Terms of service.
Definitions
1.1. House of Montrose Limited who trade as the New Zealand Curriculum Design Institute (NZCDI)
1.2. ‘Personnel’ means the NZCDI - House of Montrose Limited person, company or other body who are a party to the Contract.
Having their address as Head Office, 1/28 Liverpool Street, CBD, Hamilton 3204, New Zealand.
1.3. ‘Contract’ means the document attached to these Terms and Conditions and including any schedules plus their appendices as required or determined and as finally agreed with the Purchaser and the Contractor and signed by both parties
1.4. ‘Confidential Information’ shall have the meaning set down in clause 12.1.
1.5. ‘Force Majeure Event’ means an event beyond the reasonable control of the parties and includes acts of government, death, fire, tempest, acts of war and related matters (but excludes industrial relations difficulties) which with the application of due diligence and foresight could not be reasonably prevented.
1.6. ‘Losses’ means all losses, liabilities, claims, actions, damages, proceedings, demands, costs, charges and expenses.
1.7. ‘Purchaser’ means the party contracting NZCDI - House of Montrose Limited having its authorised person and principal place of business as set on the contract and shall include any statutory successors of the Purchaser.
1.8. The authorising Purchasers signature on the attached Contracting Document authorises NZCDI - House of Montrose Limited Personnel to execute the terms of the Contract in accordance with this contract.
1.9. ‘Services’ means the services provided by NZCDI - House of Montrose Limited under this Contract.
1.10. ‘Goods’ means supply of material items provided by NZCDI - House of Montrose Limited under this Contract
2. Headings
2.1. The headings to these conditions shall not affect their interpretation.
3. Standard Terms & Conditions
3.1. These Terms and Conditions form part of the ‘Contract’. Any documentation issued by NZCDI - House of Montrose Limited in the execution of the Contract that may or may not require the signature of the Purchaser and contain within or as part of such documentation terms and conditions at variance with those contained in this Contract will not have the effect of altering the terms and conditions of the Contract and the said terms and conditions of the Contract shall prevail at all times.
4. Quality of the Services
4.1 NZCDI - House of Montrose Limited personnel shall perform the Services in accordance with this Contract.
4.2 The Purchasers shall perform their identified actions also in a timely, professional and effective manner so as not to delay or prolong the Contract past the Contract stipulated termination date without the written agreement of NZCDI - House of Montrose Limited. Failure by the Purchaser to perform agreed actions within 10 working days of written notification or request by NZCDI - House of Montrose Limited shall make the full amount of the Contract payments immediately due.
4.3 NZCDI - House of Montrose Limited personnel shall carry out the Services ‘Contracted’ to a competent professional standard and exercise the care that is ordinarily exercised by experienced and competent personnel carrying out services of a similar nature to the Products and Services contracted.
4.4 Notwithstanding that the Products and Services or any part thereof have been the subject of any instruction, review, approval, acknowledgement or inspection, NZCDI - House of Montrose Limited personnel shall not be relieved from any liability or obligation under Contract unless the contracted materials have been altered by the Purchaser.
4.5 If the Purchaser notifies NZCDI - House of Montrose Limited of any reasonable deficiency in the Products or Services, which in the reasonable opinion of the Purchaser is attributable to NZCDI and it is within the scope of the Contract; the personnel shall promptly remedy the deficiency in the Product or Services as required by the Purchaser. All costs of such remedy shall be borne by NZCDI - House of Montrose Limited if within the scope of the “Contract’. If the personnel fail to remedy the deficiency in accordance with the Purchaser’s notice, the Purchaser may terminate the incomplete portion of the Contract.
5. Rate of Progress/Completion
5.1. NZCDI - House of Montrose Limited personnel shall carry out and complete the Products or Services within the period specified in the Contract and, where applicable, in accordance with any programme which has been agreed by the Purchaser. The personnel shall, if required by the Purchaser, take such steps as may be necessary and as the Purchaser may approve to remedy or mitigate any delay, including revision of the programme. NZCDI - House of Montrose Limited personnel may make additional charges for any requests that require work over and above the originally contracted work. Additional charges maybe incurred as a result of:-
5.1.1 delays caused by the Purchaser, its agents, servants or its other contractors;
5.1.2 the Purchaser failing to respond to written requests for information or approval for parts of a Contract for a period of more than ten working days or
5.2 NZCDI may claim the full Contract fee or balance of a signed contract where the Purchaser delays completion of a contract through inaction, failure to perform their contracted part of the Contract or for any other reason for more than a 30 day period.
6. Corrupt gifts or payments
6.1. The Purchaser shall not offer or give, or agree to give, to any employee or representative of NZCDI - House of Montrose Limited as an inducement or reward for doing or refraining from doing or for having done or refrained from doing, any act in relation to the execution of this or any other Contract. The provisions of the Prevention of Corruption Acts apply to this Contract.
7. Vesting of Rights
7.1. All rights (including ownership, intellectual property rights and copyright) of any reports, plans, designs, drawings, specifications, samples, models, patents, tools, technical data whether in writing, other paper format or on digital or other media shall be stipulated in the Contract and transfer if agreed only upon full payment of the Contract. Ownership of any material produced and not paid for in full by the contracted date will remain the exclusive Intellectual Property of NZCDI - House of Montrose Limited.
7.2. Should contracted work not be paid for in full within one calendar months of the contracted due payment date it shall be become the permanently exclusive property of House of Montrose Limited – NZCDI - House of Montrose Limited regardless of the outstanding contract balance amount.
8. Infringement
8.1. Nothing done by NZCDI - House of Montrose Limited personnel in the supply of the services shall infringe any patent, trade mark, registered design, copyright or other right of any third party.
8.2. NZCDI - House of Montrose Limited personnel takes no responsibility for any material supplied by the Purchaser to the personnel for use on any contracted work that infringes any patent, trade mark, registered design, copyright or other right of any third party. Purchasers are responsible for their own legal liabilities in the named areas.
9. Indemnity and Insurance
9.1. NZCDI guarantees a maximum of $10,000.00 and could indemnified the Purchaser to that value only against reasonable losses in connection with any Contract which may arise out of the act, default, negligence of NZCDI - House of Montrose Limited personnel.
10. Assignation or sub-contracting
10.1. NZCDI - House of Montrose Limited personnel may assign or sub-contract this Contract or any part thereof to any personnel with whom they hold a contracting MOU. All sub-contracted parties will be the subject of and bound by all clauses within these Terms and Conditions E.g. Confidentiality.
10.2. NZCDI - House of Montrose Limited personnel may not assign or sub-contract contract work to any other person, firm or company without prior written consent of the Directors and no sub-contracting by the personnel shall in any way relieve the personnel of their responsibilities under the Contract.
11. Confidentiality-Privacy
11.1. In providing services to the Purchaser, the personnel may obtain information concerning the Purchaser, its candidates, employees, assessments, systems and other information which is confidential (‘Confidential Information’). The Purchaser expects the personnel to maintain the highest levels of discretion in dealing with Confidential-Private Information. The personnel also undertakes the following:
12.1.1 Not to divulge any Confidential-Private Information to any third party without the express written authority of the Purchaser.
12.1.2 To keep all Confidential-Private Information secure at all times and not to be placed in such a way as may give rise to inadvertent disclosure.
12.1.3 To use Confidential-Private Information solely for the purpose of providing services to the Purchaser and not for the personnel’s own benefit or for the benefit of or detriment to any third party.
12.1.4 Not to make or retain copies of any Confidential-Private Information other than as required for the provision of services as a personnel. To return or to destroy any or all Confidential-Private Information and copies or duplicates in any medium thereof upon instruction from the Purchaser upon termination of the Contract to ensure no breach of this clause.
12.1.5 Not to express opinions on behalf of the Purchaser, or purport to do so, without the prior written approval of the Purchaser. The Purchaser also undertakes the following:
12.1.6 Not to express opinions on behalf of NZCDI - House of Montrose Limited, or purport to do so, without the prior written approval of the Chief Executive Director.
12.1.7 Not to make any comments, publicly or which may become public, which are disparaging of NZCDI - House of Montrose Limited and its personnel or which could cause damage to the reputation of NZCDI - House of Montrose Limited.
12. Data Protection NZCDI - House of Montrose Limited personnel warrant that it has complied with and will continue to comply with any Data Protection laws in New Zealand.
13. Termination
13.1. The Purchaser may only terminate the contract after a) providing NZCDI - House of Montrose Limited with a reasonable opportunity to remedy any issue that arises and could be resolved by them b) working to resolve any challenges that arise between the parties in a formal meeting c) attending an independent mediation process d) then court appointed arbitration process to resolve any issues. Only after such processes are followed may the Purchaser have the right to terminate the Contract. The Purchaser will be liable for payment of all work conducted by NZCDI - House of Montrose Limited before a termination notice is served. A Termination notice maybe served:
13.1.1. where the Personnel commits a material breach of any of its obligations under this Contract and fails to remedy such breach (if same is capable of remedy) within 60 days of a written notice requiring it to do so.
13.1.2. where NZCDI - House of Montrose Limited passes a Resolution that the company be wound up or dissolved or the Court makes an administration order or winding up order or the personnel makes an arrangement with its creditors, or an administration, administrative receiver, receiver or manager is appointed by a creditor or by the Court or possession is taken of any of its property under the terms of a floating charge.
13.1.3. where NZCDI - House of Montrose Limited fails to remedy any reasonable deficiency as outlined in clause 4.4.
13.1.4. where NZCDI - House of Montrose Limited fails to timeously perform any of its obligations under this Contract.
13.1.5. Note a change in mind or direction by the Purchasers or change in Government policy or direction shall not be acceptable grounds for contract termination by the Purchaser.
14. Return of Purchaser Property
14.1. Subject to the provisions of clause 12.1.4, upon completion or termination of the Services, NZCDI - House of Montrose Limited shall return to the Purchaser property including where appropriate data.
15. Variations of conditions
15.1. These conditions are in addition to and not in substitution for the terms, conditions and warranties implied by common New Zealand law or statute and the specific Terms of the Contract agreed. These conditions may not be varied except in so far as expressly agreed by the Purchaser and NZCDI - House of Montrose Limited in writing and shall apply notwithstanding the purported incorporation of any additional or alternative conditions or terms.
Entire Agreement
15.2. This Contract and these Terms and Conditions contain the entire agreement between the parties and supersedes all previous written or oral agreements relating to the subject matter
16. Force Majeure
16.1. If either the Purchaser or the Personnel fail or delay in fulfilling any of their obligations under this Contract due to a Force Majeure Event then the party in default shall not be liable to the other for Losses incurred as a result of such breach
16.2. Both parties will endeavour to perform all obligations affected and not affected by the Force Majeure Event to the extent that they can be performed
16.3. The parties will both endeavour to perform all obligations affected and not affected by the Force Majeure Event to the extent that they can be performed
17. Mediation and Arbitration
18.1. Any dispute or any difference between the parties as to the true intent of the meaning of these presents or the true implementation thereof or as to any other matter in any way arising out of or in connection with the Contract shall be as set out in 14, only take place post efforts by parties to meet and resolves challenges and it may then be referred to an independent mediator and if this process is unsuccessful to the decision of an independent arbiter to be mutually agreed between the parties or failing agreement, to be appointed by the Small Claims Court of New Zealand. The award of such arbiter shall be final and binding upon both parties. The parties will share 50% each the cost of such services.
18. Proper Law and Jurisdiction
18.1. The formation, construction, performance, enforcement and validity of this Contract shall be governed by the laws of New Zealand and the parties hereby submit themselves to the exclusive jurisdiction of the New Zealand Courts.
19. Payment(s)
22.1 NZCDI - House of Montrose Limited reserve the right to charge a further 10% of the gross Invoice for payments that are 20 days late or more.
22.2 NZCDI - House of Montrose Limited reserve the right to charge for professional debt recovery costs should an Invoice remain unpaid for 40 days.
22.3 NZCDI - House of Montrose Limited reserves the right to charge the full amount contracted should a Purchaser wish to delay or cancel an existing and in progress contract
22.4 NZCDI - House of Montrose Limited reserve the right to waive the above additional charges and penalties at their discretion.