New Zealand

 

1. Interpretation

 

1.1 The following definitions apply in this Agreement: 

 

Academic Year means the period beginning on 1 January and ending on 31 December in the relevant year.

 

Accepted Order means the contractually binding contract formed when an Order is accepted by the Supplier in accordance with clause 5.3.

 

Agreement means the contractually binding contract between the Supplier and the Client for Services and/or Resources comprising the provisions in the Key Terms, in any Accepted Order and in these General Terms, as may be varied in writing from time to time by the parties.

 

Consumer Guarantee means a guarantee provided under Part 2 of the New Zealand Consumer Guarantees Act 1993.

 

Extraordinary Event means any of inevitable accident, Act of God, fire, strikes, lockouts or other labour interferences, riots, war or any cause beyond the reasonable power or control of the relevant party.

 

General Terms means these terms and conditions.

 

Goods or Services means goods or services which, for the purposes of the Consumer Guarantees Act 1993, are of a kind ordinarily acquired for personal, domestic or household use or consumption.

 

Key Terms means the document signed electronically by the Supplier and the Client setting out the Resources and/or Services, the Price and other key terms.

 

Materials means all materials provided by the Supplier to the Client in the course of performing the Services, including diagnostic testing materials, teaching materials and any other materials developed by the Supplier (either alone or jointly with the Client, its employees or contractors).

 

Order means an order by the Client for Resources and/or Services made in accordance with clause 5.1.

 

Price means the price payable by the Client to the Supplier for the Resources and/or Services (plus GST) under this Agreement.

 

Resources means those items the parties agree the Supplier will provide to the Client as specified in the Agreement and includes all Materials. Resources available for purchase are found on the Supplier's website: www.writerstoolbox.com 

 

Services means those services the parties agree the Supplier will provide to the Client as specified in the Agreement. Services may include access to online writing tools, diagnostic testing, consultancy services, and workshops and seminars for professional development.

 

Supplier refers to Advanced Learning Limited (trading as Writer’s Toolbox), a New Zealand company registered under the New Zealand Companies Office with company number [NZBN:9429036936274], having its registered office at Deloitte, Level 18, 80 Queen Street, Auckland Central, Auckland, 1010 , New Zealand.

 

Term means a period of Academic Years as specified in the Agreement, together with any period for which the Agreement is renewed in accordance with clause 6.5.

 

2. Services

 

2.1 The Client may Order Services from the Supplier from time to time during the Term. 

 

2.2 If the Client Orders Services additional to the Services described in the Key Terms, the Supplier will respond to the Order in the manner contemplated by clause 5.3.

 

2.3 The obligation of the Supplier to provide the Services purchased by the Client for any Academic Year terminates at the end of the relevant Academic Year, on the basis that such Services do not carry over from one Academic Year to the next.

 

2.4 The Client shall not be entitled to any refund for Services which have been purchased for any Academic Year but not used in the relevant Academic Year, except where mandated by applicable law.

 

3. Online Writing Tools

 

3.1 If the Services include access to online writing tools, the following provisions in this clause 3 will apply.

 

3.2 The Supplier grants the Client a non-exclusive licence to access the Supplier’s online writing tools for the Term.

 

3.3 Access to the online writing tools will not commence unless and until the Supplier has received payment of its invoice in full for those Services in accordance with clause 6.

 

3.4 If the Term is greater than one Academic Year and the Client has elected to increase the number of licences to access the online writing tools during an Academic Year, this increased licence number becomes the new automatic roll-over number for the next and each subsequent Academic Year of the Term (subject to any further increase under this clause 3.4).

 

3.5 If the Client has received a discount on the Supplier’s standard single Academic Year pricing for licences to access online writing tools (including any discount offered on annual administration fees) due to the Client committing to a Term which is greater than one Academic Year and the Agreement is terminated in accordance with its terms prior to the end of such original Term, the Client will (in addition to any other payments due to the Supplier and any other rights and remedies of the Supplier) pay the Supplier on demand an amount equivalent to the total accumulated discount (calculated from the date the Supplier commenced providing those Services to the termination date).

 

4. Professional Development Services

 

4.1 If the Services comprise delivery of professional development Services (either as one-off Services or as a package across a period of time), the following provisions in this clause 4 will apply.

 

4.2 The date(s) for the provision of professional development Services by the Supplier must be agreed in writing between the Supplier and the Client (each date being referred to in this clause 4 as a “booking”). Should the Client wish to cancel or change any booking, the Client must give a minimum of three weeks' written notice to the Supplier prior to the date of the relevant booking. If such notice is not given, the Client agrees to pay an amount equivalent to 20% of the professional development Services fees for each day(s) of the affected booking as a lost earnings payment to the Supplier.

 

4.3 Should the Client cancel or change bookings for an Academic Year and a replacement date during the same Academic Year for the booking cannot be agreed in writing, any amount paid by the Client for the professional development Services to be delivered on the date of the original booking shall be forfeited and the obligation of the Supplier to provide such Services terminates at the end of the relevant Academic Year, on the basis that such Services do not carry over from one Academic Year to the next.

 

4.4 Any proposed changes to the professional development Services programme in the Client’s school, such as the addition of staff or Services, must be dealt with in accordance with the Order process set out in clause 5.

 

5. Orders and Delivery of Resources

 

5.1 The Client may make an Order for Resources and/or Services by submitting a written purchase order to the Supplier containing the following information:

 

a. the quantity and description of the relevant Resources and/or Services;

 

b. where the Supplier has advised the Client in writing of the price of such Resources and/or Services, a copy of such advice;

 

c. the address for delivery of the Resources; and

 

d. an order number.

 

5.2 Where the Client has not provided the information referred to in clause 5.1b with the Order, the Price for the Resources will be the price displayed on the Supplier's website www.writerstoolbox.com at the time the Supplier receives the Order from the Client.

 

5.3 The Supplier will notify the Client in writing whether it accepts the Order, at its sole discretion. Such notice shall set out the Price to be paid by the Client for the Resources and/or Services which are the subject of the Order.

 

5.4 If the Supplier accepts an Order for Resources, the Supplier will deliver the relevant Resources to the address specified in the Order within any timeframe agreed between the parties, provided that any delivery date shall be at least 14 days from the date of acceptance of the Order.  Risk of loss of or damage to the Resources passes from the Supplier to the Client on delivery.

 

5.5 Subject to clause 7, ownership of the Resources remains with the Supplier until the Resources have been paid for in full.

 

5.6 The Client shall not be entitled to return and/or obtain any refund for Resources which have been purchased and delivered to the Client, except where mandated by applicable law.

 

6. Price, Payment and Renewal

 

6.1 The Price for the Resources and/or Services will be the price specified in the Key Terms or in an Accepted Order (as applicable).

 

6.2 The Supplier will invoice the Client for the Price for the Services, on the following basis:

 

• in relation to Services to be delivered during an Academic Year which are agreed in advance of that Academic Year commencing, no earlier than 1 November in the year immediately preceding the Academic Year during which the Services are to be delivered; and

 

• otherwise, at any time after the date that the Services become subject to the Agreement.

 

6.3 The Supplier will invoice the Client for:

 

a. the Price for the Resources plus a delivery charge equal to the costs incurred by the Supplier in delivering the Resources to the Client; and

 

b. the Price of any travel or accommodation incurred (if required) by the Supplier’s personnel to deliver Services to locations outside the Supplier’s metropolitan area; invoiced on a monthly basis during the Term.

 

6.4 Invoices must be paid by the Client in full, without deduction or setoff, on or before the later of the following dates:

 

a. the date which is ten days following the date of the invoice; or

 

b. the payment date specified on the invoice.

 

6.5 If the Client does not pay any invoice when due, then (without prejudice to any other rights the Supplier may have) the Supplier may:

 

a. charge interest on the outstanding amount at 12% per annum (calculated daily) until payment is made in full; and

 

b. charge the Client any collection costs and legal costs on a solicitor/own client basis incurred by the Supplier in recovering the outstanding amount.

 

6.6 The Term of this Agreement shall automatically renew for subsequent periods of one Academic Year (each commencing immediately following the end of the preceding Academic Year), unless either party provides written notice of non-renewal at least sixty (60) days before the current term expires (time being of the essence). Notice may be given via email or certified mail. Any notice under this clause sent to the Supplier by email must be sent to: finance@wtbox.com. If no such notice is given, the Term of the Agreement will renew automatically, and the parties will be bound by the provisions of this Agreement for the renewed term.

 

7. Client's Responsibilities

 

7.1 The Client will provide the Supplier with access to the Client's premises and any resources or information reasonably required by the Supplier to enable it to perform the Services.

 

8. Intellectual Property

 

8.1 The Client acknowledges that all intellectual property rights (including copyright) in the Resources, any Materials and the Services covered by the licence described in clause 3.2 are owned by the Supplier or are licensed to the Supplier by a related company.

 

8.2 The Client acknowledges that the Supplier may use writing, tasks, data, and any other materials produced using its online writing tool for further research, marketing, teaching, as examples of tasks or work in the online tool or similar, or in publications so long as the candidates or users are not personally identifiable.

 

8.3 If the Services comprise diagnostic testing, the Client acknowledges that the Supplier owns all intellectual property in the test papers (including the candidates' responses) and it will not be entitled to the return of the candidates' test papers. Results will be provided in aggregated form only. The Client must retain copies of the unmarked test papers to return to candidates if it is legally required to do so.

 

8.4 The Supplier grants the Client a non-exclusive, perpetual, royalty-free licence to use the Materials and Resources for teaching and training of its students and employees only. The Client must not copy or reproduce all or any part of the Materials or Resources.  The Client must not sell or distribute the Resources and Materials to any other person.

 

8.5 If the Client, its employees or contractors copy or reproduce any part or all of the Resources at any time (whether or not during the Term), the Client must pay the Supplier, for each copy of the Resource, an amount equating to 80% of the Price of the Resource, as liquidated damages. The Client must pay these liquidated damages on demand. The parties confirm that these liquidated damages are a genuine pre-estimate of the loss that will be suffered by the Supplier if the Client were to copy or reproduce the Resources and are otherwise reasonable and proportionate to protect the Supplier's intellectual property in the Resources. If it is determined by a court of competent jurisdiction that the Client's liability for liquidated damages is deemed to be or becomes void, voidable or unenforceable in any way so as to disentitle the Supplier from claiming liquidated damages, then the Supplier is entitled to claim against the Client damages at law as an alternative to liquidated damages.

 

8.6 The Client will sign all documents and do all things reasonably required by the Supplier to give effect to this clause 8.

 

9. Privacy

 

9.1 The Client must obtain the prior consent of its students (or their parents or guardians for students under 13 years old) to participate in the Services and to provide the Supplier with students' personal information.  If students do not consent to provide their personal information they will not be able to participate in the Services.

 

9.2 If the Services comprise diagnostic testing, the Client acknowledges that the Supplier may use candidates' responses on its test papers for further research, marketing or in publications so long as the candidates are not personally identifiable.  The Supplier may retain the candidates' responses for 12 months, or longer if required for research purposes, before being destroyed.

 

9.3 Without limiting clauses 9.1 and 9.2, prior to the students participating in the Services the Client agrees to obtain any consents from students (or their parents or guardians) which are required to be collected by the Supplier or required under the Privacy Act 2020 and to otherwise comply with any obligations it may have under the Privacy Act 2020.

 

10. GST

 

10.1 Unless otherwise expressly stated in writing in this Agreement, all amounts payable by the Client in connection with this Agreement do not include an amount for GST. If GST is payable on any supply made by the Supplier under this Agreement, the Client must pay to the Supplier, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply.

 

10.2 Where the Client is required by this Agreement to reimburse or indemnify the Supplier for any loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that the Supplier will be entitled to claim for the loss or amount incurred and increased by the amount of any GST payable by the Supplier in respect of the reimbursement or payment. In this clause, words and expressions which are defined in the Goods and Services Tax Act 1985 have the same meaning given to them by that Act.

 

11. Liability

 

11.1 If the Client is a Consumer (as that term is defined in the Consumer Guarantees Act 1993), the Supplier acknowledges that the Client may have certain rights under applicable law in respect of the Consumer Guarantee as they apply to any Goods or Services supplied by the Supplier and nothing in this Agreement should be interpreted as attempting to exclude, restrict or modify the application of any such rights.

 

11.2 To the extent that the liability of the Supplier under this Agreement is not otherwise limited or excluded and to the extent permitted by law, the total liability of the Supplier in relation to a claim for breach of the Consumer Guarantee is limited (at the Supplier's discretion) to:

 

a. in the case of Resources:

i. the replacement of the Resources or the supply of equivalent goods;

ii. the repair of the Resources;

iii. the payment of the cost of replacing the Resources or of acquiring equivalent goods; or

iv. the payment of the cost of having the Resources repaired; and

 

b. in the case of Services:

i. the supply of the Services again; or

ii. the payment of the cost of having the Services supplied again.

 

11.3 If the Client makes a claim against the Supplier which includes a cause of action other than for a breach of a Consumer Guarantee (whether in tort (including negligence), contract or otherwise) for any loss, damage or injury arising directly or indirectly from any defect in the Resources and/or Services or any other breach of the Supplier’s obligations under this Agreement then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law, the Supplier expressly excludes all liability in respect of the Resources or Services supplied by the Supplier to the Client.

 

11.4 Subject to clause 11.1, neither party will be liable (whether under the law of tort, contract or otherwise) for any loss of profits or any indirect or consequential loss or damage arising out of this Agreement.

 

11.5 No failure or omission by either party to carry out or observe any of the terms and conditions of this Agreement will give rise to any claim against the party in question or be deemed a breach of this Agreement if, and to the extent, clause 16 applies.

 

12. Dispute Resolution

 

12.1 The Parties agree to use their best efforts to resolve any dispute or difference that may arise under this Agreement in accordance with New Zealand law. The following process will apply to disputes:

 

a. If a Party believes a matter is in dispute, that Party shall provide written notice to the other Party.

b. The Contract Managers shall make reasonable attempts to resolve the dispute through direct negotiation.

c. If the Contract Managers do not resolve the dispute within 14 days of receiving the written notice, the matter shall be escalated to the senior managers of the respective Parties for resolution.

d. If the senior managers do not resolve the dispute within 14 days of the escalation, the Parties shall endeavour to resolve the dispute through mediation or other alternative dispute resolution methods.

 

12.2 If a dispute is referred to mediation, the mediation will be conducted as follows:

 

a. A single mediator shall be agreed upon by the Parties. If the Parties cannot reach an agreement, the mediator shall be appointed by a reputable mediation organization.

b. The mediation shall be conducted in accordance with the standard mediation agreement of the selected mediation organization.

c. The costs associated with the mediation shall be borne by the Parties as agreed upon between them or determined by the selected mediation organization.

 

12.3 Except as expressly provided by this Agreement, each Party shall bear its own costs related to the mediation or alternative dispute resolution process conducted.

 

12.4 Both parties must try to resolve any disagreements that arise quickly, efficiently and in good faith.

 

13. Termination

 

13.1 The procedure for termination due to default is the following:

 

a. If a Party is in default (Defaulting Party) of any of its obligations under the Agreement, the other party (Innocent Party) may give notice in writing to the Defaulting Party (Default Notice).

 

b. A Default Notice must:

i. describe the default; and

ii. require that the default be remedied; and

iii. state that it is a notice given under this subclause.

 

c. If the Defaulting Party fails to rectify or make a substantial start to rectify the default within 14 days of receipt of such notice, then the Innocent Party may immediately terminate this Agreement by giving the Defaulting Party written notice of termination.  Such notice must state that it is a notice given under this subclause.

 

d. If the default is not capable of remedy, the Innocent Party, at its absolute discretion and without prejudice to any other claim for damages, may immediately terminate this Agreement by giving the Defaulting Party written notice of termination.  Such notice must state that it is a notice given under this subclause.

 

14. Grounds for immediate termination

 

14.1 It shall also be a ground for default and immediate termination by either party if the other party experiences an Insolvency Event or a serious breach of any law, including those relating to the safety, health and protection of children. 

 

15. Claim for payment following termination

 

15.1 Subject to clause 15.3, in the event of termination of this Agreement, the Supplier must give to the Client, within 7 days of termination, a claim for payment for Services performed by the Supplier up to the date of termination and for payment of any other amounts which this Agreement expressly provides the Client must pay.

 

15.2 The Client will make payment, if any, to the Supplier within 14 days of the Client receiving the Supplier’s claim for payment.

 

15.3 Any loss or expenses incurred by the Supplier as a result of termination of this document shall be a debt due and payable by the Client to the Supplier. Termination of this document is without prejudice to any accrued rights or remedies of either party.

 

16. Extraordinary Events

 

16.1 Neither Party will be liable to the other for any failure to perform its obligations under this Agreement where the failure is due to an Extraordinary Event.

 

16.2 A Party who wishes to claim suspension of its obligations due to an Extraordinary Event must notify the other Party as soon as reasonably possible. The Notice must state:

a. the nature of the circumstances giving rise to the Extraordinary Event;

b. the extent of that Party's inability to perform under this Agreement;

c. the likely duration of that non-performance, and

d. what steps are being taken to minimise the impact of the Extraordinary Event on the delivery of Resources and/or Services.

 

16.3 If a Party is unable to perform any obligations under this Agreement for 30 days or more due to an Extraordinary Event, the other Party may terminate this Agreement immediately by giving written notice.

 

17. Confidentiality

 

17.1 Each party shall at all times keep confidential, treat as privileged, and not directly or indirectly make or allow any copying, disclosure or use to be made, of any provision of this agreement or of any information including, without limitation, any pricing, specifications, reports, ideas, concepts, technology, procedures, techniques and know-how) relating to any provision, or the subject matter, of this Agreement, or any information directly or indirectly obtained from another party under or in connection with this Agreement or in relation to the business activities of another party, except to the extent: required by law; or necessary to satisfy the requirements of any stock exchange (where a party is listed on that exchange); or that parties otherwise agree in writing; or necessary to obtain the benefit of, or to carry out obligations under, this agreement; or that the information is or becomes available in the public domain without breach by a party of its confidentiality obligations under this clause or at law.

 

17.2 In the event that a party becomes aware that it is legally compelled to disclose any information to which clause 17.1 relates, that party shall immediately give written notice of the requirement for such disclosure to the other party.

 

17.3 The provisions of this clause shall continue to bind each party following termination of this Agreement.

 

18. Third Party Rights

 

18.1 Except as expressly provided for in clause 18.2, a person who is not a party to this Agreement shall not have any rights under the Contract and Commercial Law Act 2017 to enforce any of the provisions of this Agreement.

 

18.2 The affiliates of the Supplier shall have the right to enforce the provisions of this Agreement. No consent of any third party shall be required for any rescission, variation or termination of this Agreement or any part of it.

 

19. Notices

 

19.1 Every notice or other communication given under or in connection with this Agreement will be in writing and addressed to the relevant party and delivered, posted by pre-paid registered mail or sent by email to the address of that party specified in the Key Terms, or such other address as is notified by that party to the other party.

 

19.2 Every notice or other communication sent by prepaid registered mail will be deemed to have been received when delivered personally or three days after it has been put into the post.

 

19.3 In the case of any notice or other communication sent by email, it shall be sufficient proof of the fact that such notice or communication was received by the intended recipient if the sender is able to produce a record indicating that the email was sent to the relevant email address.

 

19.4 This clause 19 does not apply to notices given in formal legal proceedings.

 

20. Entire Agreement

 

20.1 The Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.

 

20.2 Each party acknowledges that it has not entered into this Agreement (including, without limitation, the Key Terms or any Accepted Order) in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement.

 

21. Miscellaneous Provisions

 

21.1 Neither party may assign its rights under this Agreement without the other party's prior written consent.

 

21.2 The Supplier is an independent contractor to the Client.  This Agreement does not create any agency, partnership or employment relationship between the parties.

 

21.3 This agreement may be signed in any number of counterparts. All counterparts executed separately when taken together constitute one Agreement and counterparts executed separately may be consolidated into a single document.

 

21.4 No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.

 

21.5 Each party shall pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

 

21.6 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

 

21.7 The law of New Zealand applies to this Agreement and the New Zealand courts have exclusive jurisdiction in respect of this Agreement.