Chalkle has developed an online solution which it proposes to make available to You, to assist You to promote and organise classes, in accordance with the terms and conditions set out in these Terms.
1.1 By completing the Online Registration Process, You agree to be bound by these Terms.
2.1 Throughout the term, Chalkle shall provide the Services to You.
2.2 This arrangement is non-exclusive and nothing in these Terms shall prohibit:
3.1 Term: These Terms commence on the date you complete the Online Registration Process and shall continue until either party terminates these Terms by written notice to the other party.
4. ACCESS AND USE OF THE CHALKLE PLATFORM
4.1 Access: Chalkle will make the Chalkle Platform available to You in accordance with these Terms.
4.2 Functionality: Details of the functionality provided by the Chalkle Platform are set out in the Documentation (including the level of access to the Chalkle Platform available to You, Teachers and Chalklers).
4.3 Use: You agree that You will only access and use the Chalkle Platform (and will ensure that all Teachers only access and use the Chalkle Platform):
4.4 You acknowledgement: You acknowledge and agree that:
4.5 Restrictions: You must:
4.6 Marketing: In utilising the Services and/or the Chalkle Platform, You must not:
4.7 Classes: You are responsible for:
4.8 Cancellations: If You or a Teacher cancel any Class, You shall immediately notify Chalkle through the Chalkle Platform, and request that Chalkle reimburse each Chalkler their respective Chalkler Fee.
4.9 Chalkle may cancel any Class at any time if:
4.10 Communications: Without limiting clauses 4.6 to 4.9, You must ensure that:
5.1 Nature of relationships: You acknowledge and agree that:
6.1 Charges: You shall pay to Chalkle the Charges and any applicable Service Fees in accordance with this clause 6.
6.2 Set off and deduction: Chalkle may:
6.3 Invoicing: Chalkle may invoice You on a monthly basis in respect of the Charges and Service Fees (if any) incurred in the preceding month. Each such invoice shall be in the form of a tax invoice for GST purposes, and shall indicate which amounts (if any) have been deducted by Chalkle in accordance with clause 6.2, and which amounts (if any) are still to be paid by You.
6.4 GST: The Charges and any applicable Service Fees do not include any GST (unless otherwise specifically stated in these Terms). You shall pay Chalkle the amount of all GST chargeable on any taxable supply by Chalkle under these Terms in addition to and at the same time as the Charges to which the taxable supply relates.
6.5 Payment: You shall pay Chalkle the Charges and any applicable Service Fees invoiced in accordance with clause 6.3 no later than the 20th of day of the month following the date of the relevant invoice (to the extent that Chalkle has not already deducted the relevant amount(s) in accordance with clause 6.2).
7. INTELLECTUAL PROPERTY
7.1 Ownership: All Intellectual Property rights in the Chalkle Platform and the Documentation are, and will remain, the exclusive property of Chalkle (or its licensors), and nothing in these Terms confers on You or any other person any rights or interests in the Chalkle Platform (or any part thereof), or the Documentation, other than to use the Chalkle Platform and the Documentation in accordance with the terms of these Terms.
7.2 New property: Any new Intellectual Property which is created as a result of, or in connection with, the provision of the Services, or otherwise in connection with these Terms, including all lists and databases containing information about and/or details of any Chalklers, shall be owned exclusively by Chalkle.
7.3 Your IP: All Intellectual Property rights owned by You in the teaching material relating to the Classes, and any other Your Content are, and will remain, Your (or its licensors) exclusive property, and nothing in these Terms confers on Chalkle or any other person any rights or interests in that teaching material or Your Content (or any part thereof).
7.4 No modification or disassembly: You must not:
7.5 Chalkle modifications: Chalkle may modify, enhance and/or update the Chalkle Platform from time to time in any way that Chalkle sees fit (and may choose to make such modifications, enhancements and/or updates available to You).
7.6 Maintenance: While Chalkle will endeavour to ensure the Chalkle Platform is generally available to You, You acknowledge and agree that the Chalkle Platform will be unavailable from time to time to permit scheduled and unscheduled maintenance to be undertaken, to implement patches and upgrades, and for other reasons which may mean the Chalkle Platform is unavailable, interrupted, restricted and/or delayed. Chalkle will endeavour to give You advance notice of outages due to scheduled maintenance.
8.1 Chalkle warranty: Chalkle warrants and represents to You that, to the best of Chalkle's knowledge, Your use of the Chalkle Platform in accordance with these Terms will not infringe any third party intellectual property rights.
8.2 No other warranties: Other than as expressly set out in clause 8.1, all warranties, conditions and representations (express, implied, statutory or otherwise) in respect of the Chalkle Platform are excluded to the fullest extent permitted by law. In particular, Chalkle makes no representation or warranty of any kind (express, implied, statutory or otherwise) as to:
8.3 You warranties: You warrant and represent to Chalkle that no Your Content, and no other content on the Provider Page, will:
9.1 Exclusions: Notwithstanding any other provision of these Terms, in no circumstances shall Chalkle be liable to You, any Teacher, Chalkler or any other person for anything in connection with:
9.2 Consequential loss: Chalkle shall not be liable to You for any loss of profits, or any consequential, indirect or special loss or damages suffered by You, arising directly or indirectly from any breach of these Terms by Chalkle, or from any negligence or other act or omission of Chalkle.
9.3 Monetary limit: The maximum aggregate liability of Chalkle in respect of all claims whether in contract, tort (including negligence) or otherwise arising under or in connection with these Terms in any 12 month period shall not exceed the sum of all Charges paid to Chalkle by You in that 12 month period.
9.4 Consumer Guarantees Act: The parties agree that the Services are supplied for the purposes of a business and that the Consumer Guarantees Act 1993 does not apply.
10.1 Indemnity by You: You will indemnify and keep indemnified Chalkle (including each of its personnel, agents and other representatives) against all actions, proceedings, losses, liabilities, damages, claims, demands, costs and expenses (including all legal costs and expenses on a solicitor and own client basis) suffered or incurred by Chalkle (or its personnel, agents and other representatives) arising out of or in connection with:
11.1 Confidentiality Obligation: Subject to clause 11.2, each party shall keep confidential, and make no disclosure of:
11.2 Exceptions: Information may be disclosed by a party if:
12. SUSPENSION AND TERMINATION
12.1 Suspension: Chalkle may at any time suspend Your use of the Chalkle Platform if:
12.2 Termination for cause: Either party may terminate these Terms with immediate effect, on written notice to the other party, if:
12.3 Termination without cause: If You have elected to be on the Community Plan Services, either party may terminate these Terms with immediate effect by giving the other party written notice to that effect.
12.4 Effect of Termination: Expiry or termination of these Terms:
12.5 Termination obligations: On expiry or termination of these Terms, You shall immediately:
13. DISPUTE RESOLUTION
13.1 Dispute: If any matter on which the parties cannot agree arises between the parties out of or in connection with these Terms ("Dispute"), either party may, by written notice to the other party, summon a meeting of the parties to the Dispute. The party claiming a Dispute shall, in its written notice to the other party, designate as its representative to attend the meeting(s) a person with authority to settle the Dispute. The party who receives such written notice shall give notice to the other party in writing within five Business Days of receipt designating as its representative to attend the meeting(s) a person with similar authority.
13.2 Negotiation: The persons designated as authorised representatives shall meet promptly as many times as necessary to discuss the matter and to negotiate to resolve the Dispute.
13.3 Arbitration: Where no agreement is reached within 20 Business Days from the first meeting of the authorised representatives under clause 13.2, any party to the Dispute shall be entitled by notice in writing to the other party, to require the Dispute to be finally resolved by arbitration under the Arbitration Act 1996 by a sole arbitrator to be appointed by agreement between the parties, or failing agreement within five Business Days of receipt of that notice, by the President of the New Zealand Law Society or their nominee. The decision of the arbitrator shall be final and binding on the parties, and the costs of the arbitrator shall (subject to any award by the arbitrator) be borne equally by the parties to the dispute.
13.4 Interlocutory relief: Nothing in this clause 13 shall prevent any party from seeking urgent interlocutory relief.
14.1 Notice: Every notice or other communication ("Notice") for the purposes of these Terms shall:
14.2 Method of service: A Notice may be given by sending it by email to the email address of the relevant party, provided that the Notice is not deemed received unless (if receipt is disputed) the party giving Notice produces a printed copy of the email which evidences that the email was sent to the email address of the party given Notice.
14.3 Time of receipt: A Notice given in the manner specified in clause 14.2 is deemed (subject to clause 14.2) received:
For this purpose "local time" is the time in the place of receipt of the Notice.
14.4 Addresses: For the purposes of this clause the address details of each party are:
15. VARIATIONS15.1 Variation: Chalkle may, at its sole discretion, by giving You no less than two months written notice, introduce, amend, remove and/or replace:
15.2 Termination by You: If Chalkle notifies You pursuant to clause 15.1 of any change to these Terms, or any new or increased fee, and such change or fees are unacceptable to You, You may terminate these Terms in accordance with clause 12.2.
16.1 Entire agreement: These Terms constitute the entire agreement between the parties relating to the subject matter of these Terms and supersedes and cancels any previous agreement, understanding or arrangement whether written or oral.
16.2 Further assurance: Each party shall make all applications, execute all documents and do or procure all other acts and things necessary to implement and to carry out its obligations under, and the intention of, these Terms.
16.3 No partnership, joint venture: Nothing in these Terms shall create or evidence any partnership, joint venture, agency, trust or employer/employee relationship between the parties (other than as expressly provided for in these Terms), and a party may not make, or allow to be made, any representation that any such relationship exists between the parties. A party shall not have authority to act for, or to incur any obligation on behalf of the other party, except as expressly provided for in these Terms.
16.4 Severance: If any provision of these Terms is or becomes unenforceable, illegal or invalid for any reason it shall be deemed to be severed from these Terms without affecting the validity of the remainder of these Terms and shall not affect the enforceability, legality, validity or application of any other provision of these Terms.
16.5 Waiver: No failure or forbearance by a party to exercise, or delay in exercising, (in whole or in part) any right, power or remedy under, or in connection with, these Terms shall operate as a waiver of that right, power or remedy. A waiver of any breach of any provision of these Terms shall not be effective unless that waiver is in writing and is signed by the party against whom that waiver is claimed. A waiver of any breach shall not be, or be deemed to be, a waiver of any other or subsequent breach.
16.6 Governing law: These Terms is governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand in respect of any dispute or proceeding arising out of these Terms.
17.1 Definitions: In these Terms unless the context otherwise requires:
"Additional Services" means any additional services that the parties agree from time to time that Chalkle will provide, including the "Additional Services" set out in Schedule 1.
"Business Day" means any day other than a Saturday, Sunday and a national public holiday in New Zealand.
"Chalkle" means Chalkle Limited.
"Chalkle Platform" means the online marketing and event management solution developed by or on behalf of Chalkle (which can be accessed through the Chalkle Website), and includes:
"Chalkler" means each person that signs up to participate in a Class through the Chalkle Platform.
"Chalkler Fee" means the fee payable by a Chalkler per Class.
"Chalkle Website" means http://chalkle.com/ (and any related Chalkle webpages).
"Provider Page" means a white-labelled website with a unique URL hosted on the Chalkle Platform, made available by Chalkle to You.
"Charges" means, in respect of each Class paid for through the Chalkle Platform by a Chalkler, an amount equal to the Success Fee plus the Processing Fee.
"Class" means a class that is listed by You on or through the Chalkle Platform.
"Commencement Date" means the date specified as being the "Commencement Date" in Schedule 2.
"Community Plan Services" means the services described in Schedule 1 under the heading "Community Plan Services".
"Disabling Code" means any program code or programming instructions, or any thing or device, which may damage, interfere with, impair or otherwise adversely affect the operation of a programme or any data, including malicious code, trojan horses, worms, spyware, malware, computer viruses, logic bombs, backdoors, disabling code and other similar things.
"Documentation" means the:
"GST" means goods and services tax chargeable, or to which a person may be liable, under the Goods and Services Tax Act 1985, and any penalties, additional tax or interest payable in respect of goods and services tax.
"Insolvency Event" means, in respect of a party:
"Intellectual Property" means, in respect of any person, all intellectual and industrial property rights and interests (including common law rights and interests) owned or held by that person, or lawfully used by that person, including, without limitation:
"Marketing Platform" means the online marketing and booking platform which can be accessed through the Chalkle Website.
"Online Registration Process" means the online registration process relating to the Chalkle Platform (which involves You accepting these Terms).
"Online Resources" means the online resources and tools available through the Chalkle Website.
"Processing Fee" means, in respect of any payment made by a Chalkler through the Chalkle Platform, the payment processing fee advised by Chalkle to You from time to time (the applicable fees as at the Commencement Date being set out in Schedule 2).
"Service Fees" means the fees for any Additional Services, as advised by Chalkle to You from time to time.
"Services" means the Community Plan Services and any Additional Services.
"Success Fee" means the fee payable by You to Chalkle in respect of each booking made through the Chalkle Platform, as set out in Schedule 2.
"Teacher" means each person that teaches, or will teach, a Class.
"Teacher Guide" means the guide regarding the conduct of Teachers provided by Chalkle to You, or available through the Chalkle Platform, as may be updated by Chalkle from time to time.
"Teacher Payment" has the meaning set out in clause 4.7(g).
"Terms" means these terms and conditions.
"You" means the person who completed the Online Registration Process (and, for the purposes of the definition of "Your Content", includes any person who logs into or otherwise accesses Your account or profile on the Chalkle Platform).
"Your Content" means any information, materials and/or content on or associated with the Chalkle Platform which is created, uploaded, entered or otherwise supplied by You (and includes any material derived from any such information, materials and/or content).
17.2 References: In these Terms unless the context otherwise requires:
The following Additional Services may be available on request by a You:
The following Additional Services may be available on request by a You: Assist You with setup, training and launch packages relating to the Chalkle Platform. Assist You with design and promotional services relating to the Classes. The Service Fee applicable to any Additional Services will be advised by Chalkle from time to time.