In consideration for payment of SmartHS Limited (SmartHS)’s fees (Fees), SmartHS agrees to provide products (Products) and services (Services) to the Customer (Customer) on the terms of any quote provided (Quote) and on the terms of these terms of trade (referred to both as Terms, and Agreement).
The Services offered by SmartHS include internet-based training material and assessments (Training). SmartHS is not NZQA accredited, and the Training is intended to assist Customers with in-house obligations only.
The Customer acknowledges that:
The Training cannot account for all scenarios that may arise, and that completion of the Training does not override the need for a Customer to continue to apply common sense and risk-management, or any other official training.
SmartHS is not obliged to verify that the Customer has completed the Training.
If the Customer does not adequately complete the Training to SmartHS’s satisfaction, the Customer will not have completed the Training and will not be issued a certificate of completion from SmartHS.
If the Customer completes the Training but is deemed “not yet competent” to SmartHS’s satisfaction, the Customer will not have completed the Training and will not be issued a certificate of completion from SmartHS. It is the Customer's responsibility to ensure appropriate study/preparation is undertaken to enable the candidate to successfully complete the Training. In the event of a candidate not achieving the required level of competency, resitting the assessment at the cost prescribed will be required to complete the course successfully. This clause does not relate to the Practical assessments, as competency training is out of the control of SmartHS and only supplied as supplementary material to the Training.
The Customer shall:
Ensure SmartHS is provided reasonable instructions, directions and access to allow SmartHS to supply the Products and provide the Services. SmartHS may be required to spend more time, and the Fees payable by the Customer may increase if the Customer does not comply with this obligation.
Ensure the Training is diligently completed in full and as directed by SmartHS once purchased.
Not complete the Training on behalf of any third party, as in doing so you are jeopardising their safety.
TIMING AND TITLE
SmartHS will endeavour to complete their Services in a timely manner, but will not be liable to the Customer for any loss or damage arising in any way from any delay in performance.
SmartHS is not liable at any time under or in relation to this Agreement for any defect in the Product resulting from any action or omission by the Customer or any third person, including any failure to take all due and reasonable care of the Product.
The Customer expressly agrees with SmartHS that for the purposes of the creation of this Agreement:
the Customer has not relied upon any representation or warranty by SmartHS that is not contained in (or connected to) the Quote, the Training or these Terms.
the Customer has made its own independent assessment of any information connected with or relevant to this Agreement or the Products or Services, and relied exclusively upon that assessment.
SmartHS cannot control the actions of the Customer, so to the maximum extent permitted at law SmartHS cannot be held liable for any accidents, damage or injuries that may arise following completion of any Training or use of any Products or Services by the Customer.
It is up to the Customer to ensure the correct person completes the Training. Failure to do so could jeopardise others safety and breach the Health and Safety at Work Act 2015.
The Customer shall not provide any warranty or make any representation to any person concerning the quality, performance or other characteristics of the Product or the basis of its supply, unless such warranty or representation has been expressly authorised by SmartHS in writing.
The Customer indemnifies SmartHS against any losses, costs (including solicitor and client costs), expenses, demands or liability, whether direct, indirect, consequential, or otherwise, and whether arising in contract, tort (including in each case negligence), or equity or otherwise, incurred as a result of any warranty or representation made to a third party by the Customer in contravention of clause 6.1.
PROTECTION OF INTELLECTUAL PROPERTY
For the purposes of this Agreement, Intellectual Property means the Designs, all rights, including copyright, patents, designs, trademarks, trade names, goodwill rights, trade secrets, confidential information and any other intellectual property or proprietary right in or relating to the Product.
Unless otherwise agreed in writing, all Intellectual Property supplied or created under this Agreement will be owned by SmartHS, and SmartHS grants to the Customer a perpetual, non-transferable and non-exclusive licence to use the Intellectual Property (Licence). The Licence does not allow the Customer to cause any other person or entity to reproduce or create a new product or provide new services based on the Intellectual Property, unless expressly agreed in writing by SmartHS.
The Customer must not, nor may it permit any other person to do any act that would or might invalidate or be inconsistent with SmartHS’s rights in the Intellectual Property.
The Customer must, at SmartHS’s expense, take all such steps as SmartHS may reasonably require, to assist SmartHS to maintain the validity and enforceability of SmartHS’s rights in the Intellectual Property.
FEES AND PAYMENT
The Customer must pay the Fees.
Due to the nature of the work undertaken by SmartHS, all Quotes and charges are subject to change, unless SmartHS expressly agrees in writing that a Quote will not change.
Any Quotes provided by SmartHS are based on the information provided by the Customer, and information otherwise available to SmartHS. Where any circumstances change, SmartHS will be entitled to revise the terms of any Quote, including any Fees payable within any Quote. Where SmartHS anticipates that a Quote will need to be revised, it will use reasonable endeavours to advise the Customer within a reasonable timeframe.
All sums payable by the Customer under this Agreement shall be made in full without set-off or counterclaim and, except to the extent required by law, free and clear of any deduction on account of tax or otherwise.
Unless otherwise agreed in writing with SmartHS, all Fees will be payable in full and upfront before any Products, Services or Training will be provided.
All Fees noted in this Agreement are in New Zealand dollars and are GST exclusive unless stated otherwise.
CONFIDENTIALITY, SECURITY AND PUBLICITY
The parties recognise and acknowledge the confidential nature of any information which is or has been disclosed by one party to the other, but does not include any information that is (such information to be Confidential Information):
on receipt, in the public domain or that subsequently enters the public domain without any breach of this Agreement;
on receipt, already known by the party receiving it;
at any time after the date of receipt, received in good faith from a third party; and
required by law to be disclosed.
Neither party may use or disclose any Confidential Information other than:
to its employees to the extent necessary;
with the express prior written consent of the other party; and
to its professional advisers.
Neither party may advertise or publicly announce any matter relating to the contents of this Agreement without the other party’s prior written consent, however, SmartHS consents to the Customer sharing via social media the Customer’s experiences in using SmartHS, and the Customer consents to SmartHS responding to any such post.
The Customer shall indemnify SmartHS against any losses, costs (including solicitor and client costs), expenses, demands or liability whether direct, indirect, consequential, or otherwise and whether arising in contract, tort (including in each case negligence), or equity or otherwise incurred because of any unauthorised disclosure or use of the Confidential Information by the Customer or any of its employees.
LIMITATION OF LIABILITY
SmartHS shall not have any liability or responsibility to the Customer for any loss which does not flow directly or naturally (i.e. in the ordinary course of things) from a breach of this Agreement including, in each case consequential loss of business or profits or other loss. SmartHS shall only be liable for losses (excluding loss of business or profits) which flow directly or naturally from a breach of this Agreement up to a maximum of the amount paid by the Customer to SmartHS for the amount paid for the Services.
SUSPENSION AND TERMINATION
SmartHS may suspend their obligation to supply the Product or any Services if a dispute is raised in accordance with clause 14.6, until that dispute has been resolved.
SmartHS may terminate this Agreement by providing written notice of not less than 1 months to the Customer.
Either party may terminate this Agreement immediately by notice in writing, upon:
the other party committing any breach of this Agreement that is incapable of remedy;
the other party failing to remedy any breach of this Agreement that is capable of remedy within 30 days of notice of that breach having been given by the non-defaulting party to the other party; and
the commencement of liquidation or the insolvency of the other party (except for the purposes of solvent amalgamation or reconstruction) or upon the appointment of a receiver, statutory manager or trustee of the other party’s property.
Either party may suspend its obligations to perform this Agreement if it is unable to perform as a direct result of a war, riot, strike, natural or man-made disaster or other circumstance of a similar nature (Force Majeure Event). Any such suspension of performance must be limited to the period during which the Force Majeure Event continues.
Where a party’s obligations have been suspended pursuant to clause 12.1 for a period of 30 days or more, the other party may immediately terminate this Agreement by giving notice in writing to the other party.
All purchases are final, and SmartHS shall not be obliged to provide any refunds if any Goods or Services are not used or if a Customer simply changes their mind.
If the Customer shall become entitled to a refund under any other provision of general law, such refund shall not exceed the total amount of any money actually received by SmartHS from the Customer.
This Agreement constitutes the complete and exclusive statement of the agreement between the parties, superseding all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.
No exercise or failure to exercise or delay in exercising any right or remedy by a party shall constitute a waiver by that party of that or any other right or remedy available to it.
The agreements, obligations and warranties contained in this Agreement shall not merge on completion of the transactions contemplated by it but shall remain in full force until satisfied.
If the Customer is not a consumer as defined in the Consumer Guarantees Act 1993 (CGA), then the terms of the CGA will not apply to the Products or Services, to the maximum extent permitted at law.
This Agreement shall be governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
These Terms may be altered by SmartHS at any time, and displayed on the SmartHS website. By continuing to engage SmartHS or by accessing the SmartHS website, the Customer agrees to any changes to the Terms.
Where any dispute arises between the parties concerning this Agreement or the circumstances, representations, or conduct giving rise to the Agreement, no party may commence any court or arbitration proceedings relating to the dispute unless that party has complied with the procedures set out in this clause 15.
The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The other party must within seven (7) days of receipt of the notice give written notice to the first party, naming its representative for the negotiations. Each representative nominated shall have authority to settle or resolve the dispute.
If the parties are unable to resolve the dispute by discussion and negotiation within 14 days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to mediation.
The mediation must be conducted in terms of the LEADR New Zealand Inc Standard Mediation Agreement. The mediation must be conducted by a mediator at a fee agreed by the parties. Failing agreement between the parties, the mediator shall be selected and his or her fee determined by the Chair for the time being of LEADR New Zealand Inc.
Where the Customer is a company, the person(s) entering into this agreement on behalf of the Customer personally warrant(s) that that person or those persons have the power to enter into, and have properly entered into this Agreement in accordance with the terms of the Companies Act 1993 and/or the Customer’s constitution; and the Customer will perform its obligations under this Agreement.