ZAP Consulting Agreement

Professional Services Consulting Agreement

Last updated 8 June 2022

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 outstanding payment has been received.

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 and Nondisclosure Agreement

5.1.  ZAP shall not

5.1.1.     Disclose to any third party any details regarding the Client’s business, including, without limitation any information regarding any of the Client’s customer 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 the Client, 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 located https://www.zapbi.com/privacy/ as updated from time to time.

12. Anti-Bribery and 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.