Professional Development Terms and Conditions

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 the relevant year.
Agreement means this Agreement for Services and Resources, Quotes (if any), and any other documents agreed between the parties.
Consumer has the meaning provided to it in section 2 of the New Zealand Consumer Guarantees Act 1993.
Consumer Guarantee means a guarantee provided under Part 2 of the New Zealand Consumer Guarantees Act 1993.
Good or Services means goods or services which, for the purposes of New Zealand Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.
Key Terms means the key terms specified on the front page of this Agreement.
Materials means all materials produced by the Supplier for the Client in performing the Services, including those materials produced jointly with the Client, its employees or contractors.
Online Writing Tools means the educational cloud-based writing software Writer’s Toolbox offered to users on a Licence basis with individual logins for users. Licence periods are based on the academic year of the relevant territory.
Order means an order by the Client for Resources under clause 4.1.
Price means the price payable by the Client to the Supplier for the Services and/or Resources, plus GST.
Quote means a written quote to provide specified Services to the Client at the Price set out in the quote.
Resources means those classroom resources the parties agree the Supplier will provide to the Client. Resources available for purchase are found on the Supplier's websites www.writethatessay.org and www.wtbox.com.
Services means those services the parties agree the Supplier will provide to the Client, including those Services described in the Key Terms or the Quote (as applicable). Services may include online writing tools, diagnostic testing, consultancy services, and undertaking workshops and seminars for professional development.
Term means a term of one, or three Academic Years or such other period of time as specified in the Key Terms or the Quote (as applicable).

2. Services

2.1

The Client may request Services from the Supplier from time to time.

2.2

If the Client requests Services additional to the Services described in the Key Terms, the Supplier will provide the Client with a Quote for the requested Services or notify the applicable rate charged for those Services, as appropriate. An agreement to provide those Services will be formed when the Client advises the Supplier in writing that it accepts the Quote or the applicable rate charged for the Services.

3. Licence for Online Writing Tools

3.1

If the Services comprise 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 its 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 5.

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, it will be bound to maintain at least that number of Licences for subsequent Academic Years during the Term.

3.5

If the Client has elected a Term of one, two, or three Academic Years and prior to the end of the Term the Client terminates its Licence to access the Supplier's online writing tools or the Client's Licence is terminated in accordance with this Agreement, the Client will pay an early termination fee equal to the total accumulated discount to the Price given by the Supplier for those Services, calculated from the date the Supplier commenced providing those Services to the termination date. The Client will not, other than as required by law, be entitled to a refund of all or part of the Price for those Services due to early termination. This clause applies to online Licences. For termination rates for all other contact fees pertaining to this contract, see clause 16.

4. Orders and Delivery of Resources

4.1

The Client may make an Order by submitting a written purchase order to the Supplier containing the following information:

a.	the quantity and description of the relevant Resources;
b.	the address for delivery of the Resources;
c.	an order number.

4.2

The Supplier will advise the Client in writing whether it accepts the Order, at its sole discretion.

4.3

If the Supplier accepts the Order, it will deliver the Resources to the address specified in the Order within any timeframe agreed between the parties, which must 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.

4.4

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

5. Price and Payment

5.1

The Price for the Services will be the price specified in the Key Terms or the Quote (as applicable) or calculated based on the applicable rate for the Services notified to the Client. The Price for the Resources will be the price specified on the Supplier's websites www.writethatessay.org and www.wtbox.com when the Client submits an Order.

5.2

The Supplier will invoice the Client for:

a.	the Price for the online writing tools and contracted services immediately prior to the commencement of each Academic Year. Where a 3-year programme commences part way during a year, the full cost of that year will be invoiced, and subsequent years invoiced prior to the commencement of each year.
b.	the Price for the Resources plus a delivery charge equal to the costs incurred by the Supplier in delivering the Resources to the Client.
c.	The Price of any travel or accommodation incurred (if required) to deliver services to locations outside the Supplier’s metropolitan area; invoiced on a monthly basis during the term.

5.3

Invoices must be paid by the Client in full, without deduction or setoff, ten days following the date of the invoice or such payment date specified on the invoice.

5.4

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. Client's Responsibilities

6.1

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.

7. Intellectual Property

7.1

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.

7.2

If the Services comprise diagnostic testing (online or paper-based), 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' responses. 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.

7.3

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 party of the Materials or Resources. The Client must not sell or distribute the Resources and Materials to any other person.

7.4

If the Client, its employees or contractors copy or reproduce or distribute 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. Where the Resources were materials including video material from the online writing tool, the price of the resource is the annual standard single-user licence price to home users, and each person receiving these resources illegally shall be taken as one copy. 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.

7.5

The Client will sign all documents and do all things reasonably required by the Supplier to give effect to this clause 7.

8. Privacy

8.1

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.

8.2

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

8.3

Without limiting clauses 8.1 and 8.2, 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.

9. GST

9.1

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/ Sales Tax. 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, anamount equal to the amount of GST on the supply. 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.

10. Liability

10.1

If the Client is a Consumer, the Supplier acknowledges that the Client may have certain rights under New Zealand Consumer Law in respect of the Consumer Guarantees as they apply to the Resources 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.

10.2

If the Client is a Consumer and any goods or services supplied by the Supplier to the Client are non PDH Goods or Services, the Supplier's liability to the Client in connection with any breach of the Consumer Guarantees in respect of those non PDH Goods or Services is limited (at the Supplier's discretion) to:

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

in the case of Services:

i.	the supplying the Services again; or
ii.	the payment of the cost of having the Services supplied again.

10.3

If the Client makes a claim against the Supplier which includes a cause of action other than for a breach of a Consumer Guarantee 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.

10.4

Subject to clause 10.1, 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.

10.5

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 such failure or omission arises from any cause reasonably beyond the control of that party.

11. Dispute Resolution

11.1

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

11.2

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

12. Termination

12.1

The procedure for termination due to default is the following:

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).

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.

If the Defaulting Party fails to rectify or make a substantial start to rectify the default within 10 Business Days of receipt of such notice, then the Innocent Party may immediately terminate this Agreement by giving the Innocent Party written notice of termination. Such notice must state that it is a notice given under this subclause

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.

12.2

Grounds for immediate termination:

a.	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.

12.3

Claim for payment following termination:

a.	In the event of termination of this Agreement, the Supplier must give to Client, within 5 Business Days of termination, a claim for payment for Services performed by the Supplier up to the date of termination.
b.	The Client will make payment, if any, to the Supplier within 20 Business Days of the Client receiving the Supplier’s claim for payment.
c.	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.

12.4

Termination for convenience/without cause:

a.	The Client may terminate this terminate this document at any time by giving not less than six(6) months’ written notice to the Supplier, and subject to the payment of the early termination fee set out below.
b.	Where the Client seeks to terminate this document within the Term, the Client will be required to pay the Supplier 30% of all remaining contract fees due under this agreement.
c.	In the event of the Client exercising its rights under this clause, for clarity the parties shall continue to perform this document during the notice period.

13. Miscellaneous Provisions

13.1

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

13.2

Under this Agreement the Supplier is an independent contractor. This Agreement does not create any agency, partnership or employment relationship between the parties.

13.3

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.

14. Additions to size of programme

14.1

Should a Client wish to increase the size of the programme in their school, such as add additional staff, this may necessitate repricing the programme, and the Client will be provided with an additional quote for these additions.

14.2

Similarly, additional services can be added to this programme and these will be billed individually as they occur.

15. Cancellation and/or late notice changes to dates for Bookings for Professional Development Services

15.1

Should the Client wish to cancel or change the date for Professional Development bookings, a minimum of three weeks' notice must be given. Otherwise, the Client agrees to pay 20% of the professional development services fees for those day(s) as a lost earnings payment to the Supplier. Should a Client cancel or decline bookings during a contract year and not take subsequent days offered, these bookings are forfeited and are not carried over into a subsequent year.