.1. Zap shall not
5.1.1. Disclose to any third party any details regarding Your business, including, without limitation any information regarding any of Your information, business plans, pricing, or planned price points (the “Confidential Information”),
5.1.2. Make copies of any Confidential Information or any content based on the concepts contained within the Confidential Information for personal use or for distribution unless requested to do so by You, or
5.1.3. use Confidential Information other than solely for Your benefit.
5.2. This section shall not apply to Confidential Information if it can be demonstrated that:
5.2.1. it was in the public domain at the time of Zap’s communication thereof to You or it subsequently entered the public domain through no fault of Zap;
5.2.2. was already in Zap’s possession free of any obligation of confidence at the time of Zap’s communication of it to You, or it was subsequently rightfully communicated to Us free of any obligation of confidentiality.
5.3. The obligations contained in this section shall survive any termination of this Agreement, howsoever caused.
6. Limited Warranty & Disclaimer
6.1. To the extent allowable by the law, Zap does not warrant the delivery of the SOW will be error-free, or that the Consulting Service, documentation and/or the information obtained by You through the Consulting Service will meet Your requirements or produce particular outcomes or results (irrespective of whether You informed Zap about how You intend to use the Consulting Service at the point of purchase);
6.2. If You purchased Your Subscription or any other related Consulting Services from any distributor, reseller (including a Zap reseller) or dealer You should investigate and satisfy yourself regarding their experience, skills and qualifications. Any such third party from whom You have purchased the Consulting Services is an independent contractor and is expressly not appointed or authorized by Zap as its servant or agent. No such person has any authority, either express or implied, to amend this Agreement, or to enter into any contract or provide any representation, warranty or guarantee with or to You on Zap’s behalf, or otherwise to bind Zap in any way whatsoever. Zap will not be responsible for any modifications made to the Consulting Service by such persons, nor for any of their acts or omissions.
6.3. YOU ARE RESPONSIBLE FOR ADOPTING REASONABLE MEASURES TO:
6.3.1. ENSURE THE ACCURACY OF YOUR CONTENT AND THE PROCESS BY WHICH IT IS INPUTTED;
6.3.2. EXAMINE AND CONFIRM RESULTS OBTAINED BEFORE YOU RELY ON IT;
6.3.3. ADOPT PROCEDURES TO IDENTIFY AND CORRECT ERRORS AND OMISSIONS; AND
6.3.4. RECONSTRUCT OR REFRESH YOUR CONTENT
6.4. If Zap breaches any warranties set out in this Agreement or a condition that is implied by law and which is not capable of being excluded, the parties agree that Zap’s liability will be limited to, at Zap’s discretion to either
6.4.1. resupply of the relevant non-conforming Consulting Services;
6.4.2. paying the cost of such re-supply; or
6.4.3. refund to You the fees paid for the relevant non-conforming Consulting Services.
6.5. To the extent permitted by law, You agree that:
6.5.1. The total liability of Zap and Your exclusive remedy for any and all claims arising out of or related to the Agreement, regardless of the form of the action, will be limited to 100% of the total fees paid by You to Us under the Agreement; and
6.5.2. We will under no circumstances be liable to You for any loss of profit, loss of revenue, loss of data, loss of goodwill or business interruption or any indirect, consequential, or punitive damages.
6.5.3. You agree that any alteration, change, modification, repackaging or repair made to the Consulting Services (other than those made by Zap) will void the Limited Warranty provided under this Agreement.
7. Indemnification
7.1. If You receive notice of any claim that Your use of any part of the Consulting Services, provided by ZAP, infringes any third party’s intellectual property right in a patent, copyright, or trade secret (an “Indemnity Claim”), ZAP shall defend and shall indemnify and hold You harmless by paying any resulting costs and damages finally awarded by a court of competent jurisdiction with respect to any such Indemnity Claim provided that You:
7.1.1. notify ZAP in writing promptly upon becoming aware of the Indemnity Claim;
7.1.2. do not independently defend or respond to any claim or threatened claim and give ZAP the right to settle the Indemnity Claim in ZAP’s sole discretion and at ZAP’s expense.
7.1.3. at ZAP’s request and expense, give ZAP such information and assistance as is reasonable under the circumstances.
7.2. This indemnification in 7.1 does not extend to any Indemnity Claim arising from the combination of the Consulting Service with
7.2.1.1. other elements not under ZAP’s sole control;
7.2.1.2. from any part of the consulting Service that You or a third-party modify, or that incorporates specifications, designs or formulas that You provide;
7.2.1.3. which arises as a result of Your continued Use of the Consulting Service deliverables after You have been notified that it infringes the rights of a third party.
7.3. You shall indemnify and hold ZAP, its Affiliates and its officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:
7.3.1. Your use of the Consulting Service
7.3.2. a breach of this Agreement by You;
7.3.3. Your acts, errors or omissions;
7.3.4. any claim alleging that use of the Consulting Service infringes the rights of, or has caused harm to, a third party;
7.3.5. any claim alleging that Your use of the Consulting service is in breach of this Agreement infringes the rights of, or has caused harm to, a third party.
7.4. Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives the end of this Agreement. It is not necessary for a Party to incur expense or make payment before enforcing a right of indemnity conferred by this Agreement.
8. Intellectual Property
8.1. If You supply Us with any content or intellectual property rights in any form – including under license – You represent and warrant that You have the full rights to use (and have Us use) the content in our provision of the Consulting Services to You.
8.2. Nothing in this Agreement will function to transfer any of either Parties’ pre-existing Intellectual Property rights to the other Party. Each Party will retain an exclusive interest in and ownership of its Intellectual Property developed before this Agreement or developed outside the scope of this Agreement.
8.3. Any and all intellectual property rights created under this Agreement is the exclusive property of ZAP.
8.4. Subject to Clause 8.5, You will not acquire any rights, including but not limited to Intellectual Property rights in any deliverables created by ZAP in providing the Consulting Services. This includes any materials created that are improvements on material provided to Us by You or any material or content previously created by Us.
8.5. Once the invoices have been paid in full, ZAP agrees to grant You a non-exclusive, non-transferable, non-sublicensable, worldwide, and royalty-free license to use the deliverables specified in the SOW in the ordinary course of Your business. This license granted under this Agreement is perpetual and irrevocable.
8.6. You must not modify, remove or destroy any Intellectual Property Rights used in the material provided as part of the Consulting Services. This includes decompiling, disassembling, reverse engineering, or attempting to reconstruct, identify, or discover any source code, underlying ideas, techniques, or algorithms except to the extent required in connection with Your use of the Consulting Services as contemplated by the SOW.
9. Non-solicitation of Employees
9.1. During the term of this Agreement and for 12 months thereafter, neither Party will, directly or indirectly, recruit, solicit, or induce, or attempt to recruit, solicit, or induce any of the Company’s employees or contractors for work at another company.
10. No Modification Unless in Writing
10.1. All notices under this Agreement must be delivered in writing (including email) to be effective.
10.2. No modification in relation to this Agreement shall be valid unless agreed upon by authorized representatives of both Parties in writing (including email).
11. Privacy & Data Protection
11.1. ZAP takes privacy & data protection very seriously. This Agreement will be conducted in accordance with Zap’s Privacy Policy as updated from time to time.
12. Anti-bribery & Corruption
12.1. Each Party will and will procure that persons associated with them:
12.1.1. comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption (the “Relevant Requirements”);
12.1.2. not engage in any conduct which would constitute an offence under any of the Relevant Requirements;
12.1.3. not do, or omit to do, any act that may lead the other Party to be in breach of any of the Relevant Requirements;
12.1.4. promptly report to the other Party any request or demand for any undue financial or other advantage received by it in connection with this Agreement;
12.1.5. have and maintain in place during the term of this Agreement its own policies and procedures to ensure compliance with the Relevant Requirements and will enforce them where appropriate.
13. Applicable Law & Enforceability
13.1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the laws of the ZAP entity that You are contracting with.
13.2. Each Party irrevocably agrees to submit to the exclusive jurisdiction of the courts of the country and state (as applicable) of the ZAP entity that You are contracting with over any claim or matter arising out of or in connection with this Agreement or the legal relationships established by it.
13.3. The section headings in this Agreement are intended for convenience and reference only and are not intended to define, limit, or describe the scope or intent of any provisions of this Agreement.
13.4. If any provision of this Agreement is found to be void, invalid, or unenforceable, it shall be severed from and shall not affect the remainder of this Agreement, which shall remain valid and enforceable.
13.5. It is acknowledged by the parties hereto that the ZAP is being retained in the capacity of an independent contractor and not as an employee of the Corporation. This Agreement does not create a partnership or joint venture between the Parties.
13.6. ZAP reserves the right to update this Agreement from time to time. Unless otherwise agreed in writing, all Consulting Services performance will be conducted in accordance with the most recent standard Consulting Agreement terms available on ZAP’s website.