Terms of Trade
Version 1.0, dated 10 November 2014
These terms, along with our supplied proposal, apply to all Services that we (Learning Tech) provide to you anytime, whether now or in the future. In the case of conflict between these terms and the provisions in any other agreements or documents relating to the Services, these terms shall apply and shall be paramount and supersede the conflicting provisions.
In these conditions unless the context otherwise requires:
• Company means Learning Tech.
• Buyer or you means the person, or company buying the services from the Company.
• Services mean the services and products (including learning modules and Learning Management Systems) being purchased by the Buyer from the Company.
• Agreement means the contract between the Company and the Buyer for the purchase of the services.
• Agreement price means the price of services as agreed between the Buyer and the Company.
• Person includes a corporation, association, firm, company, partnership or individual. Quotation shall mean price on offer for a fixed term. The Managing Director is the companies appointed decision maker.
• Parties include the Company and the Buyer
The Buyer may request a Quotation from the Company setting out the price and types of services to be supplied. If the Quotation is acceptable to the Buyer, the Buyer may place an order within the timeframe stated on the agreement.
If any instruction is received by the Company from the Buyer for the supply of services, it shall constitute acceptance of the terms and conditions contained herein, and within the agreement itself. Upon acceptance of these terms and conditions by the Buyer, the terms and conditions are definitive and binding.
4. Terms and Conditions
These terms and conditions and any subsequent terms and conditions issued by the Company shall apply to all orders for the services made by the Buyer after the date and time at which these conditions are first delivered or sent by email, or otherwise brought to the notice of, any employee, staff member or representative of the Buyer. It shall be the Buyer’s responsibility to ensure that these conditions are promptly brought to the attention of the appropriate staff of the Buyer, and accordingly any order made by the Buyer after the date and time described above in this clause shall be deemed to be an acceptance of these conditions.
5.1. The Price shall be as indicated on invoices (in accordance to the agreement) provided by the Company to the Buyer in respect of services supplied.
5.2. The Price is in New Zealand Dollars (unless specified on the agreement) and excludes GST.
5.3 The Price excludes any applicable bank and/or international money transfer fees, which the Buyer agrees to pay.
5.4. Time for payment for the services shall be of the essence and will be stated on the invoice, agreement, quotation, tender documents, work authorisation form or any other work commencement forms.
5.5. The Buyer agrees that the Price shall be determined by the Company, and shall take into consideration “one-off” costs such as template design and other set-up costs.
5.6. The Buyer acknowledges that the Price excludes (unless stated on the agreement) any other external software services (such as a Learning Management System subscription).
5.7. The Company reserves the right to implement a surcharge for alterations to specifications of services after the order has been placed.
6. Payment, Late Payment, Default of Payment and Consequences of Default of Payment
6.1. The method of payment will be made by cash, cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Buyer and the Company.
6.2. Subject to any provision to the contrary in the agreement, payment shall be received on or before the indicated due date on invoices (in accordance to the agreement).
6.3 Payments made are non-refundable
6.4. Late payment shall incur interest at the rate of 10% per annum calculated on a daily basis. This shall be payable on any monies outstanding under the agreement from the date payment was due until the date payment is received by the Company, but without prejudice to the Company’s other rights or remedies in respect of the Buyer’s default in failing to make payment on the due date.
6.5. Without prejudice to any other remedies the Company may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of services to the Buyer and any of its other obligations under the terms and conditions herein and on the agreement. The Company will not be liable to the Buyer for any loss or damage the Buyer suffers because the Company exercised its rights under this clause.
6.6. In the event that:
a. any money payable to the Company becomes overdue, or in the Company’s opinion the Buyer will be unable to meet its payments as they fall due; or
b. the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
c. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer; then without prejudice to the Company’s other remedies at law
d. the Company shall be entitled to cancel all or any part of any order of the Buyer that remains unperformed in addition to, and without prejudice to any other remedies; and all amounts owing to the Company shall, whether or not due for payment, immediately become payable.
7. Governing laws
These Terms of Trade will be interpreted in accordance with applicable government legislation, which will have exclusive legal jurisdiction over any dispute in relation to the services or these Terms of Trade.
8. Dispute resolution
8.1 In the event of any dispute or difference arising out of or in connection with the agreement, or the subject matter of this terms of trade, including any question about its existence, validity or termination, both the Company and the Buyer shall follow the dispute resolution procedure. The Buyer and a representative of the Company shall meet within 5 working days after the delivery a formal disputes notice and attempt to resolve the dispute through good faith discussions.
If the dispute is not resolved within that period of 5 working days, then either the Buyer or the Company may refer the dispute to mediation conducted by a mediator which we agree on or, if no agreement is reached, by a mediator of the District Court Tribunal of New Zealand.
8.2 Where a dispute is to be referred or has been referred to mediation, the Buyer and the Company will continue to meet our respective obligations under the agreement and the terms of trade as if no dispute had arisen.
9. Project changes
9.1 The scope of a project and the priorities associated with the different aspects of the project will often continue to evolve as the project progresses, problems are encountered and refinements are identified. This occurs due to a number of factors including (but not limited to) a refinement in your or our understanding of your expectations, a change in your objectives, an unforeseen circumstance, or an extension or a reduction in the scope of the project.
9.2 Project changes are a natural and expected occurrence in the services the Company provides and is not due to the fault of any particular person within the Company.
9.3 The Company will work in a flexible and collaborative manner with you during the course of the project so that the Buyer can participate and provide feedback and make necessary decisions to progress the project, including making any modifications or adjustments. If this happens, it may be necessary for the Company to vary the agreement and / or the Price.
10.1 The Company and the Buyer have the right to terminate the agreement by giving at least 30 days’ notice in writing to the other party to expire at the end of the initial period or at any time after that.
10.2 Either party may terminate this contract by written notice to the other at any time only if other party commits a breach of the agreement and/or the Terms of Trade, only when:
a. the breach is communicated to the other party within 5 working days after a breach; and
b. the disputes resolution (Clause 8) is followed.
10.3 The Company has the right to recover any outstanding costs from the Buyer, including any legal fees and time, in circumstances where a termination initiated by the Buyer that is judged by Court to be unlawful.
11. Confidential Information
10.1 The Company and the Buyer will keep all information about the agreement, the services, and other information that is confidential to the other party confidential and will not disclose this information to a third party without the consent of the other party. Each party shall ensure that its employees, subcontractors, professional advisors and agents abide by these obligations of confidentiality.
10.2 Unless we agree otherwise in writing, we will each use any Confidential Information belonging to the other party only for the purposes of fulfilling our obligations to each other under the agreement and as permitted in these terms.
10.3 Confidential Information does not include information clearly required to be disclosed by law; or is generally known and available without a party having breached its obligations under this clause 10; or is, or has been, independently and lawfully acquired or developed without the benefit or use of the other party’s Confidential Information.
12. Reservation of title
Ownership of intellectual property remains with The Company until the purchased price and all other monies owing by the Buyer, under the agreement or any other agreement to The Company, have been paid in full.
The Company warrants that it will repair or make good any defects in the goods (learning modules and/or Learning Management System), if written notice of the claim is received by the Company within seven (7) days from the date the goods were delivered. No claim shall be accepted under such warranty if any attempt to repair the defective goods is made by any person not authorised by the Company, or if the defective goods have been modified or incorrectly stored, maintained or used.
The Company shall not be liable for any loss of any kind whatsoever suffered by the Buyer as a result of any breach of any of the Company’s obligations under the agreement, including any cancellation of the contract or any negligence on the part of the Company, its servants, agents or contractors, nor shall the Company be liable for any loss, damage or injury caused to the Buyer’s servants, agents, contractors, buyers, visitors, tenants, trespassers or other persons. The Buyer shall indemnify the Company against any claim by any such person.