Parties

  1. DIMENSION3 LIMITED (“Dimension3″)
  2. THE SCHOOL NAMED IN THE SUPPLY AGREEMENT (“School”)

Introduction

  1. Dimension3 is a provider of software products and services, including the software based learning management system known as Ultranet, to the education sector.
  2. The School wishes to obtain a licence to use Ultranet and to retain the services of Dimension3 to provide a hosting service for Ultranet upon the terms and conditions contained in this Agreement

It Is Agreed

  1. Interpretation

    1. In this Agreement:
      1. “Agreement” means this agreement including the schedules and any annexures to this agreement.
      2. “Authorised Users” means persons authorised by Dimension3 to access and use the Software in accordance with clause 3.2.
      3. “Business Day” means a day (other than a Saturday, Sunday or public holiday) on which trading banks are open for business in Auckland, New Zealand. A business day shall be deemed to commence at 8:30 AM and terminate at 5:30 PM.
      4. “Charges” means the charges payable by the School to Dimension3 in relation to the Software and the Services.
      5. “Confidential Information” means any information (whether written, electronic or otherwise):
        1. relating to the terms of this Agreement;
        2. relating directly or indirectly to the business or affairs of either party; or
        3. disclosed by either party to the other party on the express basis that such information is confidential; or
        4. which might reasonably be expected by either party to be confidential in nature, provided that where information relates exclusively to one party, nothing in this Agreement will require that party to maintain confidentiality in respect of that information.
      6. “Data” means any information, records, documents, files and other materials input or uploaded by the School to the Website.
      7. “Default Interest Rate” means the commercial overdraft rate charged by Dimension3’s bank plus a margin of 3.00%.
      8. “Force Majeure” means in relation to either party (the Affected Party) an event or circumstance which is beyond the reasonable control of that party, including (without limitation) any:
        1. act of God;
        2. strike, lock out or other industrial disturbance by or amongst employees of a person other than the Affected Party;
        3. act of public enemy, or declared or undeclared war or threat of war;
        4. terrorist act, blockage, revolution, riot, insurrection, civil commotion or public demonstration (other than one caused by the Affected Party);
        5. government or regional or local authority, restraint, legislation or by-law, but does not include any event or circumstance which could have been avoided by the exercise, by the Affected Party, of Good Industry Practice or lack of funds on the part of the Affected Party.
      9. “Good Industry Practice” means in relation to any activity, the exercise of a degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in New Zealand in the same type of activity, under the same or similar circumstances.
      10. “GST” means goods and services tax in terms of the Goods and Services Tax Act 1985 at the rate prevailing from time to time.
      11. “Licence” means the licence to access and use the Software and User Guide described in clause 3.
      12. “Modules” means discrete software packages which either extend the functionality of the core product or are made available as optional add-on packs.
      13. “Services” means the set-up and installation, training and hosting services and any other services to be provided by Dimension3 to the School in accordance with the terms of this Agreement as set out in the Supply Agreement.
      14. “Software” means the Ultranet software and all Upgrades and new Modules which are licensed to the School by Dimension3 in accordance with the terms of this Agreement.
      15. “Supply Agreement” means an agreement between Dimension3 and the Customer in respect of the software and services to be provided by Dimension3 to the Customer.
      16. “Term” means the initial term of this Agreement and any renewal term in respect of which the appropriate fees have been paid in accordance with this Agreement.
      17. “Upgrades” means updates, modified versions, additions and copies of the Software, if any, licensed to the School by Dimension3 from time to time, not including new Modules.
      18. “User Guide” means the digital materials made available by Dimension3 in the online support centre in order to assist with the use, operation or support of the Software.
      19. “Website” means the Ultranet internet site at www.ultranet.co.nz or such other site specified by Dimension3 from time to time.
    2. Where a party includes more than one person, the covenants, agreements and warranties on the part of that party shall be deemed to be joint and several.
    3. In this Agreement unless the context otherwise requires:
      1. Reference to any party includes that party’s executors, administrators, successors and/or permitted assigns (as the case may be);
      2. The singular includes the plural and vice versa and words importing one gender includes all genders;
      3. Any covenant not to do anything shall also constitute an obligation not to suffer, permit, cause or assist any other person to do that thing;
      4. Reference to any legislation or any provision of any legislation includes any amendment, modification, consolidation or re-enactment of the legislation or any legislative provisions substituted for, and all legislation and statutory instruments of, and regulations issued under, the legislation.
  2. Term of Agreement

    1. This Agreement is for an initial term of 12 months, subject to renewal in accordance with clause 2.2, unless terminated earlier in accordance with this Agreement.
    2. At the completion of the initial term this Agreement shall be automatically renewed on a rolling basis for the term of the licence subscription, provided that either party may terminate this Agreement by giving to the other party written notice at least one (1) month prior to any renewal date advising that it does not wish to renew this Agreement.
    3. Any renewal under clause 2.2 shall be on the same terms as this Agreement (unless otherwise agreed by the parties) including these provisions for renewal.
    4. In the event of any conflict between the terms and provisions of this Agreement and a Supply Agreement, the terms and provisions of the Supply Agreement shall prevail.
  3. Grant and Scope of Licence

    1. Dimension3 hereby grants to the School the non-exclusive right to access and use the Software via the Website during the Term for the purposes specified in the User Guide and on the terms and conditions of this Agreement.
    2. Access to and use of the Software shall be limited to the School’s current and future employees and students and their families and other users authorised by Dimension3.
    3. Dimension3 will provide software updates as and when the same are released (but without being under any obligation to provide regular updates) subject to the payment of the appropriate fees.
    4. Dimension3 will make available to the School, the User Guides and other support materials and any amendments to the same which may be made from time to time.
    5. Dimension3 will advise the School of any new Modules as and when the same are released (but without being under any obligation to provide new Modules). The School may access and use any new Module subject to the payment of the appropriate fees.
  4. Conditions of Access and Use

    1. The School must ensure that all user names and passwords required to access the Website and the Software are kept secure and confidential. The School must immediately notify Dimension3 of any unauthorised use of passwords or any other breach of security.
    2. The School must only use the Website and the Software for lawful purposes.
    3. The School must not attempt to undermine the security or integrity of the Software, the Website or Dimension3’s network infrastructure systems or, where the Software is hosted by a third party, that third party’s computing system or networks.
    4. The School must not use the Software in any way which may impair the function of the Software or the Website.
    5. The School must not attempt to gain unauthorised access to any materials other than those to which the School has been given express permission to access or to the computer system on which the Software is hosted and must not transmit, input or upload into the Software any files that may damage any other person’s computing devices or software content that may be offensive, or material or data in violation of any law (including data or other materials protected by copyright or trade secrets which the School does not have a right to use).
    6. The School must not copy, reproduce, modify or adapt the Software or the whole or any part of the User Guides except as otherwise provided in this Agreement or with the prior written approval of Dimension3.
    7. The School must not attempt to reverse engineer, de-compile, disassemble, translate or make any attempt at discovering the source code of the Software.
    8. The School must use any communication tools available through the Software and the Website for lawful and legitimate purposes and in particular, and without limiting the foregoing, the School must not use any communication tool for posting or disseminating any material unrelated to the use of the Software including (but not limited to) offers of goods or services for sale, files that may damage other computing devices or software, content that may be offensive to any other users or material in violation of any law (including material that is protected by copyright or trade secrets which the School does not have the right to use). The School represents that the content of any communication is owned by the School. Dimension3 is under no obligation to ensure that any communication is legitimate or related only to the use of the Software. As with any other web-based forum, the School must exercise caution when using any communication tools available on the Software or the Website. Dimension3 reserves the right to remove any communication at any time at its sole discretion.
  5. Intellectual Property

    1. The Website, the Software and the User Guides are the intellectual property of and owned by Dimension3 and are protected by copyright, including, without limitation by the Copyright Act 1994 and international treaty provisions.
    2. Ultranet and Dimension3 are trade marks of Dimension3 and are protected under New Zealand law.
    3. Any breach of copyright or unauthorised use of the trade marks or other intellectual property of Dimension3 is prohibited and may result in prosecution.
    4. All intellectual property rights in the Data remain the property of the School.
  6. Services to Be Performed

    1. Dimension3 is contracted to provide the Services to the School.
  7. Excluded Services

    1. The School acknowledges that the Services to be provided by Dimension3 do not include the following:
      1. Internet access for the School;
      2. Assistance with internet related problems that occur between the School and Dimension3 Internet Service Provider such as a lack of internet bandwidth into the School;
      3. Repair of damage caused by viruses, worms or similar attacks or faults within the Software for which there is no published protection reasonably available in New Zealand at the time that the loss or damage occurs;
      4. Assistance with problems that arise due to the type or configuration of software run on the servers or client computers within the school.
  8. Dimension3’s Obligations

    1. In performing its obligations under this Agreement, Dimension3 will exercise Good Industry Practice.
    2. Dimension3 will ensure that all persons engaged by it, whether as employees, sub-contractors or otherwise, are appropriately skilled and qualified for the performance of the tasks assigned.
    3. Dimension3 will provide appropriate infrastructure at the hosting location to deliver the Software in a reliable and secure manner at a level of performance that is generally accepted in schools. This infrastructure will include servers, routers, switches, air conditioning units, backup systems, uninterrupted power supplies and internet bandwidth.
    4. Dimension3 will manage the application of any upgrades or patches that may be required.
    5. Dimension3 will ensure the security and integrity of the Data by:
      1. Ensuring the Software and the Data are fully backed up on a daily basis for disaster recovery purposes and to enable point in time recovery of files.
      2. Ensuring that appropriate hardware redundancy is in place to ensure continuity of service.
    6. Dimension3 will pay any Internet bandwidth charges from the data center to the public Internet. Where a school chooses to access Ultranet through a private network such as KAREN or NEAL, there may be additional charges.
    7. Dimension3 aims to provide the hosting service without interruption on Business Days between the hours of 8:30 AM and 5:30 PM and with minimal interruption during the remaining 15 hours of the day and on public holidays and weekends.
      1. Preventative maintenance that could lead to a service outage will be completed outside of the hours of 8:30 AM and 5:30 PM on business days unless action is required in response to threat such as a virus.
    8. Dimension3 will notify the school’s Ultranet software administrator/co-ordinator by email at least 24 hours prior to any planned service outage.
    9. In the event of an unplanned service outage occurring, Dimension3 will assign engineering personnel to investigate the problem within 4 business hours of Dimension3 becoming aware of the outage.
    10. Dimension3 will provide a help desk to answer technical questions relating to the hosting service during business hours.
  9. School’s Obligations

    1. The School will appoint an Ultranet administrator/coordinator to liaise with Dimension3 and its personnel. The School may replace its Ultranet administrator/coordinator at any time. The School will ensure that its Ultranet administrator/coordinator is reasonably available to Dimension3 as required for consultation and guidance with regard to all information, facilities and services reasonably required by Dimension3 for the performance of its obligations under this Agreement.
    2. The School will be responsible for:
      1. Ensuring that only Authorised Users access and use the Software;
      2. The correct use of the Software by Authorised Users in accordance with the User Guide and any other requirements posted on the Website or otherwise notified by Edtech to the School from time to time; and
    3. The School will be responsible for any act or omission of any person who may access or use the Software via the School’s internet connection.
  10. Charges and Payment

    1. The School will pay to Dimension3 the charges as set out in the Supply Agreement for the right to access and use the Software and the performance of the Services.
    2. Unless otherwise stated, all charges and costs are exclusive of GST and GST shall be added to and payable in respect of all such charges and costs.
    3. The School will make any payments due to Dimension3 at the times set out in the Supply Agreement (and if no time for payment is provided, then within seven days from the date of invoice) without deduction and set off in cleared funds by direct credit to Dimension3’s bank account, by cheque, or in such other manner as Dimension3 shall stipulate from time to time.
    4. Where the School disputes any proportion of any amount appearing as payable on any invoice issued by Dimension3 under this Agreement:
      1. The School will notify Dimension3 of such dispute at the earliest opportunity;
      2. The School will pay the undisputed portion of that invoice by the due date for payment under this Agreement; and
      3. The School shall not be obliged to pay the disputed portion of that invoice until the dispute has been resolved by agreement between the parties or, in the absence of such agreement, in accordance with clause 15.
    5. If any amount is not paid on the due date of payment under this Agreement such late or non-payment will constitute a default under this Agreement and Dimension3 may request that interest be paid on the overdue amount at the Default Interest Rate calculated on a daily basis from the due date of payment until the date on which the overdue amount is paid in full.
    6. Dimension3 reserves the right to review its charges for the Software and the performance of the Services at intervals of not less than 12 months from the commencement date. Dimension3 must notify the School of any increase in the charges and any such increase shall take effect one (1) month following the date of notification.
    7. The School acknowledges that the licence fee relates to the current version of the Software and Upgrades but does not include new Modules. If the School wishes to access and use new Modules, Dimension3 and the School will agree the charges to apply in respect of each new Module.
  11. Warranties and Limitations of Liability

    1. Each party warrants to the other that:
      1. It has obtained all authorisations and has done all things necessary in order to enter into this Agreement and to perform its obligations under this Agreement;
      2. It is not aware of anything which will, or might reasonably be expected to, prevent or impair it from performing all of its obligations under this Agreement, in the manner and at the times contemplated by this Agreement; and
      3. All information disclosed to the other party for the purposes of this Agreement is, or will be when disclosed, complete and accurate in all material respects and that the use of that information by either party will not beach the intellectual property rights of any third party.
    2. The warranty set out in clause 11.1 shall be deemed to be repeated continuously during the Term.
    3. The School acknowledges that the provision of access to and use of the Software is on an “as is” basis and at the risk of the School.
    4. Dimension3 does not warrant that access to the Software will be uninterrupted or that the Software will be free of faults or programming defects. However, subject to the terms of this Agreement, Dimension3 warrants that the Software will operate substantially in accordance with the User Guide and that Dimension3 will use its best endeavours, using available resources, to correct, at its expense, any original faults or defects in the Software in the next release cycle. [This limited warranty does not apply in the event that the School has breached this Agreement or failed to comply with requirements set out in the User Guide.]
    5. For the avoidance of doubt, Dimension3 makes no representation and gives no other assurance, condition or warranty of any kind (including any assurance, condition or warranty implied by law to the extent that the assurance, condition or warranty can be excluded) in relation to the Software or the Services and accepts no liability for any such assurance, condition, warranty, representation, statement or term not expressly set out in this Agreement. Any warranties, assurances, representations or statements made by Dimension3 or any person or persons on its behalf whether before or after the execution of this Agreement, which are not recorded in this Agreement, are hereby expressly excluded.
    6. The School acknowledges that it is acquiring the Licence and these Services for business purposes and the provisions of the Consumer Guarantees Act 1993 are therefore excluded.
    7. Nothing expressed or implied in this Agreement will confer any liability on either party in respect of any indirect, consequential or special loss, damage, cost or expense of any kind suffered or incurred by the other party as a direct or indirect result of a breach by the first party of any of its obligations under this Agreement or loss, damage, cost or expense suffered or incurred by the other party, to the extent to which this results from any act or omission by that other party.
    8. Regardless of the basis of any claim, the maximum liability of either party to the other in contract or tort for any single breach of this agreement is FIFTEEN THOUSAND DOLLARS ($15,000) and for all breaches occurring in any twelve (12) month period is THIRTY THOUSAND DOLLARS ($30,000). No action arising out of this Agreement, regardless of the basis of such action, may be brought by either party more than twelve (12) months after the party bringing the action became aware, or reasonably ought to be aware, of the circumstance giving rise to the action.
  12. Force Majeure

    1. In the event that this Agreement cannot be performed or the obligations of either party fulfilled due to Force Majeure then performance of that obligation shall be suspended until the Force Majeure ceases to prevent performance of that obligation provided that:
      1. The party claiming Force Majeure shall notify the other in writing as soon as reasonably possible after the occurrence of the Force Majeure including:
        1. the date of commencement of the Force Majeure;
        2. the expected affect or duration of the Force Majeure; and
        3. where reasonably practicable, the proposal of the party claiming Force Majeure for mitigating the affect or duration of the Force Majeure; and
      2. The party claiming Force Majeure shall by the exercise of Good Industry Practice endeavour to overcome, and to mitigate the affects of the Force Majeure and to complete its obligations under this Agreement on time.
    2. Notwithstanding clause 12.1, if for any reason it appears that the subsistence of the Force Majeure shall operate to frustrate this Agreement, then either party may apply in writing to the other to terminate this Agreement. If the other party fails to agree to such termination within fifteen (15) Business Days of receipt of that notice, then the matter shall be referred for resolution in accordance with the procedure set out in clause 15.
    3. If this Agreement is terminated under this clause, then the rights of the parties on termination shall be as agreed between the parties or, failing such agreement, shall be referred for resolution in accordance with the provisions of clause 15.
    4. For the avoidance of doubt, nothing in this clause will require either party to settle a strike, lock out or other industrial disturbance by acceding against its judgement to demands made to it.
  13. Confidentiality

    1. Each party will maintain as confidential at all times, and will not at any time, directly or indirectly:
      1. Disclose or permit to be disclosed to any person; or
      2. Use for itself; or
      3. Use to the detriment of the other party,

      any Confidential Information, except:

      1. As required by law; or
      2. As is already or becomes public knowledge, otherwise than as a result of a breach by the party disclosing or using that Confidential Information of any provision of this Agreement; or
      3. As authorised in writing by the party to which that information relates; or
      4. To the extent reasonably required by this Agreement (and, without limiting the effect of this clause, a party may disclose Confidential Information only to such of its officers, employees or professional advisers, on a “need to know” basis, as is reasonably required for the implementation of this Agreement).
  14. Default and Termination

    1. Either party (the First Party) may terminate this Agreement immediately if the other party:
      1. Breaches any of the terms of this Agreement and fails to remedy such breach within fourteen (14) days of receiving written notice from the First Party to do so;
      2. Having committed a breach of any term of this Agreement, commits a further breach of that term;
      3. Commits a material breach of this Agreement which is not capable of being remedied;
      4. Divulges any Confidential Information, uses for itself or to the detriment of the First Party any Confidential Information or infringes the proprietary rights of the First Party;
      5. Becomes insolvent, or goes into liquidation whether voluntarily or compulsorily, enters into a scheme of arrangement with creditors or any class of creditor or has a receiver, manager, or receiver and manager, statutory manager or administrator appointed over any of its assets.
    2. The School may terminate this Agreement by not less than one (1) month’s notice in writing to Dimension3 in the event that the School does not accept any increase in Dimension3’s charges notified by Dimension3 to the School in accordance with clause 10.6.
    3. The expiration of this Agreement or its termination for any reason shall not affect those rights and obligations of the parties which are intended to survive such expiration or termination and shall be without prejudice to the rights and obligations of the parties accrued up to and including the date of such expiration or termination.
    4. Upon the expiration of this Agreement or its termination for whatever cause the School shall immediately pay to Dimension3 all amounts owing in respect of the Services provided by Dimension3 to the School and each party shall return to the other party all information, data, materials and records, whether written or otherwise, which is the property of the other party.
  15. Disputes

    1. If any dispute arises between the School and Dimension3 the parties shall endeavour to resolve the dispute by negotiation in good faith. In the event that the dispute cannot be resolved within fourteen (14) days from the date upon which notice of the dispute is first given by one party to the other party, the dispute will be determined by an arbitrator appointed by the President of the New Zealand Law Society or his nominee such arbitration to be conducted in accordance with the Arbitration Act 1996.
    2. The parties agree that there shall be no right to use any other tribunal or dispute procedure to resolve any differences between the parties and that arbitration shall be final and binding. The parties will each bear their own costs associated with the arbitration.
    3. If any compensation is payable by Dimension3 to the School as a result of arbitration, then the parties agree that this will be limited to pecuniary loss only.
  16. Notices

    1. Any notice required by this Agreement shall be in writing and may be given or sent by letter or facsimile transmission or email to the addresses set out in the Supply Agreement or such other addresses as are notified to the other party from time to time.
    2. Any notice given or sent by:
      1. Letter shall be deemed to have been given or sent the day after being deposited in the post;
      2. Facsimile (provided the sending facsimile machine produces a printout of the time, date and uninterrupted transmission of the message) shall be deemed served immediately upon completion of sending if such completion is within business hours in the place where the addressee’s facsimile machine is located but, if not, then at 9:00 AM on the following Business Day in such place; and
      3. Email shall be deemed served immediately upon the message entering the operating system of the addressee if such is within business hours at the address of the addressee but, if not, then at 9:00 AM on the following Business Day in such place.
    3. In any event a notice shall be sufficiently given or served if actually received by a party or a party’s solicitor or if sent to or left at a party’s registered office.
  17. Assignment

    The School may not assign its rights or obligations under this Agreement (in whole or in part) to any other person without the prior written consent of Dimension3, such consent not to be unreasonably or arbitrarily withheld or delayed.

  18. No Waiver

    Failure by either party on any occasion to enforce or require strict or timely compliance with any provision of this Agreement shall not affect or impair that provision in any way or the rights of that party to avail itself of the remedies it may have in respect of any breach of any such provision.

  19. Independent Contractor

    Dimension3enters into this Agreement as an independent contractor to the School and nothing in this Agreement creates a relationship between them of employer/employee, principal/agent, a joint venture or partnership.

  20. Entire Agreement

    This Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes and replaces any previous agreements and arrangements written and verbal between the parties.

  21. Further Assurances

    Each party will do all things and execute all documents reasonably required in order to give effect to the provisions and intent of this Agreement.

  22. Remedies Cumulative

    The rights, powers and remedies provided in this Agreement are cumulative and not exclusive of any rights, powers or remedies provided by law.

  23. Severance

    If any provision of this Agreement is invalid and not enforceable in accordance with its terms, other provisions which are self-sustaining and capable of separate enforcement with regard to the invalid provision, are and continue to be valid and enforceable in accordance with their terms.

  24. Counterpart Execution

    This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A party may enter into this Agreement by signing any counterpart and this Agreement shall comprise a binding agreement once each party has received a fax copy of the counterpart properly executed by the other party.

  25. Variation

    This Agreement may be varied only by agreement in writing signed by the parties.

  26. Governing Law

    This Agreement shall be governed by and construed in accordance with the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand Courts.