TERMS AND CONDITIONS
1. PROVISION OF SERVICES
1.1 Springboard Trust will provide the Services to the Customer in accordance with the Agreement. These terms and conditions form part of the Agreement.
2. FEE
2.1 This clause 2 only applies if there is a Fee chargeable for the Services. Words or expressions used in this clause that are defined in the Goods and Services Tax Act 1985 have the same meaning given to them in that Act.
2.2 In consideration for Springboard Trust providing the Services to the Customer, the Customer will pay Springboard Trust the Fee in accordance with the invoice issued by Springboard Trust.
2.3 If GST is payable in respect of any taxable supply made by a supplier under the Agreement and the stated consideration for that supply is not expressed as including GST, the recipient will pay to the supplier an additional amount equal to the GST payable on that supply at the same time and in the same manner as any stated consideration for that supply is to be provided under the Agreement.
2.4 The supplier must provide a valid tax invoice to the recipient before the supplier will be entitled to payment of the additional amount payable under clause 2.3.
2.5 Springboard Trust reserves the right to delay commencing provision of the Services until it has received payment of the Fee in full.
3. SPRINGBOARD TRUST’S OBLIGATIONS
3.1 Prior to commencement of the Services, Springboard Trust agrees to:
(a) provide the Customer with all of the Contract Materials in the manner Springboard Trust considers is best suited for optimum provision of the Services; and
(b) appoint a Manager to attend to queries from the Customer that may arise throughout provision of the Services.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer agrees to:
(a) coordinate the provision of the Services with the relevant Participants;
(b) inform Springboard Trust as soon as reasonably practicable of a Participant’s withdrawal from the Services;
(c) procure from each Participant the consent of that Participant to the use by Springboard Trust of any photographs, film, audio recordings and prints, in all or any form, of the Participant taken and/or recorded during the Participant’s participation in the Services for training purposes and promotional or advertising purposes across all media channels; and
(d) otherwise obtain the consent of each Participant to enable Springboard Trust to deliver the Services as contemplated by these terms and conditions.
5. CONFIDENTIALITY
5.1 Each party will always keep confidential and secure, and not exploit or otherwise misuse, any information of another party which is identified as, or would reasonably be expected to be, proprietary, confidential or commercially sensitive (“Confidential Information”).
5.2 A party may only disclose or use that Confidential Information to the extent:
(a) necessary to perform the Agreement;
(b) authorised in writing by the party owning that Confidential Information;
(c) required by law; or
(d) it is, or becomes, public with the authority of the party owning that Confidential Information and without breach by the party of this Agreement or any other confidentiality obligation in law.
5.3 Each party will promptly return or destroy any and all Confidential Information (and any derivative from it) as requested in writing by the party owning that Confidential Information. Each party will require its representatives to comply with this provision and will be responsible for non-compliance by any of them.
6. PRIVACY
6.1 In the course of providing the Services, Springboard Trust may collect information about the Customer and the Participants, including Confidential Information (“Information”). Springboard Trust agrees to comply with privacy and data protection legislation applicable to it.
6.2 The Customer consents to the use of Information provided by it to Springboard Trust for the purposes of providing the Services, including for the improvement of internal operations the evaluation of the effectiveness of the Services.
6.3 The Customer agrees to the sharing of anonymised Information with any Third Party Suppliers, including for promoting and conducting research and creating publications relating to trends in education.
6.4 Springboard Trust agrees to procure that any Information provided to Third Party Suppliers pursuant to clause 6.3 will be anonymised (including by way of aggregation) prior to being disclosed publicly.
7. INTELLECTUAL PROPERTY
7.1 The parties acknowledge that Springboard Trust or Third Party Suppliers own all rights (including Intellectual Property Rights), title and interest to the Services, the Pre-Existing Materials and the Contract Materials, as well as all materials, documents or information conceived, developed or produced in the course of the Services.
7.2 The parties acknowledge that the Customer retains all rights, title and interest in and to the Customer Content, including any underlying Intellectual Property Rights in the Customer Content, developed by it prior to, or independently of, the Agreement.
7.3 The Customer must not:
(a) copy, adapt, translate, publish, communicate to the public, or create any derivative work or translation of the Services or part thereof;
(b) sub-licence, lease, rent, loan, assign, novate or otherwise transfer the Services or part thereof to any third party;
(c) disclose the Services or part thereof to any third party;
(d) reverse engineer, reverse compile, de-compile or disassemble the object code of any part of the Services, or otherwise attempt to derive the source code of any component of the Services, except to the extent permitted by law;
(e) contribute or use any Customer Content that:
(i) infringes any person’s intellectual property rights, right to privacy, right to keep confidential information confidential, right to publicity or induces any person to breach a contract;
(ii) is unlawful (including breaching laws relating to the wrongful distribution of email or other electronic messages “spam”), discriminatory, derogatory, defamatory, slanderous, malicious or obscene;
(iii) contains any virus, Trojan horse or other malicious code, or is used to gain unauthorised access to, does harm to, wrongfully intercepts, expropriates, accesses or uses for any wrongful purpose, any person’s hardware, software, network or data; and
(iv) contains links to any website that contains information that is of a type described in this subclause (e).
7.4 Subject to any limitations imposed by Third Party Suppliers, Springboard Trust grants the Customer a non-exclusive, non-transferable, irrevocable licence to use:
(a) the Contract Materials for the purposes contemplated by these terms and conditions; and
(b) the Pre-Existing Materials to the extent that such materials form part of, or are integral to, the Contract Materials and their use as contemplated by subclause (a).
7.5 For the avoidance of doubt, the Customer may not copy, reproduce or distribute the Contract Materials or the Pre-Existing Materials without Springboard Trust’s prior written consent.
7.6 Neither Springboard Trust, nor any Third Party Supplier or Volunteer, has any liability in respect of any loss, damage, claims, liabilities, costs and expenses (including legal fees) arising from, or in connection with any use by the Customer of the Services, the Contract Materials or the Pre-Existing Materials:
(a) in any manner inconsistent with the Agreement; or
(b) in combination with other materials which are not provided by Springboard Trust.
The benefits of this clause 7.6 are intended to extend to Third Party Suppliers and Volunteers and are to be enforceable by each of them under subpart 1 of Part 2 of the Contract and Commercial Law Act 2017.
7.7 The Customer agrees that Springboard Trust may use the name and/or logo of the Customer for marketing and promotional purposes (eg included on its website) communicating that the Customer has utilised the Services.
8. LIMITATIONS OF LIABILITY
8.1 To the extent permitted by law, all conditions, warranties, guarantees and implied terms of Springboard Trust or its Volunteers, whether statutory or otherwise, are expressly excluded.
8.2 To the extent that there is a failure to comply with a warranty or guarantee in respect of the supply of the Services, then to the extent permitted by law, Springboard Trust’s liability is limited to one or more of the following, at the election of Springboard Trust:
(a) supplying the services again; or
(b) the payment of the cost of having the services supplied again.
8.3 To the extent permitted by law, Springboard Trust excludes liability for:
(a) Third Party Products;
(b) loss of data, loss of revenue, loss of profits, loss of opportunities and any other indirect or consequential loss or damage; or
(c) any delays in the provision of the Services caused by the Customer.
8.4 The Customer indemnifies, defends and holds Springboard Trust harmless against all loss, damage, claims, liabilities, costs and expenses (including legal fees) arising from, or in connection with:
(a) any claim or demand brought by third parties in relation to the Customer Content or the Services; and
(b) any negligent, wrongful, unlawful or fraudulent act or omission or breach of this Agreement.
8.5 To the extent permitted by law, Springboard Trust’s total aggregate liability in connection with the Agreement, whether based on warranty, contract, statute, or tort (including negligence) will not exceed two times the Fee paid by the Customer to Springboard Trust during the Term.
9. TERMINATION
9.1 If:
(a) a party breaches, or fails to properly or promptly perform, any material obligation of that party under the Agreement and fails to remedy the breach or perform the obligation to the other party’s reasonable satisfaction within five Business Days after receiving written notice from the other party specifying the breach or failure and requiring remedy; or
(b) a party ceases to carry on all or substantially all of its business or operations; or
(c) an order is made or resolution passed for the winding up of a party or a receiver, liquidator or statutory manager is appointed of all or part of the assets of a party; or
(d) anything analogous to any events in subclause (c) occurs in respect of a party,
the other party may, by notice to that party, terminate the Agreement.
9.2 Termination of the Agreement will not affect any rights or remedies which either party would otherwise be entitled to, whether under the Agreement, at law or equity or otherwise including, without limitation, the right of either party to recover from the other party any amount which is or which may become due to it under the Agreement.
10. FEEDBACK
10.1 The Customer may provide Springboard Trust with feedback on the delivery of the Services.
10.2 The Customer grants Springboard Trust a worldwide, royalty-free, non-exclusive, perpetual and irrevocable licence to use, copy, modify and otherwise exploit any suggestions, recommendations or other feedback provided by the Customer relating to the Services.
10.3 Where Springboard Trust intends to use feedback provided by the Customer on the behalf of a Participant for publicity purposes, Springboard Trust will either anonymise the feedback or, where it determines that identifying the source of the feedback is necessary or desirable, will seek that Participant’s prior written consent to its use.
11. DISPUTES
11.1 A party must not commence legal proceedings – other than to seek urgent interlocutory relief – until this clause 11 has been complied with.
11.2 Any dispute in connection with the Agreement or the Services must be notified in writing to the other party by the party claiming the dispute, setting out the nature of the dispute.
11.3 If the dispute is not resolved within 14 days (or such longer period agreed in writing between the parties) after the date notice is given under clause 11.2, then the dispute must be referred to the managing director, Principal, or equivalent position of the Customer and Springboard Trust, who must meet to negotiate in good faith to seek to resolve the dispute.
11.4 If the dispute is not resolved within 21 days after the date notice is given under clause 11.2, then either party may commence legal action.
12. GENERAL
12.1 No party may assign its rights under the Agreement except with the prior written consent of the other party.
12.2 Nothing in the making or performance of the Agreement creates the relationship of partnership, joint venture or agent and principal between the parties. The relationship between the parties is the relationship of independent parties contracting for the supply of services.
12.3 An amendment or variation to the Agreement is not effective unless it is in writing and signed by the parties.
12.4 If a provision in the Agreement is wholly or partly void, illegal or unenforceable, then that provision or part must, to that extent, be treated as deleted from the Agreement. This does not affect the validity or enforceability of the remainder of the provision or any other provision of the Agreement.
13. DEFINITIONS AND INTERPRETATION
13.1 Definitions: The following definitions apply unless the context otherwise requires:
“Agreement” means the agreement between Springboard Trust and the Customer detailing the Services to be provided (which, for the avoidance of doubt, shall include these terms and conditions).
“Business Day” means any day other than a Saturday, Sunday or a statutory public holiday in Auckland, New Zealand.
“Contract Materials” means all software, materials, reports, processes, methods, specifications, documents and other works created by or on behalf of Springboard Trust in connection with the provision of the Services, including all surveys, handouts, speakers’ notes, lectures, learning aids, data, presentations, audio visual productions and materials associated with Services.
“Customer” means the party specified as such in the Agreement.
“Customer Content” means all content and materials the Customer provides Springboard Trust for the purposes of Springboard Trust providing the Services to the Customer.
“Fee” means the fee payable by the Customer for the Services (if applicable).
“Intellectual Property Rights” includes the rights to, and any interests in, any patent, design, trade mark, copyright, know-how, trade secret, domain name, and any other proprietary right or form of intellectual property (whether protectable by registration or not).
“Manager” means an employee of, or contractor to Springboard Trust who has been assigned to the Customer to manage the Customer’s requirements during the Term.
“Participant” mean the teachers, leaders, staff, or other nominees nominated by the Customer who participate in the Services.
“Pre-Existing Materials” mean any materials existing at the date of the Agreement in relation to the Services, and includes all trademarks, designs, design specifications, software, hardware or other documentation and materials used in the Services.
“Services” means the services to be provided to the Customer, as specified in the Agreement.
“Springboard Trust” means the trustees for the time being of the Springboard Trust.
“Term” has the meaning given to it in the Agreement
“Third Party Product(s)” means the product(s) supplied by a Third Party Supplier.
“Third Party Supplier” means a supplier that supplies Third Party Products which are used in the provision of the Services by Springboard Trust.
“Volunteer” means an individual engaged to participate in a designated volunteer role by Springboard Trust pursuant to a Memorandum of Understanding entered into between that individual and Springboard Trust.
14. WITHDRAWAL/CANCELLATIONS AND REFUNDS
14.1 If a workshop or programme is cancelled by Springboard Trust, a full refund will be provided.
14.2 The following table outlines Springboard Trust’s refund policy by workshop/programme in the event of participant withdrawal or cancellation of enrolment.
