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Terms of Services

Date: 01.01.2024

1. TERMS OF SERVICE

1.1. These Terms are entered into between the Participant and the Company. They govern the engagement between the Parties in respect of the Services and any SOW (if applicable).

1.2. These Terms are specifically intended to be read by Participants in LetsBoot courses, which are conducted by the Company.

1.3. The definitions and rules of interpretation set out in clause 11 shall apply in respect of these Terms.

2. SERVICES

2.1. The Company will provide the Services in accordance with these Terms and any SOW.

2.2. If there is any conflict or inconsistency between these Terms and any SOW, the provisions of the relevant SOW shall prevail to the extent of that conflict or inconsistency.

2.3. In its performance of the Services, the Company shall:

(a). exercise due care and skill; and

(b). provide to the Participant, and/or make itself available to discuss, updates in relation to the Services as soon as practicable following any reasonable request by the Participant.

2.4. The time frame for the provision by the Company of the Deliverables will, if applicable, be set out in the relevant SOW. While the Company will endeavour to meet the time frames, it reserves the right (at its sole discretion) to extend these time frames, including if the Participant does not meet its obligations under these Terms or the SOW or if there is a change in the Participant’s requirements or expectations.

2.5. A minimum number of participants is required for each training. If the number of participants is not reached, all participants will be informed at least 14 days prior to the commencement of any training and all paid fees will be fully refunded.

2.6. The Company reserves the right to cancel trainings under clause 2.5 without incurring liability or fees due to a loss suffered by the Participant.

2.7. Any stated prerequisites in the training description or the SOW must be adhered to. For the avoidance of doubt, the Company reiterates the Participant is responsible for attending the course(s) with a fully functional laptop, which contained the completed prerequisite work.

2.8. The Services do not include transport and/or accommodation for the Participant.

2.9. The Company reserves the right to change the venue of the Services, if necessary. The new venue must not be more than 20km away from the original location.

3. FEES AND EXPENSES

3.1. In consideration for its provision of the Services, the Participant will pay to the Company the Fees.

3.2. The Company will provide an invoice to the Participant for the Fees. Payment of the Fees must be received in full (unless otherwise agreed) into the nominated account of the Company, at least one day prior to the start date of the course.

3.3. The Participant will reimburse the Company for all Expenses, provided that:

(a). the Participant has approved the scope or details of any such Expenses before they are incurred, including in any SOW; and

(b). the Company produces all relevant receipts to the Participant in respect of such Expenses.

3.4. The Fees and all Expenses incurred by the Company under clause 3.3 will be paid by the Participant in accordance with clause 10.2 on or before the 20th day of the month following receipt of the Contractor's monthly invoice under clause 3.2.

3.5. If a sum required to be paid by the Participant under these Terms is not paid to the Company by the due date:

(a). the Participant shall also pay interest on that sum at the Default Rate for the period beginning on the due date and ending on the date that the sum (including all accrued interest) is paid by the Participant; and

(b). the Company shall not be obliged to perform further Services unless and until such outstanding amounts are paid to the Company in accordance with clause 10.2.

3.6. If the Participant disputes all or part of an invoice it must promptly notify the Company in writing of this fact, setting out in reasonable detail the reasons for the dispute. The Participant must pay any undisputed balance of an invoice. If the Participant does not dispute an invoice within five Business Days of receipt, it will be deemed to have accepted the invoice in full.

4. INTELLECTUAL PROPERTY

4.1. The Company will own all Intellectual Property in the Deliverables.

4.2. The Parties agree that, in connection with the provision of the Services, the Company may be required to use Reserved Company Material. The Company will own all Intellectual Property in the Reserved Company Material.

4.3. The Participant agrees that, in respect of any and all material, content, presentations, submissions and creative concepts or ideas that are presented, suggested or proposed to the Participant by the Company that are not accepted or adopted by the Participant in its Campaign or in any Deliverable, all Intellectual Property subsisting in the foregoing will be and remain owned by the Company.

5. LIMITATION OF LIABILITY

5.1. The Company accepts no liability for providing the Services, unless such liability is incurred as a result of the Company’s fraud or gross negligence.

5.2. The Company shall not be liable for any indirect, consequential or special loss or damage, loss of revenue, economic loss or damage, loss of business or profits or anticipated business or profits, loss of goodwill, loss of anticipated savings or for any business interruption, whether or not that loss was, or ought to have been, contemplated by the Company.

6. CANCELLATION BY PARTICIPANT

6.1. The Participant may cancel prior to commencement of the Services, with a full refund, on the following conditions:

(a). the cancellation must be made, in writing, to the Company; and

(b). the cancellation occurs at least 21 days before the commencement of the Services (the Deadline).

6.2. If the cancellation is made after the Deadline, the Participant shall only be entitled to a 50% refund of the Fee, unless cancellation occurs within 3 days of the commencement of the Services, in which case no refund will be provided.

6.3. A cancellation is only valid after the Participant has received an email confirmation from the Company.

7. TERMINATION

7.1. The Parties may at any time mutually agree in writing that these Terms will terminate.

7.2. If a Party commits a material breach of these Terms that:

(a). is not remediable; or

(b). is remediable, and the defaulting Party does not remedy that breach within five Business Days of being required to do so in writing by the non-defaulting Party,

then the non-defaulting Party may terminate these Terms with immediate effect by giving written notice to the defaulting Party.

7.3. Either Party may terminate these Terms with immediate effect by giving written notice to the other Party if that other Party:

(a). becomes insolvent or otherwise cannot pay its debts as and when they fall due;

(b). has a receiver, administrator or liquidator appointed in relation to all or a material part of its assets;

(c). fails to comply with a statutory demand made in accordance with section 289 of the Companies Act 1993;

(d). commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or enters into any composition or arrangement with its creditors generally; or

(e). has an order made or a resolution passed for its liquidation, dissolution or winding-up.

7.4. Upon the termination of these Terms (for whatever reason):

(a). the Participant shall, within five Business Days, pay to the Company all sums due and owing to the Company under these Terms;

(b). each Party shall promptly return all property belonging to the other Party which are in that Party's possession or control;

(c). all rights granted under these Terms shall immediately cease and conclude, except where they are expressly intended to survive termination under clause 10.10; and

(d). all non-completed SOWs will be deemed to be terminated.

7.5. Termination of these Terms will not affect any accrued rights or obligations of any of the Parties.

8. DISPUTE RESOLUTION

8.1. The Parties must use reasonable endeavours to resolve any and all Disputes by negotiation.

8.2. If the Parties cannot resolve their Dispute by negotiations under clause 8.1 within 20 Business Days, a Party may, by written notice to the other, require that the Dispute be dealt with by mediation under the following terms:

(a). The mediation shall be conducted in accordance with AMINZ’s standard mediation agreement.

(b). The mediation shall be conducted by a mediator and at a fee agreed in writing by the Parties. Failing agreement between the Parties within 10 Business Days of the notice requiring mediation, the mediator will be selected and his or her fee determined by the chairperson for the time being of AMINZ (or his or her nominee).

(c). The mediation shall take place in Auckland, New Zealand at such address as determined by the mediator.

(d). The costs of the mediation, excluding the Parties' own legal and preparation costs, will be shared equally by the Parties.

8.3. The Parties may choose to resolve any and all Disputes in an alternate manner not noted in this clause 8, if mutually agreed upon.

8.4. No Party may initiate or commence court or arbitration proceedings relating to a Dispute unless it has complied with the procedure set out in this clause 8, provided that application may still be made to the courts:

(a). for interlocutory relief;

(b). to recover a debt payable; or

(c). to enforce a settlement agreed to by the Parties under this clause 8.

9. CONFIDENTIALITY AND ANNOUNCEMENTS

9.1. Except as permitted in this clause 9, no Party will disclose, communicate or distribute to any third party any Confidential Information.

9.2. Each Party may disclose Confidential Information to its Related Parties, but only where they have agreed in writing to comply with at least the same obligations of confidentiality under this clause 9. The Parties agree that they will be wholly responsible for all acts and omissions of their Related Parties concerning any Confidential Information disclosed to them.

9.3. A Party will not have to observe any duty of confidentiality concerning Confidential Information that:

(a). the other Party gives its prior written consent to the disclosure of;

(b). is required to be disclosed by law;

(c). is necessary to be disclosed to enable a Party to perform its obligations under these Terms; or

(d). at the time of disclosure is in, or subsequently enters, the public domain otherwise than by breach of any duty of confidentiality under these Terms.

9.4. No Party shall make, or permit any person to make, any public announcement or press release concerning:

(a). the Parties' entry into these Terms; or

(b). any SOW,

without the prior written consent of the other Party (such consent shall not be unreasonably or arbitrarily withheld, delayed or conditioned). Notwithstanding the foregoing, the Company (acting reasonably) shall, in respect of the Services, be permitted to publish self-promotional show reels and portfolios and make submissions for any industry or Company award or competitions.

10. GENERAL PROVISIONS

10.1. These Terms, together with all SOWs, constitute the entire agreement and understanding of the Parties relating to the matters dealt with in these Terms and supersede and extinguish any previous agreement (whether oral or written) between the Parties in relation to such matters.

10.2. All sums payable by the Participant under these Terms must be paid:

(a). in New Zealand dollars;

(b). in cleared funds;

(c). into the bank account specified in writing by the Company; and

(d). free and clear of any restriction, condition, set-off, deduction or withholding.

10.3. The Parties acknowledge and agree that the Company is and shall at all times remain an independent contractor of the Participant.

10.4. The Participant may not assign or transfer, or agree to assign or transfer, any of its rights or obligations under these Terms without the prior written consent of the Company.

10.5. No Party will be deemed to have waived any right under these Terms unless the waiver is in writing and signed by that Party.

10.6. The Company may amend these Terms provided that it gives not less than 5 Business Days prior written notice to the Participant. Any other amendment of these Terms must be mutually agreed in writing by the Parties.

10.7. If any provision of these Terms is found by a court or other competent authority to be void or unenforceable, such provision will be deemed to be deleted from these Terms and the remaining provisions of these Terms will continue in full force and effect.

10.8. The Participant has no right of set-off, withholding or deduction from or against a payment due to the Company.

10.9. Unless otherwise expressly provided in these Terms, the rights and remedies set out in these Terms are in addition to, and not in limitation of, any other rights and remedies under or relating to these Terms (whether at law or in equity).

10.10. The Parties agree that the provisions of clauses 4, 5, 6 and 9 shall survive the termination of these Terms.

10.11. These Terms will be governed by and construed in accordance with the laws of New Zealand and the Parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand for any matter arising under or relating to these Terms.

11. DEFINITIONS AND INTERPRETATION

11.1. The following definitions apply in these Terms:

AMINZ means the Arbitrators' and Mediators' Institute of New Zealand Inc.

Business Day means any day (other than a Saturday, Sunday or public holiday) on which registered banks are open for general banking business in Auckland, New Zealand.

Campaign means any campaign, project or job that the Participant has engaged the Company to undertake pursuant to these Terms or any SOW.

Company means felixideas GmbH, also acting under the trading name of letsboot.

Confidential Information means these Terms, any SOW and any non-public financial, business or commercial information relating to a Party (in any form) which the other Party may receive or obtain in connection with these Terms or any SOW.

Default Rate means 10% per annum, calculated daily and capitalised monthly.

Deliverables means all materials and content developed by the Company and provided to the Participant in connection with any courses undertaken.

Dispute means any dispute arising under or relating to these Terms.

Expenses means all expenses, costs, charges and disbursements incurred by the Company in performing the Services.

Fees means the fees payable to the Company by the Participant, as specified in any SOW.

Intellectual Property means all intellectual property, proprietary and industrial rights (whether existing in statute, at common law or in equity), including:

(a). all copyright (including in source code, object code and HTML code), rights in databases, know-how, trade secrets, methods (including business methods), technical and non-technical information, processes, characteristics, trade marks, trade names, business names, domain names, inventions, patents, design rights, discoveries, formulae and moral rights;

(b). all designs, design details and specifications, concepts, sketches, photographs, working drawings, models and presentation materials;

(c). all improvements and enhancements to any of the foregoing rights; and

(d). all applications to register, and all renewals of, any of the foregoing rights.

Reserved Company Material means any material, content or other Intellectual Property that:

(a). is already owned and/or used by the Company prior to it providing the Services;

(b). is subsequently created, developed, owned and/or used by the Company other than in the course of providing the Services; or

(c). constitutes generic or re-usable materials or content, including any proprietary software, applications, tools, templates, frameworks, code, systems, technologies, property, reports, strategies, manuals, know-how, financial approaches, business processes and methodologies and any Intellectual Property vested therein.

Services means the services to be provided by the Company to the Participant as set out on the Company website, and any SOW provided by the Company to the Participant.

SOW means a statement of work that sets out the Services to be provided for a Campaign, the duration of those Services and any other agreed matters relating to those Services. This may also include information provided on the Company website.

Participant means the individual that is engaging the Company to provide the Services.

Parties means the Participant and Company and Party means either of them.

Related Parties means, in relation to a Party:

(a). any director, officer, employee or agent of, or professional adviser to, that Party; and

(b). any related company (as defined in section 2(3) of the Companies Act 1993) of that Party.

Terms means these terms of service, as amended and/or replaced from time to time.

11.2. The following rules of interpretation apply in these Terms:

(a). References to persons include natural persons and any other body corporates (wherever incorporated).

(a). References to the Parties include their respective executors, administrators, successors and permitted assignees.

(b). Headings have been inserted for convenience only and will not affect the interpretation of these Terms.

(c). References to clauses are to those in these Terms.

(d). References to the words including, include or similar words do not imply any limitation.

(e). References to written or in writing shall include all modes of presenting or reproducing words, figures and symbols in a visible form (including via email).