Terms and Conditions of Training
LAST UPDATED: 19 APRIL 2024
1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Booking Form” means the Booking Form completed by the Client incorporating these Terms and Conditions (or any variation thereof agreed upon by both Parties) which shall govern provision of the Contents and Services;
“Business Day” means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business;
“Client”means the party procuring the Contents and/or the Services from MFNZ and who is identified in the Booking Form;
“Commencement Date” means the date on which provision of the Contents and/or Services will commence, as defined in the Booking Form and any subsequent dates upon which it is agreed that MFNZ will supply the Contents and/or the Services to the Client.
“Contents” means all materials (including DVD’s and video) (written or otherwise howsoever), commentary, documentation and information (in whatever form) that is provided for, contained in or available in connection with the provision of the Services.
“Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Booking Form, the Contents and/or the Services, whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such. It also includes the Contents and the Services;
“Data Protection Legislation” means all legislation in force in New Zealand from time to time relating to data protection and privacy including, but not limited to, the Privacy Act 2020and any other directly applicable New Zealand regulation relating to data protection and privacy and any successor legislation relating to data protection and privacy;
“Fees” means any and all sums due from the Client to MFNZ with respect to the Contents and the provision of the Services or otherwise arising and due from the Client to MFNZ;
“Intellectual Property Rights” means (a) any and all rights in any patents, trademarks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trademarks and service marks, copyrights, database rights, know-how, rights in designs and inventions;
(b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a);
(c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and
(d) the right to sue for past infringements of any of the foregoing rights;
“Services” means the Menopause Friendly Aotearoa, NZ training and any other services to be provided by MFNZ to the Client as set out in the Booking Form and subject to these Terms and Conditions.
1.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 “these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
1.2.4 a Clause or paragraph is a reference to a Clause of these Terms and Conditions or to a Clause of the Booking Form, as appropriate; and
1.2.5 a “Party” or the “Parties” refer to the parties in the Booking Form.
1.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
1.6 References to persons shall include corporations.
2. Provision of the Services
The Services are booked once the Client has provided MFNZ with a completed booking form (supplied by MFNZ) containing all necessary invoicing details, to include but not limited to
2.1.1 Invoice contact
2.1.2 Purchase Order Number
2.1.3 Supplier Number (if relevant)
2.1.4 Address for communications and invoicing.
Upon booking you agree to MFNZ’s Cancellation Policy as follows: –
Over 48 hours’ notice: Nil Fee
Between 24- and 48-hours’ notice: 25% of the fee for the session
Less than 24 hours’ notice: 100% of the fee for the session.
MFNZ shall provide the Services with reasonable skill and care, commensurate with prevailing standards in the sector in New Zealand.
MFNZ shall act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the specification of Services set out in the Booking Form.
MFNZ will provide the Client with a presenter suitable for the provision of the Services. MFNZ will endeavour to provide any preferred presenter the Client may specify but this cannot be guaranteed and failure to provide a preferred presenter shall not amount to any breach of this The Booking Form by MFNZ.
MFNZ shall be responsible for ensuring that it complies with all statutes, regulations, byelaws, standards, codes of conduct and any other rules relevant to the provision of the Services.
3. Intellectual Property Rights
MFNZ shall retain the ownership of any and all Intellectual Property Rights in the Contents and to the Services
You acknowledge that all Intellectual Property Rights in the Contents and in the Services are owned by MFNZ. You acknowledge that all Intellectual Property Rights existing now or arising in the future shall automatically vest absolutely in MFNZ on creation. To the extent that such Intellectual Property Rights do not vest automatically, you hereby assign such past, present and future Intellectual Property Rights to MFNZ and to the extent that it is necessary, you shall execute an assignment in favour of MFNZ of any and all Intellectual Property Rights which may have accrued to you through your use of the Contents and the Services.
You shall not do anything that adversely affects MFNZ’s Intellectual Property Rights in the Contents and the Services. For the avoidance of doubt and without prejudice to the generality, you MUST NOT do the following:
3.3.1 Exploit, use in any way or disclose any part of the Contents or the Services for any purpose other than for the internal approval (including technological approval and any necessary testing), certification or authorisation of the Contents or Services. For the avoidance of doubt the recording of the Contents or Services for any purpose other than those authorised above is a breach of this condition;
3.3.2 Alter, adapt or amend the Contents or the Services except as permitted by law;
3.3.3 Reproduce, copy or deal in the Contents or the services (in whole or in part) in any way.
MFNZ shall assert all moral rights arising out of the Copyright Act 1994. Any rights not expressly granted herein, are reserved.
4. Client’s Obligations
The Client shall use all reasonable endeavours to provide all pertinent information to MFNZ that is necessary for MFNZ’s provision of the Services.
The Client may, from time to time, issue reasonable instructions to MFNZ in relation to MFNZ’s provision of the Services. Any such instructions should be compatible with the specification of the Services provided in the Booking Form.
In the event that MFNZ requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services or any part thereof at any time, the Client shall provide the same in a reasonable and timely manner.
Any delay in the provision of the Contents or the Services resulting from the Client’s failure or delay in complying with any of the provisions of Clause 4 of the Booking Form shall not be the responsibility or fault of MFNZ.
5. Fees, Payment and Other Charges
The Client shall pay the Fees to MFNZ in accordance with the provisions of the Booking Form.
MFNZ shall invoice the Client for the Fees 28 days before the Commencement Date. The final date for payment of the Fees is on or before the Commencement Date.
MFNZ is not bound to provide the Contents and/or the Services if payment is not made by the Commencement Date.
5.1 All payments required to be made pursuant to the Booking Form shall be made in in cleared funds without any set-off, withholding or deduction.
5.2 Where any payment pursuant to the Booking Form is required to be made on a day that is not a Business Day, it may be made on the next following Business Day.
Without prejudice to sub-Clause 10.4.1 of this The Booking Form, any sums which remain unpaid following the expiry of the period set out in sub-Clause 5.2 (above) of the Booking Form shall incur interest on a daily basis at 5% above the base rate of KiwiBank Bank from time to time until payment is made in full of any such outstanding sums.
Travel is included within the Fees unless it is expressly excluded. If not included, travel is charged at the current published IRD tier 1 mileage rate per kilometre or the best transport option available.
Overnight accommodation is not included in the Fees. The cost of accommodation will be charged in addition to the Fees. MFNZ will always try and get the best possible rate available.
6. Liability, Indemnity and Insurance
MFNZ’s total liability for any loss or damage caused as a result of its negligence or breach of the Booking Form shall be limited to the sum of $1,000,000 (one million dollars).
MFNZ shall not be liable for any loss or damage suffered by the Client that results from the Client’s failure to follow any instructions given by MFNZ.
Nothing in these Terms and Conditions nor in the Booking Form shall limit or exclude MFNZ’s liability for death or personal injury.
The Client shall indemnify MFNZ against any costs, liability, damages, loss, claims or proceedings arising from loss or damage to any equipment (including that belonging to any third parties appointed by MFNZ) caused by the Client or its agents or employees.
6.1 Neither Party shall be liable to the other or be deemed to be in breach of the Booking Form by reason of any delay in performing, or any failure to perform, any of that Party’s obligations if the delay or failure is due to any cause beyond that Party’s reasonable control.
The Services are specifically designed for use only in New Zealand and are not to be used in any other jurisdiction without MFNZ’s express written consent. Accordingly, MFNZ shall have no liability whatsoever and of whatever nature and howsoever caused for any losses of any kind arising out of the use or otherwise of the Services outside New Zealand.
7. Confidentiality
7.1 Each Party shall undertake that, except as provided by sub-Clause 8.2 or as authorised in writing by the other Party, it shall, at all times;
7.1.1 keep confidential all Confidential Information;
7.1.2 not disclose any Confidential Information to any other party;
7.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Booking Form;
7.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
7.1.5 ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-Clauses 8.1.1 to 8.1.4 of the Booking Form.
7.2 Either Party may:
disclose any Confidential Information to any governmental or other authority or regulatory body to such extent only as is required by law.
use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Booking Form, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information that is not public knowledge.
7.3 MFNZ may disclose the Client’s Confidential Information to any sub-contractor or supplier of MFNZ to the extent that it is necessary for the production of or provision of the Contents and/or the Services.
7.4 The provisions of Clause 7 of the Booking Form shall continue in force in accordance with these terms, notwithstanding the termination of the Booking Form for any reason.
8. Force Majeure
No Party to the Booking Form shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
9. Termination
MFNZ may immediately terminate the Booking Form by giving written notice to the Client if:
any sum owing to MFNZ by the Client under any of the provisions of the Booking Form is not paid by the due date for payment;
9.1.1 the Client commits any other breach of any of these Terms and Conditions and/or the Booking Form and, if the breach is capable of remedy, fails to remedy it within 3 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
9.1.2 where the Client is a company, a receiver is appointed, of any of the property or assets of the Client;
the Client makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Companies Act 1993);
9.1.3 the Client, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the Client under the Booking Form);
9.1.4 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the Client;
9.1.5 the Client Party ceases, or threatens to cease, to carry on business.
9.2 For the purposes of sub-Clause 10.4.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
9.3 The rights to terminate the Booking Form shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
10. Effects of Termination
Upon the termination of the Booking Form for any reason:
Any sum owing by the Client to MFNZ under any of the provisions of the Booking Form shall become immediately due and payable;
10.1 All Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Booking Form shall remain in full force and effect;
Termination shall not affect or prejudice any right to damages or other remedy which MFNZ may have in respect of the event giving rise to the termination or any other right to damages or other remedy which MFNZ may have in respect of any breach of the Booking Form which existed at or before the date of termination;
10.2 Subject as provided in Clause 11 of the Booking Form and except in respect of any accrued rights neither Party shall be under any further obligation to the other;
10.3 Each Party shall (except to the extent referred to in Clause 8 of the Booking Form) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information; and
The Intellectual Property Rights licence granted under sub-Clause 3.1 of the Booking Form shall terminate and the Client shall forthwith cease to use, either directly or indirectly, any such Intellectual Property Rights, and shall forthwith return to MFNZ any such material in its possession or control.
11. Data Protection
MFNZ will only use the Client’s personal information as set out in MFNZ Privacy Policy, which can be found on our website: https://menopausefriendly.nz/privacy/
If you do not have access to our website, please contact us and we will send you a hard copy.
12. No Waiver
No failure or delay by MFNZ in exercising any of its rights under the Booking Form shall be deemed to be a waiver of that right, and no waiver by MFNZ of a breach of any provision of the Booking Form shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
13. Further Assurance
Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Booking Form into full force and effect.
14. Assignment and Sub-Contracting
The Booking Form shall be personal to the Parties. Neither Party may assign, or otherwise delegate any of its rights thereunder, or sub-contract or otherwise delegate any of its obligations thereunder without the written consent of the other Party, such consent not to be unreasonably withheld.
15. Third Party Rights
No part of the Booking Form shall confer rights on any third parties.
16. Notices
16.1 All notices under the Booking Form shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
16.2 Notices shall be deemed to have been duly given:
16.2.1 when delivered, if delivered email; or
16.2.2 on the 2 nd business day following mailing, if mailed by national ordinary mail,
16.2.3 In each case notices shall be addressed to the most recent address, e-mail address notified to the other Party.
16.2.4 Entire Booking Form
16.3 The Booking Form and these Terms and Conditions contains the entire the Booking Form between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
16.4 The Client shall acknowledge that, in entering into the Booking Form, it does not rely on any representation, warranty or other provision except as expressly provided in the Booking Form, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
17. Severance
In the event that one or more of the provisions of the Booking Form and/or of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that those provision(s) shall be deemed severed from the remainder of the Booking Form and/or these Terms and Conditions. The remainder of the Booking Form and/or these Terms and Conditions shall be valid and enforceable.
18. Dispute Resolution
The Parties shall in the first instance attempt to resolve any dispute arising out of or relating to the Booking Form through negotiations between their appointed representatives who have the authority to settle such disputes.
19. Law and Jurisdiction
The Booking Form and these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of New Zealand.
Subject to the provisions of Clause 26 of the Booking Form, any dispute, controversy, proceedings or claim between the Parties relating to the Booking Form or these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of New Zealand.
