School General Terms
These School General Terms (Terms) were last updated on 16th September 2020. Previous versions of these Terms (previously called “General Terms”) are available on request from N4L. Any reference to “General Terms” in an N4L document is a reference to these School General Terms.
||If you are a School (you), these Terms apply to all the Services that we provide to you. Additional terms and conditions also apply (as detailed below), depending on the specific Services that you use.
||Capitalised terms used in these Terms have the meaning given to them in the Glossary.
2. Your Agreement
Overview of your Agreement
||Your Agreement with us comprises the following terms and conditions:
If there is any inconsistency between any of these terms and conditions, unless expressly stated otherwise, they will be interpreted in the descending order of priority listed above.
If we provide Services directly to you, different terms and conditions apply - please refer to our User Guide.
Changes to your Agreement
||We may update any aspect of your Agreement from time to time. We will publish the updated terms and conditions on our website and they will take effect immediately after they are posted as the current terms. If the update is likely to be material to you, we will notify you of the update directly in advance and/or post the updated terms on our website in advance. You are responsible for monitoring the terms and conditions published on our website to ensure that you remain up to date with your Agreement with us.
||If we update your Agreement, you will have the right to terminate your Agreement under clause 8.1 (Termination for Convenience). If a minimum term applies to a Service that is affected by the update, we will waive the minimum term (and any applicable early termination fee) if:
- the update may be material to you (e.g. an increase to the applicable Charges);
- you notify us that you wish to terminate, within 20 Business Days of the relevant notification from us.
Changes to our Services
||We aim to keep our Services relevant and innovative by modifying and improving them over time. We may upgrade, modify or change our Services at any time. Provided our Services remain as specified in your Agreement, we don’t need to give you notice of any change to our Services and such change will not constitute an amendment to your Agreement. However, if we reasonably consider any such change will have a significant detrimental impact on you, we will always try to provide you with advance written notice of the change and the date it will come into effect.
3. Our Services
||You can order our Services in any manner we permit from time to time. For example, some of our Services can be ordered online while others may require a signed Order Form or MOU. No order by you for our Services is effective, and we will not be required to provide the applicable Service to you, until we accept the order in writing or start providing the Service to you.
Our Commitments to You
- bring a good faith, open and constructive approach to our relationship with you;
- be proactive in identifying opportunities to implement new technologies that improve our Services;
- keep you informed about new Services that may benefit you, with your consent, in accordance with our Privacy Statement; and
- use reasonable endeavours to meet any service level targets expressly identified in our Managed Network Terms and use reasonable endeavours to ensure that, within the service level targets, our Services are secure, accessible, available and fully functioning.
||We will use reasonable endeavours to keep our Services free of errors and defects, harmful or inappropriate content, and Disabling Code. However, we cannot guarantee this due to the nature of our Services. Our Services should always be used in conjunction with your own digital citizenship and acceptable use policies and procedures.
||If any of our Services are not performing as expected, support is available 8:00am – 5:00pm on Business Days by calling or emailing our Helpdesk. We will take action as reasonably required to fix and prevent the recurrence of any reported fault or disruption which occurs in our Services.
- cooperate with us and bring a good faith, open and constructive approach to your relationship with us;
- ensure that all information provided to us by you is current, correct and complete;
- test our Services (including Equipment), when we provide Services to you, to ensure they interface correctly with your relevant business systems and equipment; and
- notify us if any of Your Users no longer require access to the Services provided to you or should have different access permissions (including where one of Your Users leaves your School).
||You must (and you must ensure that Your Users):
- use our Services in accordance with our Acceptable Use Policy and with consideration for all Users;
- use our Services in accordance with the applicable Managed Network Terms and properly consider all recommendations set out in our Managed Network Terms (including in relation to security);
- not do anything (by your acts or omissions) that results in us breaching any applicable Third Party terms and conditions or licenses;
- comply with all applicable Policies and our reasonable directions and restrictions regarding use of our Services;
- use our Services only for your (and Your Users’) own lawful purposes, for which they were provided;
- use our Services in accordance with applicable laws and never in a way that infringes anyone else’s rights;
- notify us immediately upon becoming aware of any actual or potential breach of security or unauthorised access or use of any part of our Services; and
- take all reasonable steps to make sure that no Disabling Code or other harmful or damaging things are ever introduced to, or distributed via, our Services, or any underlying networks or systems.
||You must never (and you must ensure that Your Users never):
- access (or attempt to access) our Services in a way that we have not expressly permitted or circumvent (or attempt to circumvent) any restrictions we place on our Services;
- use our Services in a way that damages or interferes with our Services, data or infrastructure (or those of anyone else) or the use of our Services by anyone else;
- resell, transfer, sub-license or otherwise make available to a Third Party all or any part of our Services without first obtaining our written approval;
- reproduce, modify, create derivative works from or commercially exploit all or any part of our Services without first obtaining our written approval;
- disassemble, decompile, reverse engineer or otherwise try to discover any source code from any of the software, files or systems in or underlying our Services; or
- access or use any of our Services for the purpose of building a product or service which competes with any of our Services or has similar features or functionality, unless we have requested you to do so or you have our prior consent in writing.
Your Responsibility for Your Users
||You are responsible for all:
- use of our Services by Your Users and all consequences of such use; and
- acts and omissions of Your Users in connection with our Services.
Health & Safety
||You acknowledge that your School is responsible for all health and safety matters in connection with the use of the land and buildings at your School. You agree to comply with the Health and Safety at Work Act 2015 by ensuring, so far as is reasonably practicable, that the School, and the means of entering and exiting the School, and anything arising from the School, are without risks to the health and safety of any person providing services on behalf of N4L (or, if applicable, on behalf of the Ministry of Education). You agree (so far as is reasonably practicable) to consult, cooperate with, and coordinate activities with any such service provider in relation to any health and safety matters arising out of the provision of services at the School.
||We may suspend or restrict your and/or Your Users’ access to and use of any Services if we consider it necessary or reasonable to do so. For example:
- to protect, maintain or repair any part of our Services;
- where we consider there is an emergency; or
- where we consider that you have breached your Agreement or you or any of Your Users have used our Services in a way that puts us, our Services or anyone else at risk.
||Without limiting our rights above, we will normally give you prior notice before we suspend your access to or use of any Services based on your breach of your Agreement, to give you an opportunity to resolve the situation. We may not provide this advance notice if we reasonably consider that we need to suspend or restrict a Service earlier to protect our rights or interests or those of anyone else. We will not suspend or restrict a Service for breach, and will lift any such suspension or restriction, if you have demonstrated to our reasonable satisfaction that the breach has been resolved and will not be repeated. However, these requirements on us do not apply if we are or become entitled to terminate or end a Service under your Agreement.
||Where practicable, we will try to schedule any major outages of our Services for maintenance or repair work at times that are outside peak use hours for the affected Service.
4. Pricing and Payment
||Our Services are often provided to you free of charge. This clause does not apply to Services that we provide free of charge.
||We will notify you in advance if any charges are payable by you for a specific Product and/or Service (for example, as part of the sign-up process for the Product).
||You are responsible for any prerequisites for use of our Services (such as fibre) and all associated costs. We use reasonable endeavors to ensure that any such prerequisites are set out in the relevant Managed Network Terms.
||You must pay all applicable Charges (plus GST, if any) for Services, no matter who uses them. Unless otherwise agreed in writing, all Charges are non-refundable.
Payment of invoices
||We will send you invoices for our Charges. You will pay the invoice by the 20th of the following month.
||If you do not pay by that due date you will, if asked by us, pay interest, at the rate of 2% above the overdraft interest rate charged by our primary bank, on the amount due from the due date for payment until full payment has been made and pay all expenses (including debt collection costs and legal costs on a solicitor-client basis) incurred in the recovery of the amounts owed to us.
||If you genuinely think there is an error with any of our invoices you must let us know why you think there is an error before the due date for payment (if you have not informed us before the due date for payment you will be deemed to have accepted the invoice and waive any right to dispute it). You don’t have to pay the part of the invoice you think is in error while we investigate the situation, but the undisputed part of the invoice will remain payable by the due date for payment. This is the only time that you may withhold any of the Charges and you must never set-off or deduct any part of any amount you owe us. If there is an error we will make the necessary adjustment to your next invoice. If we find that there is no error we will tell you and you must pay the full amount by the due date or, if that date has passed, within 2 Business Days.
5. Our Intellectual Property
Ownership of our Intellectual Property
||All rights, title and interest, including all rights to Intellectual Property, in and to our Services (including any underlying hardware, software, systems or files), and in any changes or improvements to them, are owned by us or our Third Party licensors (“Our IP”). Except to the extent that we specifically grant you a licence in your Agreement, we do not grant you any rights, title or interest in or to Our IP.
No use of our brand
||We do not grant you any rights to any of our trade marks, logos, business names, product names, domain names or other brand features, or those of our suppliers or any Third Party, even if made available in any of our Services.
6. Privacy and confidentiality
||Our practices relating to the collection, use and disclosure of personal information are set out in our Privacy Statement.
||Each party will:
- keep confidential all information obtained from the other party, in any form, that is confidential in nature or expressed to be confidential (“Confidential Information”) and not disclose it to any Third Party; and
- use the other party’s Confidential Information solely for the purposes of performing or exercising rights or obligations under your Agreement or for the purposes for which it was disclosed (“Permitted Purposes”).
||Our Confidential Information includes all technical information we provide or make available to you that we do not make publicly available for example, any network design protocols.
When These Obligations Do Not Apply
||A party is not required to comply with clause 6.3 (Confidential Information) to the extent that the relevant Confidential Information is:
- disclosed with the authorisation in writing of the other party;
- already in its unrestricted possession, without an obligation of confidentiality, at the time of receipt of the Confidential Information;
- independently developed by that party;
- in the public domain through no fault of that party;
- disclosed to it by a Third Party, who has the right to make such disclosure, without an obligation of confidentiality; or
- subject to clause 6.7 (Disclosure under the Official Information Act), required to be disclosed by law, by an obligation to Parliament or a Minister of the Crown, or for the proper and effective conduct of any legal process, investigation or proceedings.
Disclosure to Personnel
||Each party may disclose the other party’s Confidential Information to its Personnel that need to know that information for the Permitted Purposes, but must take all reasonable steps to ensure that its Personnel are informed of the confidential nature of the information and comply with obligations of confidentiality and use that are no less restrictive than your Agreement.
Disclosure Under the Official Information Act
||You acknowledge that we are subject to the Official Information Act 1982 and may disclose information under that Act. We will promptly advise you of any request received by us under that Act that relates to your Confidential Information and the extent of the requested disclosure of that Confidential Information, and will consult with you on our proposed response. If you are also subject to that Act, the same applies to you.
Return on Termination
||Upon termination of your Agreement each party will (as required by the other party) return or destroy any Confidential Information belonging to the other party, except for information:
- required by law to be retained;
- relating to any Product and Service that we continue to provide to you;
- reasonably retained for archival purposes;
- contained in data backups;
- retained with your agreement; or
- which the disclosing party otherwise agrees in writing can be retained.
||You may not claim that we endorse or approve any product or service that you sell or are associated with, without first obtaining our prior written approval.
||As an organisation, we will monitor the use of our Services. You agree that we may (but are not obliged to) monitor use of our Services by you and Your Users as:
- reasonably required to provide or improve any of our Services;
- reasonably required to check your compliance with the Agreement; and
- required by law.
Our Agreement With You
||Our agreement with you is limited to the terms that are expressly set out in this Agreement. Any other terms, warranties, representations and conditions are expressly excluded.
Limitation of Liability
||This clause sets out the maximum aggregate amount for which N4L and N4L’s Personnel (together) will be liable to you and to Third Parties for any individual event or series of related events (“Event”) and overall for each calendar year (“Year”). Please note that a separate limitation on liability applies to claims relating to tangible property (see below).
- Our overall liability to you in each Year – our overall aggregate to you for all Events that commence in a Year is limited to $5,000.
- Our liability per Event – in addition, our liability to all affected parties for any Event is limited to $50,000. For example, if an Event occurs and our aggregate liability to Third Parties is $47,000, our maximum liability to you in respect of that Event is $3,000.
Claims relating to property damage
||In relation to damage to tangible property, the maximum aggregate amount for which N4L and N4L’s Personnel (together) will be liable to you and to Third Parties will be limited to the total amount actually paid to N4L under our Public Liability insurance. Therefore, the liability of N4L and N4L’s Personnel (together) to you, in respect of any Event will be limited to the total amount actually paid to us, in relation to that Event, under our Public Liability insurance, less the total amount for which we are also liable to Third Parties in respect of that same Event.
||For the term of your Agreement we will maintain Public Liability insurance covering liability of up to at least $10,000,000 per Event.
Exclusions of Liability
||Neither party will be liable to the other for any:
- indirect or consequential loss;
- loss or damage to information or data; or
- loss of profits, anticipated savings, opportunities or damage to goodwill.
When the Limitations and Exclusions Apply
||To the extent permitted by law,the limitations and exclusions of liability set out in this clause 7 (Liability) apply to all Claims against N4L and/or N4L’s Personnel arising in any circumstances under or in connection with your Agreement and/or N4L’s Services, whether in contract, in tort (including negligence), for breach of statutory duty or otherwise and even if N4L and/or N4L’s Personnel knew or should have known about the possibility of the relevant Loss.
Causes beyond our control
||N4L and N4L’s Personnel have no liability under or in connection with your Agreement for any act or ommission that is caused by any event or circumstance beyond our reasonable control (an “Excusable Event”). We will promptly notify you if an Excusable Event arises or occurs, including, if applicable, how long we think it will last. We will take all reasonable steps to remedy or mitigate each Excusable Event and resume performance as soon as reasonably possible after it has ended.
||Without limiting clause 7.7, an Excusable Event includes any:
- outage of the Wholesale Access Service that connects you to the Managed Network to the School service;
- power outage, theft or vandalism of any device that connects you to the Managed Network to the School service;
- cyber security incident, including any event caused by Disabling Code used maliciously by a Third Party (for clarity, this applies whether or not you have opted out of the Safe and Secure Internet feature (refer to Managed Network Terms (clause 1.6)); and/or
- denial of access to your site.
Resupply of Services
||If you are not satisfied with any Services that we are able to resupply or re-perform, you must provide us with the opportunity to resupply or re-perform the relevant Services or otherwise resolve the issues that have arisen. To the extent permitted by law, notwithstanding any other provision of your Agreement, this is the sole remedy for any breach of the Agreement by us.
N4L Does Not Provide Network Design Recommendations or Advice
||Some Services may be specific to a network design for your School. For clarity, you acknowledge that, for those Services, N4L relies on information provided by your School and your review and approval of the network design for your School. Your School is solely responsible for final approval of all aspects of the network design and N4L’s Services do not include recommendations or advice to your School. You will have the opportunity to choose to engage a third party (at your expense) to review and advise on the network design on your behalf.
Termination for Convenience
||Unless a Service under your Agreement has a minimum term, as specified in the applicable Managed Network Terms or the applicable Order Form, either party may terminate any Service for convenience (subject to clause 8.3), at any time and for any reason, by telling the other in writing at least one month beforehand. If you have agreed that early termination Charges are payable, then you must pay any applicable early termination Charges to N4L in accordance with the terms of your Agreement.
Termination for Cause
||Either party may terminate your Agreement or any Service under your Agreement (subject to clause 8.3), by written notice to the other party, if the other party:
- commits a material breach of your Agreement that is not capable of being remedied;
- commits a material breach of your Agreement that is capable of being remedied, and has failed to remedy that breach within 10 Business Days of receiving notice from the terminating party requiring that breach to be remedied; or
- is placed in receivership, or wound up, or goes or is put into voluntary administration, liquidation or any other form of insolvency administration (other than for solvent amalgamation or reconstruction).
Termination of Dependent Services
||All of our Services are reliant on our Managed Network to the School service and you cannot order or use any of our Services without also using our Managed Network to the School service. Unless expressly approved by us in writing, you cannot terminate the Managed Network to the School service unless you also terminate your entire Agreement with N4L.
||We will notify you on request of termination if a Service that you are seeking to terminate is required by any other Product and/or Service. You cannot terminate a Service unless you also terminate any other Products and/or Services that are reliant on that Service.
Ending a Service
||We may end the provision of all or any part of a Service if:
- we are replacing the Service or withdrawing it from general availability;
- the Service is no longer commercially viable; or
- our ability or right to provide the Service has been stopped or restricted.
||Where we end any Service under your Agreement, we will notify you in accordance with clause 2.2 (Changes).
Effect of Termination
||Terminating your Agreement does not affect:
- clauses that are expressly or by implication intended to survive termination (including clauses 4 (Pricing and Payment), 5 (Our Intellectual Property), 6 (Privacy and Confidentiality), 7 (Liability), 8 (Termination), 10 (Resolving Disputes) and 11 (General));
- any rights or remedies that have accrued beforehand; or
- our rights to retain data as agreed by you and, if applicable, in accordance with our Privacy Statement.
9. Complaints and Feedback Process
This section sets out our process for complaints and feedback from Education Organisations.
If you are an End User of Services that we provide to a School (such as a student, teacher, guest, kaitiaki or guardian), please direct your complaint or feedback to your School - this allows us to ensure that appropriate identity verification is undertaken and we can work with your School to assist them to respond to you.
Who Can Make a Complaint
||Anyone who wishes to provide feedback or complain to us, may do so by following the Complaints Process set out in this clause 9. This includes you as well as Your Users.
||If we receive feedback or a complaint from one of Your Users, in some instances we may need to direct the feedback or complaint to you, so that we can work with you to respond.
||We want to make sure that your experience with us is everything you expect and more. If for any reason you are unhappy with anything we have done, please let us know so that we can resolve the situation to your satisfaction. If you have any suggestions on how we could do even better, we would love to know that too.
||You and Your Users have the right to:
- be treated with courtesy, respect and fairness at all times;
- have access to information about our services;
- your records and any feedback you provided (if applicable), in accordance with our Privacy Statement;
- provide feedback or raise a complaint if you are unhappy in any way; and
- seek independent advice or assistance if you are not satisfied with our resolution of your complaint.
||To raise a complaint or provide feedback:
- call us on 0800 LEARNING; or
- email us at [email protected].
- write to us at Complaints Officer, The Network for Learning Limited, PO Box 37 118, Parnell, Auckland 1151.
||If you are raising a complaint, please ensure that you provide your name and contact details, clearly explain the issue, and state that it is a complaint.
After you Raise a Complaint
||If you call us to raise a complaint, we will try to resolve your complaint there and then. If further investigation is required, we will advise you of an expected resolution time. We will also give you sufficient information to ensure you can enquire about the progress of your complaint.
||If you raise a complaint in accordance with section 9.5, we will endeavour to acknowledge it within 3 Business Days. We may need to contact you to further understand your complaint or obtain additional details. We will keep you informed of progress and the expected resolution time frame, or if the problem is of a very complex nature and will exceed the initial resolution timeframe.
10. Resolving Disputes
||If you have a concern with our Services, please consider if it can be addressed in accordance with our Complaints Process. If your concern is more serious, or is not resolved by our Complaints Process, the following may apply.
Step One: Dispute Notice
||If at any time you or we consider that a dispute or claim has arisen in connection with your Agreement or its formation (a “Dispute”), the disputing party may give written notice to the other party of the Dispute (“Dispute Notice”). This triggers the dispute process set out below. All Disputes will be resolved in accordance with this clause 10 (Resolving Disputes), although nothing in this clause prevents either party from seeking or obtaining urgent interlocutory relief.
Step two: Negotiation
||Following a Dispute Notice, you and/or your representative (e.g. if you are a school, your Principal or his/her delegate) and our representative, must promptly enter into negotiations with a view to promptly resolving the Dispute. If you are an Educational Organisation, either party may ask the Ministry of Education to facilitate these negotiations and, if that request is made, the other party must provide reasonable cooperation with the Ministry’s facilitation.
Step three: Mediation
||If the Dispute has not been resolved within 10 Business Days of the Dispute Notice (or such further time as you and we may agree) then either party may refer the Dispute to mediation by written notice to the other (“Mediation Notice”). Promptly following the Mediation Notice, the parties will attempt to agree the appointment of a mediator approved by the Resolution Institute and attempt to resolve the Dispute by mediation in Auckland, applying the then current Resolution Institute mediation agreement or rules (as the case may be), subject to any variation agreed by the parties. If the parties are unable to agree on a mediator within 5 Business Days of the Mediation Notice, a mediator may be appointed by the Resolution Institute. The mediation will be discontinued if either party gives an Arbitration Notice as set out below.
Step four: Arbitration
||If the Dispute has not been resolved within 30 Business Days of the Dispute Notice (or such further time as you and we may agree) then either party may refer the Dispute to arbitration by written notice to the other (“Arbitration Notice”). The arbitration will be determined by a sole arbitrator as soon as possible in Auckland. If the parties cannot agree on an arbitrator within 10 Business Days of the giving of the Arbitration Notice, the arbitrator will be appointed by the President for the time being, or his or her nominee, of the Arbitrators’ and Mediators’ Institute of New Zealand Inc. The arbitration will be conducted in accordance with the Arbitration Act 1996 (excluding clauses 4 and 5 of the Second Schedule to that Act). The award in the arbitration will be final and binding.
||Except to the extent expressly agreed otherwise in writing, your Agreement is non-exclusive and neither party is in any way restricted from entering into similar agreements with any other entity.
||You must sign all documents, and do all acts and things, that may be reasonably required to give effect to your Agreement.
||Unless expressly provided otherwise in your Agreement, each right and/or remedy of a party under your Agreement is cumulative and does not limit any other rights or remedies provided under your Agreement or at law.
Legal Nature of the Relationship
||No agency, partnership or joint venture relationship is intended or created by your Agreement.
||No failure, delay or indulgence by any party in exercising any power or right conferred on that party by your Agreement will operate as a waiver of that power or right. A single exercise of any of those powers or rights does not preclude further exercises of those powers or rights or the exercise of any other powers or rights under your Agreement.
||Your Agreement constitutes the entire agreement between you and us with respect to its subject matter and replaces all previous understandings and representations relating to that subject matter and any additional or different terms that you may provide to us.
||If any provision of your Agreement is found to be invalid or unenforceable, that provision will be changed to the minimum extent required to make it valid and enforceable, and the other provisions will remain in full force and effect.
The Benefit of Your Agreement
||Except as expressly provided in your Agreement, only you and us have any benefit under your Agreement and any right to enforce your Agreement.
||Any notice or other communication required under your Agreement (a “Notice”) will be deemed to have been duly served if it is in writing and sent by email, hand delivery or post in accordance with this clause. When we send you a Notice we will send it to the relevant address for notices provided by you. All Notices you send to us must be sent to one of the following addresses, to the attention of our Head of Finance:
Network for Learning Limited, The Textile Centre, Level 1, 117 – 125 St Georges Bay Rd, Parnell, Auckland 1052, New Zealand
Network for Learning Limited PO Box 37 118 Parnell Auckland 1151
Email: [email protected]
|Any Notice is deemed to be received in the case of:
- delivery by hand, at the time it is actually delivered to the recipient’s address;
- posting within New Zealand, 3 Business Days after posting; and
- international posting, 10 days after posting; and
- email, on successful transmission (unless the sender receives a delivery failure notification ).
||However, if a Notice is received or deemed to have been received after 5.00pm on a Business Day in the place to which it is sent, or on a day which is not a Business Day in that place, it will be deemed not to have been received until the next Business Day in that place.
||We may subcontract any of our obligations under your Agreement, in which case we will remain responsible to you for meeting those obligations.
||Your Agreement is personal to You. You may not transfer or assign any of your rights or obligations under your Agreement.
Law and jurisdiction
||Your Agreement is governed by the laws of New Zealand. Subject to clause 10 (Resolving Disputes), you submit to the exclusive jurisdiction of the Courts of New Zealand.
Parties to this Agreement
||Some provisions of your Agreement will refer to rights of another person or entity. For example, clause 7 of these Terms refers to N4L’s Personnel and some Order Forms may refer to the Ministry of Education. Unless stated otherwise, those provisions are intended to be for the benefit of and enforceable by N4L and the relevant third party, in accordance with Part 2, Subpart 1 (Contractual Privity) of the Contract and Commercial Law Act 2017. However, any amendments to your Agreement do not require approval from any third party.