Terms and Conditions of Sale and Use of Resources

1. Terms and Conditions The following Terms and Conditions govern the sale and use of the Resources supplied to any person or company that purchases the Resources (“you, your”) from The Skills Organisation Incorporated (“Skills”). These Terms and Conditions are effective from 1 January 2016. Resources may be supplied to you either online through Skills Bank or hardcopy or by other means agreed by Skills.

2. Acceptance of Terms and Conditions The earlier of receipt of, or payment in full for, the Resources by you shall be deemed to be evidence of acceptance of these Terms and Conditions.

3. Title and Risk

3.1. The Resources purchased by you are subject to their reasonable inspection and approval by you.

3.2. Title to and risk in the Resources will pass to you after you have accepted the goods in accordance with clause 2 above.

4. Payment Terms

4.1. Payments for Resources other than by way of credit card, must be made by the 20th of the month following the date of invoice raised by Skills.

4.2. You will be liable to pay in full the costs associated with debt collection, including (but not limited to) debt collection agency fees and tribunal or court costs, in the event that the invoice is unpaid and is made the subject of a formal debt collection process by Skills.

5. Consent to Receipt of Electronic Messages

5.1. You agree that as a condition of this purchase, you grant permission to Skills to contact you, or your employees, by means of the use of electronic messages for the purpose of providing information, including but not limited to quotations, for updates to the Resources and/or new Resources or services.

5.2. You, or your employees, may unsubscribe from the electronic messaging services at any time by emailing Skills at orders@skills.org.nz and clearly stating each of the email address(es) that they wish to be unsubscribed from the electronic message services. Address(es) so specified will be removed within five working days.

6. Changes to Resources If the New Zealand Qualifications Authority publishes a new version of a unit standard or qualification then Skills will, if necessary, upgrade or create new Resources, either hard-copy or online, covering the new or updated version of the unit standard or qualification. You understand that Skills is not obliged to advise you of any changes to unit standards or qualifications. Prices of the new or updated version will be available on www.skills.org.nz or on request at 0508 754 557.

7. Log-In Access

Your obligations

7.1 If online access to the Resources is to be given Skills will give an access password(s) or user name(s) to you within 5 Business days of payment being received from you by Skills.

7.2 If you are given access to Skills Bank you will:

i. Access Secure: Keep any access password or user name supplied by Skills secure at all times. If your password is lost or stolen, you must immediately notify Skills by telephone and confirm such notice in writing; and

ii. Act in Good Faith: Not act in a manner which would adversely affect the reputation of Skills or the integrity of the Resources; and

iii. Comply with Laws: Comply with all laws, regulations and other requirements of any governmental or regulatory authority in New Zealand applicable to the Resources; and

iv. Monitor: For any online Resources, regularly monitor Resources located on Skills Bank to ensure the latest version of the Resources is being used by its trainees; and

v. Feedback: Provide Skills with constructive feedback on Resources if any issues are identified with the resources.

7.3 If you are given access to Skills’ online access system you may not, without Skills’ express prior written permission or as permitted by applicable laws:

b. copy all or part of the Resources onto a memory storage facility of any computer; or

c. sell, license or distribute the Resources to third parties or use the Resources in whole or in part as a component of or as a basis for any material offered for sale, licence or distribution; or

d. modify, alter, disassemble, de-compile, translate or convert into human readable form or reverse engineer all or any part of the Resources; or

e. remove, alter, circumvent or tamper with any trademarks, copyright notices, copyright protection devices, disclaimers or other legal notices; or

f. in any other way reproduce, download, print, scrape, store, publish, transmit, re-transmit, transfer, communicate, disseminate, broadcast, circulate, sell, resell or other otherwise use the Content or any portion of the Resources in any form or by any means; or

g. share log-in access details for any online Resources with anyone; or

h. assign your right to use the Intellectual Property, or allow a third party to use the Intellectual Property in any way; or

i. remove, efface or obscure any copyright notices or other proprietary notices or legends from any Resources provided under these terms and conditions.

7.4 Skills will have the right, at any time, to immediately suspend your online access at Skills’ sole discretion or in the event any of the following occurs:

j. the Resources and or any other Intellectual Property is used by you in breach of these terms and conditions; or

k. you operate in a way that it has the potential to damage, in any way, Skills’ business or reputation.

7.5 Access may be cancelled at any time by Skills upon written notice with immediate effect to the you if:

a. you bring Skills or Skill’s business into disrepute or discredit; or

b. you fails to pay any fee within one month following due date; or

c. you are declared bankrupt or insolvent, or a receiver or liquidator is appointed to manage their business; or

d. you do not comply with Skill’s requirements in Clause 7.2 and 7.3; or

e. there is a breach of these terms and conditions and either it cannot be remedied, or you fail to remedy that breach within one month of a written notice from Skills.

7.6 In the event of cancellation of these terms and conditions all online access to Resources will be removed and:

7.6.1 You will immediately, and at your expense, discontinue all use of the Resources and you will remove the Resources from your computers.

7.6.2 You shall, within ten business days of the cancellation of these terms and conditions, or immediately if these terms and conditions are terminated at the sole option of Skills, permanently delete any electronically and/or digitally stored copy of all such Resources from any media in or on which it are stored, and shall certify in writing to Skills that they have been so deleted.

7.6.3 You will within ten (10) Business Days of the cancellation of these terms and conditions ensure that you cease the use of any and all of the Resources.

7.6.4 Cancellation of these terms and conditions shall not operate to extinguish any rights Skills has (including the right to damages) which may have accrued prior to cancellation.

7.7 Cancellation of these terms and conditions does not affect the rights of either Party against the other Party in respect of anything done or omitted to be done under these terms and conditions before cancellation or regarding any sums or other claims outstanding at the time of cancellation. The provisions of Clauses 9, 10, and 12 will survive cancellation of this Licence.

8. Warranties

8.1. Skills warrants that all Resources supplied to you are new, of merchantable quality, free from defects, fit for their intended purpose, of good material and workmanship and conform in all respects with the requirements of these Terms and Conditions.

8.2. Skills does not make any warranty or assume any legal liability or responsibility for the accuracy, currency, or completeness of any information contained in the Resources supplied to you.

8.3. Skills will repair or replace any defective Resources supplied to you in terms of these Terms and Conditions at its own expense.

8.4. In the event that you are advised that the Resources purchased from Skills fail to comply with the requirements of relevant external standard setting or moderation monitoring authorities at the time of purchase, Skills will modify and replace the Resources supplied to you free of charge, provided that:

a. the Resources are for the current version of the assessment standard authorised by the external standard setting body or moderation monitoring authority; and

b. You supply Skills with a copy of the report from the external standard setting or moderation monitoring authorities that notifies the failure of the materials to meet the standard and specifies the areas that require remedial attention.

8.5. Skills shall have no liability whatsoever with regard to replacing the materials if either of the conditions in 7.4(a) and (b) is not met.

9. Indemnity You indemnify and release Skills against any claims, direct and indirect loss, damage, costs (including legal costs), expense or liability arising out of:

a. any breach of any warranty or obligation under these Terms and Conditions; and

b. any wilful or negligent act or omission of you or any of your officers, employees, contractors or sub-contractors, or agents in relation to the performance of its obligations under these Terms and Conditions; and

c. any breach of any third party’s rights, including in respect of any claim that the Resources infringe, or their importation infringes the patent, copyright, design right, trade mark or other intellectual property rights of any other person anywhere in the world, except, to the extent caused or contributed to by any negligent act or omission of Skills, its officers, employees and agents.

10. Intellectual Property

10.1. The content of the Resources supplied to you by Skills under these Terms and Conditions is the Intellectual Property of Skills. Skills is entitled to take whatever lawful action it may decide in order to protect its Intellectual Property rights in the Resources.

10.2. You must retain all Skills’ copyright statements and brand identification tags in the Resources at all times. This applies irrespective of whether the Resources were supplied as hardcopy, electronic or web based or similar.

11. Restrictions You must not, without prior written consent from Skills (which may be withheld or granted subject to conditions):

a. copy all or part of the Resources onto a memory storage facility of any computer other than your own computer; and

b. sell, license the Resources to third parties or distribute the Resources to third parties (other than to your Permitted Users) or use the Resources in whole or in part as a component of, or as a basis for, any material offered for sale or licence; and

c. modify, alter, disassemble, de-compile, translate or convert into human readable form or reverse engineer all or any part of the Resources; and

d. remove, alter, circumvent or tamper with any trademarks, copyright notices, copyright protection devices, disclaimers or other legal notices; and

e. remove, efface or obscure any of Skills’ copyright notices or other proprietary notices or legends from any materials provided under these Term and Conditions.

f. in any other way reproduce, download, print, scrape, store, publish, transmit, re-transmit, transfer, communicate, disseminate, broadcast, circulate, sell, resell or other otherwise use the Resources or any portion of the Resources in any form or by any means; and

g. share any Skills’ log-in access details for any online Skills Resources with anyone; and h. assign your right to use the Intellectual Property, or allow a third party (other than Permitted Users) to use the Intellectual Property in any way; and;

i. distribute Resources supplied under these Terms and Conditions to a third party who is sub – contracted or employed by you for the training/learning/assessment of the same unit standards contained in the Resources supplied unless this clause 11 or similar clause(s) approved by Skills are incorporated in your contract with the third party.

12. Limitation of Liability

12.1. Notwithstanding any other provision of these Terms and Conditions, the maximum liability of Skills under these Terms and Conditions including any for breach of these Terms and Conditions, is limited to the outstanding balance of payment due to Skills in respect of the Resources actually provided by Skills to you.

12.2. Notwithstanding any other provision of this agreement, Skills will not be liable under or in connection with these Terms and Conditions for any indirect or consequential loss or damage, or any loss of profits, loss of revenue or loss of contract, business, opportunity, reputation or goodwill.

13. Consequences of Breach Notwithstanding any and all rights and remedies Skills has in law, if you breach any of your obligations under these Terms and Conditions, you will not be entitled to any refund, reimbursement, or compensation for the Resources supplied to you by Skills.

14. Disputes Resolution

14.1. Where any question, dispute or difference arises between the parties concerning or in any way arising out of these Terms and Conditions, or the performance of either party in terms of these Terms and Conditions, the parties will make a genuine effort to resolve the question, dispute or difference by adhering to the procedures set out in this clause.

14.2. The party initiating the question, dispute or difference (the first party) shall provide written notice of the same to the other party (the other party) and nominate in that notice the first party’s representative for negotiations. The other party shall then within two working days, give written notice to the first party naming the other party’s representative for the negotiations. Each representative nominated will have authority to settle or resolve the question, dispute or difference.

14.3. If the dispute is not resolved within ten working days of receipt of the written notice of the first party, either party can give notice to the other that the dispute is being submitted for mediation. The outcome of the mediation shall be final and binding on the parties.

15. Refunds Refunds will not be available for Resources, unless otherwise agreed with Skills in writing. You must make sure your orders are complete and correct prior to finalising and confirming payment.

16. Delivery

16.1. Skills will deliver Resources within five (5) working days of the order being received. However, the delivery time assumes that the Resources are available and that the delivery times are not adversely affected by unforeseen events.

16.2. If an order is sent to the wrong address through the fault of Skills, Skills shall be responsible for redelivery or replacement of the Resource. If you have provided an incorrect address, Skills shall not be responsible for any redelivery or replacement of the Resource.

17. General

17.1. These Terms and Conditions will be construed in accordance with and governed by the laws of New Zealand. You submit to the exclusive jurisdiction of the courts of New Zealand.

17.2. You may not assign or sub-contract its obligations under these Terms and Conditions to any third party without the written consent of Skills.

17.3. These Terms and Conditions may only be varied in writing between you and Skills.

18. Definitions For the purpose of these Terms and Conditions:

Business Days” means Monday to Friday excluding New Zealand public holidays.

Intellectual Property” means all Resource content, names, titles, brands, strategies, trademarks (including logos), domain names, copyright, databases and lists, systems, confidential information, rights in computer software and all other intellectual property (whether registered or unregistered) which may subsist anywhere in the world, including the goodwill associated with the foregoing and all rights of action, powers, and benefits in respect of the same.

My Skills” means the Skills’ online hub for all personal, training and assessment information.

Permitted Users” means your staff, trainees, assessors and any other user group as agreed by Skills.

Resources” means one of more of the following: assessment guides, training guides, any other materials used for assessment, memory or data-stick supplied to you under these Terms and Conditions. Learning and Assessment materials supplied may relate to NZQA Unit Standards and/or NZQA Achievement Standards. Resources also mean the provision to you of on-line access to Skills’ learning and assessment materials and the provision of an electronic copy of the Resources.

Skills Bank” means the Skills’ Learning Management System (LMS) for delivery of learning support and assessment material.