Terms and Conditions

GENERAL TERMS & CONDITIONS

1         INTERPRETATION

1.1      Definitions:  In the Agreement, the following terms have the stated meaning:

Agreement:  Section A (Agreement and Key Details, including the cover page and signature clauses) and Section B (terms and conditions).

Confidential Information:  the terms and conditions of the Agreement and any information that is not public knowledge and which is obtained from the other party in the course of, or in connection with, the Agreement.  Intellectual Property owned by the Supplier is the Supplier’s Confidential Information.

Charges:  the total Charges for providing the services and for the items included in the itinerary as set out in the Key Details.

Force Majeure:  an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care.

Intellectual Property Rights:  includes copyright and all rights conferred under statute, common law or equity relating to inventions (including patents),registered or unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.  Intellectual Property has a consistent meaning.

Itinerary Items: Individual travel items listed in the Itinerary which is attached as Appendix A.

Key Details:  the agreement specific details set out in Section A of the Agreement.

Services:  the services set out in the Key Details.

Third Party Service Provider: a provider of an itinerary item under the agreement (such as an airline, tour or hotel operator).

1.2       Interpretation:  In the Agreement:

a       clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;

b       words importing the singular include the plural and vice versa; and

c       a reference to:

i        a party to this Agreement includes that party’s permitted assigns; and

ii       including and similar words do not imply any limit.

2         OBLIGATIONS

2.1      General: In addition to the other obligations of the Agreement:

a       the Supplier must provide the Services:

i        in accordance with the Agreement, including any requirement set out in the Key Details, and all applicable laws;

ii       exercising reasonable care, skill and diligence; and

iii      using suitably skilled, experienced and qualified staff; and

b       the Client must promptly make decisions (including approvals) and provide the Supplier with all information reasonably required to provide the Services.

3         WARRANTIES

3.1      Itinerary Items:  The Supplier acts as a travel agent and arranges and packages travel services and sells travel related products on behalf of the Third Party Service Providers. The Supplier gives no warranty or representations regarding the Itinerary Items to be provided to the Client. The Itinerary Items will be subject to the terms and conditions applied by the providers of the products.

To the maximum extent permitted by law, the Supplier excludes all warranties in connection with the supply of the Itinerary Items.  

3.2      Breach of warranty – Third Party Service Provider:  If an Itinerary Item does not meet a requirement set out in the key details, the Client’s remedies shall be against the Third Party Service Provider only.

3.3      Any implied condition or warranties (including any warranty under the Contract and Commercial Law Act 2017) are excluded.

3.4      The Client warrants that it has authority of all travellers to confirm the bookings and for their personal information to be provided to the Supplier and to Third Party Service Providers for the purposes of facilitating the booking.

4         INTELLECTUAL PROPERTY

4.1      Retained Intellectual Property:  The following Intellectual Property (including any modification, enhancement or derivative work of that Intellectual Property) remains the property of the current owner, regardless of its use:

a       Intellectual Property that existed prior to the date of the Agreement; and

b       Intellectual Property that was developed independently of the Agreement.

4.2      Know how:  To the extent not owned by the Supplier, the Client grants the Supplier a royalty-free, transferable, irrevocable and perpetual licence to use for the Supplier’s own business purposes any know how, techniques, ideas, methodologies, and similar Intellectual Property used by the Supplier in the provision of the Services.

4.3      Ownership going forward:

a       Subject to clauses 4.1 and 4.2, all new Intellectual Property created or developed by the Supplier in providing the Services, is owned by the Supplier.

b       If new Intellectual Property described in clause 4.3a incorporates Client Intellectual Property or any third party material, the Client grants the Supplier an irrevocable, perpetual, non-transferable and fully paid licence to use that Intellectual Property or third party material within New Zealand for the Supplier’s internal business purposes.

5         CHARGES

5.1      Charges:  The Client must pay the Charges to the Supplier for providing the Services and for payment of the Itinerary Items.  

5.2      Invoicing:

a       The Supplier must provide the Client with valid GST tax invoices prior to the dates set out in the Key Details.

b       The Charges stated are inclusive of any applicable GST.

c       The Client must pay the Supplier’s invoice:

i        by the applicable due date listed on the invoice/payment plan

ii       electronically in cleared funds without any setoff or deduction.  

5.3      Overdue amounts:  The Supplier may charge interest on overdue amounts.  Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the ANZ daily bank bill rate plus 3% per annum.

5.4      Non-refundable: as a general rule, all charges are non-refundable under this agreement in the event that the Services cannot proceed for any reason (including individual cancellation by either personal or school decision).

The Supplier may provide refunds or facilitate the transfer of deposits to another student on a case-by-case basis at its full discretion. The Supplier will have no obligation to provide such a refund or to allow any transfer.

6         CONFIDENTIALITY

6.1      Security:  Each party agrees that, unless it has the prior written consent of the other party, it will:

a       keep confidential at all times the Confidential Information of the other party; and

b       ensure that any personnel or professional advisor to whom a party discloses other party’s Confidential Information are aware of, and comply with, the provisions of this clause 6.1.

6.2       Disclosure required:  The obligations of confidentiality in clause 6.1 do not apply to any disclosure:

a       for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;

b       required by law (including under the rules of any stock exchange);

c       of Confidential Information which:

i        is publicly available through no fault of the recipient of the Confidential Information or its personnel; or

ii       was rightfully received from a third party without restriction or without breach of the Agreement; or

d       by the Supplier if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 6.

6.3       Return of information:  Except to the extent that a party has ongoing rights to use Confidential Information, a party must, at the request of the other party following the expiry or termination of the Agreement, promptly return to the other party or destroy all Confidential Information of the other party in the recipient party’s possession or control.

7         LIABILITY

7.1      Maximum Liability: To the fullest extent permitted bylaw, the maximum aggregate liability of the Supplier under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed the amount of the Charges paid and/or payable by the Client under the Agreement for Services properly provided in accordance with the Agreement. The limitations on liability provided in this clause do not apply to any breach of this Agreement which is caused by any fraud, fraudulent concealment, or dishonesty on the part of the Supplier

7.2      Unrecoverable loss:  Except for the Client’s liability to pay the Charges, neither party is liable to the other for any loss of profit, data, savings, business, revenue, and/or goodwill, or other indirect, consequential or incidental loss or damage arising under or in connection with the Agreement.

7.3      Unlimited liability:  

a       Clauses7.1 and 7.2 do not apply to limit the Supplier’s liability for breach of clause6.

b       Clause7.2 does not apply to limit the Client’s liability for those matters stated in clause 6.

7.4      No liability for the other’s failure:  Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that such failure is directly attributable to the other party failing to comply with its obligations under the Agreement, or to the negligence or misconduct of the other party or its personnel.

7.5      Mitigation:  Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.

8         TERM AND TERMINATION

8.1      Duration:  Unless terminated under this clause 8, the Agreement starts and ends on the dates set out in the Key Details.  

8.2      Termination rights:  Either party may, by notice to the other party, immediately terminate the Agreement if the other party:

a       breaches any material provision of the Agreement and the breach is not:

i        remedied within 10 days of the receipt of the notice from the first party requiring it to remedy the breach; or

ii       capable of being remedied;

b       has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of external administration, or ceases to continue business for any reason; or

c       is unable to perform a material obligation under the Agreement for30 days or more due to Force Majeure.

8.3      Consequences of expiry or termination:

a       Expiry or termination of the Agreement does not affect each party’s rights and obligations accrued before the termination or expiry date.

b       The Client must pay for Services provided before the expiry or termination date.

8.4      Obligations continuing: Clauses which, by their nature are intended to survive expiry or termination, including clauses 6, 7 and 8, continue in force.

9         DISPUTES

9.1      Good faith negotiations:  Before taking any Court action, a party must use their best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.

9.2      Obligations continue:  Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.

9.3      Right to seek relief:  This clause 9 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

10       GENERAL PROVISIONS

10.1    Force Majeure:  Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:

a       immediately notifies the other party and provides full information about the Force Majeure;

b       uses best endeavours to overcome the Force Majeure; and

c       continues to perform its obligations as far as practicable.

10.2    Waiver:  To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.

10.3    Independent contractor:  The Supplier is an independent contractor of the Client.  No other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement with the Client. It is noted that the Supplier shall act as a Travel Agent on behalf of the Third Party Service Providers.

10.4    Notices:  A notice given by a party under the Agreement must be delivered via email to an email address notified by the other party for this purpose.  If the notice is given under clause 8, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive of the other party.  

10.5    Severability:  Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.

10.6    Variation:  Any variation to the Services and Itinerary must be in writing and agreed by both parties. Variations to the Agreement must be in writing and signed by both parties.

10.7    Entire Agreement: The Agreement sets out everything agreed by the parties relating to the Services and supersedes and cancels anything discussed, exchanged or agreed prior to the Agreement’s start.  The parties have not relied on any representation, warranty or agreement relating to the subject matter of this Agreement that is not expressly set out in this Agreement, and no such representation, warranty or agreement has any effect from the Agreement’s start.  Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A, and13 of the Fair Trading Act 1986.

10.8    Subcontracting and assignment: Neither party may assign, subcontract or transfer any right or obligation under the Agreement without the prior written approval of the other (not to be unreasonably withheld).

10.9    Law:  The Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand.  Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with the Agreement.

10.10  Counterparts:  The Agreement may be signed in counter parts, each of which constitutes an original and all of which constitute the same agreement.  A party may enter the Agreement by signing and sending (including by facsimile or email) a counterpart copy to the other party.

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