Terms and Conditions

These are the terms and conditions (Terms) that apply to the services offered by Upthrive Leadership (we, us, and our). Each Commercial Terms document once signed by us and the client stated in the Commercial Terms (Client) will form a separate contract (Contract) between the parties.

We are also constantly innovating and improving, so we may need to update these terms and conditions. We reserve the right to update these terms and conditions periodically. Please see our “last updated” section below. If you wish to be notified of any changes, please contact us at info@upthriveleadership.com. Where appropriate, we will notify you by email or by posting a notice on our website.

These Terms were last updated on 25.04.2024.

1. Services

1.1 We will provide the services set out in the Commercial Terms (Services) to the Client in accordance with these Terms.

1.2 The Client will:

(a) comply with its responsibilities and obligations set out in the Commercial Terms;

(b) do everything necessary to ensure that these Terms take effect;

(d) warrant that all information provided by the Client to us is true, accurate and complete and not misleading or deceptive; and

(e) notify us promptly of any actual or anticipated issues that could significantly impact on the Services.

1.3 Except as otherwise provided in these Terms, we have full control over methods, and decision making in relation to the provision of the Services. Without limiting the Client’s obligations under these Terms, we will otherwise work autonomously and not at the direction of the Client. However, we will be responsive to the reasonable needs and concerns of the Client.

2. Fees and Payment

2.1 The Client will pay us the fees set out in Commercial Terms (Fees) and the Client agrees that:

(a) Fees are expressed in New Zealand Dollars, inclusive of GST;

(b) all amounts payable by the Client shall be paid without any retention, deductions, deferment or set off, within 30 days of the receipt of our invoice or on the date(s) otherwise set out in the Commercial Terms (Payment Date);

(d) late payment shall constitute a default, and the Client shall pay default interest on overdue amounts from the date falls due to the date of payment at our overdraft rate plus 5% per month and in addition the costs of any actions taken by us to recover the debt.

2.2 If our provision of any Services is delayed due to any:

(a) breach of the Client’s responsibilities under these Terms; or

(b) fault, error, action, inaction, or omission of the Client,

we will have the right to charge the Client (in addition to the Fees) for any costs incurred by us in attempting to remedy such a delay or fault.

2.3 If the Client fails to make the payment that is due and payable by the Payment Date, we may provide written notice to the Client specifying the default and requiring payment within 7 days from the date of the notice. We may suspend further performance of the Services any time after the expiration of the notice period. We will promptly lift the suspension after the Client has made the payment. We shall not be liable for any damage or losses the Client suffers due to the suspension.

3. Confidentiality and Privacy

3.1 Information exchanged under the Contract will be treated as confidential if identified as such at disclosure or if the circumstances of disclosure would reasonably indicate such treatment (Confidential Information). Confidential Information may only be used for the purpose of fulfilling obligations or exercising rights under the Contract, and shared with representatives, affiliates, employees, agents, professional advisers or sub-contractors who are subject to binding confidentiality obligations and need to know that information to support the purpose. Confidential Information will be protected using a reasonable degree of care to prevent unauthorised use or disclosure. For the avoidance of doubt, Confidential Information includes workbooks, presentations, notes, audiovisual material generated by Upthrive Leadership, materials, and related training and coaching resources. These obligations do not cover information that is:

(a) known or becomes known to the receiving party without obligation of confidentiality;

(b) independently developed by the receiving party; or

(c) required to be disclosed by law or a governmental agency. In such case, The Client will notify us prior to any disclosure, unless the Client is prohibited from doing so by any applicable law or regulation.

3.2 The Client warrants that it complies with the Privacy Act 2020 and it has obtained the necessary consents and authorisations to allow us to process the Client or their employees, sub-contractor’s or other third parties’ personal information in the course of providing the Services. The Client will be liable to us and indemnify us fully for any breach of this warranty. By entering into the Contract, the Client agrees and shall procure that it’s employees and personnel who receive our Services agree to our Privacy Policy available at https://www.upthriveleadership.com/privacy-policy.

4. Intellectual Property

4.1 All intellectual property rights in any products, know-how, technique concept, idea, information or material owned by us prior to the commencement of our provision of Services to you, created by us independently or not created specifically for the Client (Our IP) (including but not limited to the materials, handouts, worksheet, tools and any other documents or materials that are provided or made available by us to the Client in the course of delivering our Services) remain owned by us. 4.2 To allow the Client to use the materials described in clause 4.1 we grant the Client a non-exclusive, non-transferable, revocable licence to use Our IP solely for personal use and within the Client’s organisation in the course of our Services.

4.3 The Client agrees not to use Our IP for any other purpose, not to duplicate, modify, reproduce, distribute, sell, transmit, or derive other works from Our IP, or to sell or participate in the sale of Our IP,

without our prior written consent. The Client further agrees to take all reasonable steps to protect Our IP and to prevent any unauthorised use or disclosure. 4.4 The Client acknowledges that a breach of clause 3.1 and clause 4 by the Client may result in irreparable harm for which damages alone may not be an adequate remedy, and we are entitled to equitable relief, including enforcing its rights by specific performance or injunction proceedings.

5. Termination

5.1 The Contract will start on the date set out in the Commercial Terms and will continue for the period set out in the Commercial Terms (if applicable) until:

(a) the completion of Services; or

(b) terminated in accordance with this clause.

5.2 The Contract may be terminated immediately by either party (First Party) giving notice in writing to the other party (Other Party):

(a) upon the Other Party committing any material breach of the Contract which is not capable of being remedied; or

(b) upon the Other Party committing any material breach of the Contract which is capable of being remedied and that breach is not remedied within 10 days’ written notice of the breach having given to the Other Party by the First Party; or

(d) upon an administrator, receiver or manager of any asset of the Other Party being appointed, or an order made or resolution passed for the liquidation of the Other Party.

5.3 We may terminate the Contract for cause with written notice, if we determine that the Client is acting, or have acted, in a way that has or may negatively reflect on or affect us, its prospects, or its other clients.

5.4 Suspension or termination of the Contract shall not prejudice or affect accrued rights or claims and liabilities of the parties, and we shall be entitled to payment of all fees and other costs payable, up to the effective date of termination and all further fees and costs incidental to the orderly termination of the Services.

5.5 On expiry or termination of the Contract, each party on the other party’s request promptly return any property, documentation, records or other material that is the property of the other party or otherwise contains the other party’s Confidential Information, unless retention is required under applicable law.

6. Liability and Indemnity

6.1 We make no guarantees, representations, or warranties of any kind of nature, expressed or implied with respect to the Services provided under the Contract. We shall not be liable for any indirect, special or consequential loss (such as loss of profits, loss of business or loss of reputation) suffered by the Client in connection with the Services, whether arising in contract, tort, under statute or otherwise. 6.2 Subject to clause 6.1 to the extent we are liable to the Client under the Contract, our aggregate liability to the Client whether arising in contract, tort, under statute or otherwise, shall be limited to the Fees paid by the Client under the Contract in the six months prior to the event giving rise to the liability. The

Client agrees that we are not liable or responsible for any actions or inactions, or for any direct or indirect result of any Services provided by us.

6.3 To the extent permitted by law, the Client shall indemnify and against all costs, damages, fines, penalties, punitive damages, losses, reasonable legal fees and expenses incurred or suffered by us as a consequence of:

(a) breach of any laws by the Client;

(b) breach of the Contract by the Client;

(c) any claim brought by a third party, against us arising out of any misuse or negligence by the Client in connection with the Client’s use of the Services;

(d) a default by the Client or any negligent act or omission by the Client; and

(e) providing any information to us that is not accurate, not up to date, not complete, misleading, or a misrepresentation.

6.4 The Client agrees to co-operate with us (at the Client’s own expense) in the handling of disputes, complaints, investigations, or litigation that arise as a result of the Client’s use and receipt of the Services including but not limited to disputes, complaints, investigations, or litigation that arises out of or relates to incorrect information the Client have given to us.

7. Disputes

7.1 If during the term of any Contract any dispute or difference arises between the parties, under or in relation to or in connection with the Contract or its subject matter, the parties shall attempt in good faith to settle any dispute themselves. Failing that, at the request of either party by written notice to the other, the dispute must be first be referred for mediation between the parties to an accredited mediator appointed by the Chairman for the time being of the New Zealand branch of Resolution Institute. Each party agrees to diligently and in good faith cooperate and participate in the mediation process making genuine attempts to find a solution acceptable to both parties.

7.2 The costs of the mediator appointed pursuant to this clause shall be shared equally between the parties or as the mediator sees fit and in making such assessment the mediator shall take into account the merits of the parties’ respective positions and their compliance or otherwise with the spirit of this clause.

7.3 Neither party may issue any legal proceedings (other than for urgent interlocutory relief), in respect of any such dispute, unless that party has first taken all reasonable steps to comply with clauses 7.1 and 7.2.

8. Assignment and Sub-contracting

8.1 We shall be entitled to sub-contract and use other third parties to perform some or all of our obligations under the Contract. We take full responsibility for all aspects of their performance and compliance with the Contract.

8.2 The Client may not assign, novate or transfer any of its rights under the Contract without our prior written consent. We may assign novate or transfer our rights and obligations under the Contract to our related companies or in connection with a merger, sale, reorganisation, or other change of control of our business.

9. Force Majeure

9.1 We will not be liable for any delay or failure to perform our obligations under the Contract if such delay or failure is caused by any event outside our reasonable control.

10. Relationship and Publicity

10.1 The parties acknowledge that the Contract is non-exclusive and that either party will be free, during and after the Term, to engage or contract with third parties for the provision of services similar to the Services.

10.2 The Client authorises during and upon expiry or termination of the Contract:

(a) to publicise our relationship with the Client in the form of news releases and media announcements, event development, and other promotional means. We may offer the Client the opportunity to participate in announcements made related to any work with the Client.

(b) to include the Client’s logo, name, and description on any of our brochures, websites, and other promotional material and provide a direct link both to the Client’s website and to any media coverage.

10.3 The Client agrees that we will provide Services under the Contract as an independent contractor and not as an employee or agent. The parties acknowledge that the Contract does not create a partnership or joint venture between them, and is exclusively a contract for service.

11. General Conditions

11.1 Any notice required by the Contract to be given shall be in writing and may be given by email to the addresses for each party set out in the Commercial Terms or to such other addresses as are notified by a party to the other party from time to time.

11.2 To the extent there is any conflict between the provisions of the General Terms and the Commercial Terms (and where relevant any attachment to the Contract), the Commercial Terms shall prevail. 11.3 Clauses 3 (Confidentiality and Privacy), 4 (Intellectual Property), 6 (Liability and Indemnity), 11 (General Conditions), together with any other provision in the Contract which should reasonably be expected to continue in force, will survive termination of the Contract.

11.4 No waiver of any breach of the Contract shall be treated as a waiver of any other or any subsequent breach. The failure of either party to enforce any provision of the Contract at any time shall not be interpreted as a waiver of that provision.

11.5 The Contract constitutes the entire agreement between the parties and will supersede all previous negotiations, commitments and representations. We both agree for the purposes of section 5D of the Fair Trading Act 1986 that sections 9, 12A and 13 of the Fair Trading Act do not apply.

11.6 Any variation to the Contract shall not be binding unless it is agreed in writing by both parties.

11.7 If any provision of the Contract is invalid or unenforceable, any other provision which is self-sustaining and capable of separate enforcement continues to be valid and enforceable.

11.8 The Contract shall be governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to the Contract.

Terms and Conditions

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