a
Service Level Agreement (SLA)
Sitename
Job code: ****
Author: Learning Media Ltd
**** 2012
XXXX/ Learning Media Service Level Agreement. **** 2012
1
a
Service Level Agreement (SLA) .................................................................................... 3
1.
Terms of Service .................................................................................................. 4
Term of this Service Level Agreement (SLA) ................................................................. 4
The Services provided by this Agreement are: .............................................................. 4
2: Included in the SLA monthly pricing ....................................................................... 4
2A.
2B.
2C.
2D.
Website – hosting, storage, traffic ................................................................... 4
Website – availability...................................................................................... 5
Website – backups ......................................................................................... 5
Disaster Recovery (DR) .................................................................................... 5
3: Optional services not included in the monthly fee ................................................. 6
3A:
3B:
3C.
3D:
F.
G.
Website – annual domain name renewal ............................................................... 6
Website – site statistics analysis and recommendations ......................................... 6
Helpdesk support ................................................................................................ 6
Website – updates and enhancements.................................................................. 7
Other services - managed by **** ..................................................................... 7
Enhancements and other services – that can be offered by Learning Media ............ 8
4. Response matrix ...................................................................................................... 8
4A. Response matrix definitions ................................................................................... 9
5. Costs ......................................................................................................................... 9
6. Payment & Invoicing .............................................................................................. 10
7.
Acceptance ........................................................................................................ 10
8.
Terms and Conditions ....................................................................................... 11
The Client’s Obligations ............................................................................................ 11
Charges, Invoicing and Payment ............................................................................... 11
Termination ............................................................................................................. 12
Liability and Exclusion of Warranties ......................................................................... 13
Confidential Information ........................................................................................... 13
Intellectual Property and Licensing ........................................................................... 14
Force Majeure ......................................................................................................... 14
Dispute Resolution ................................................................................................... 15
Notices.................................................................................................................... 15
General ................................................................................................................... 15
Definitions ............................................................................................................... 16
XXXX/ Learning Media Service Level Agreement. **** 2012
2
a
Service Level Agreement (SLA)
Between
Learning Media Limited (supplier)
Street address:
Level 4
22 - 28 Willeston Street
Wellington
Postal address:
PO Box 19090, Wellington, 6049
Phone: 04 382 6500
Fax: 04 382 6509
And:
(client)
XXXXXXXX
Street address:
Postal address:
XXXX/ Learning Media Service Level Agreement. **** 2012
3
a
1. Terms of Service
This document outlines the services of Learning Media Ltd (hereafter referred to as Learning Media)
will provide to the client (****) and the related costs.
Term of this Service Level Agreement (SLA)
The term of this Service Level Agreement is one year, i.e. for the period
**** 2012 until **** 2013
The Parties to this Agreement can extend or renegotiate this Agreement for a further period at will.
The Services provided by this Agreement are:
The Services provided within the monthly fee for this SLA are:







the hosting of the website in a quality controlled environment
connection of the website to the Internet via Learning Media’s Internet Service Provider (ISP)
maintenance of the website’s server and related server software, including the addition of
server software security patches as required
client access to the administration interface of the web content management system (CMS)
provided by Learning Media
regular backups of the website
the payment of local and international internet traffic costs
24/7 monitoring of the website’s live web server.
2: Included in the SLA monthly pricing
The following services are provided within the monthly SLA fee.
2A.
Website – hosting, storage, traffic
Website name:
URL:
******* (the website)
*******
Hosting
Learning Media will host the **** website, unless otherwise agreed in writing. The live site will be
hosted within a controlled environment and connected to the Internet through Learning Media’s
Internet Service Provider (ISP).
Storage - server space/volume
The volume of server space allocated to the **** website is five gigabytes. This limit includes all
information stored on the website, including html, CSS, PHP, databases, images, media and files
uploaded through the content management system.
Increasing server space
The Parties agree to review this Agreement if the website is likely to, or does exceed five gigabytes.
Learning Media will inform **** before the five gigabytes of volume is exceeded. We have the
capacity to increase the addition of data at any stage and costs relating to this will be agreed
between the parties should the occasion arise.
XXXX/ Learning Media Service Level Agreement. **** 2012
4
a
Traffic
The monthly fee includes 10GB of traffic. Additional traffic will be charged at the rate of …
2B.
Website – availability
Monitoring and incident reporting
Learning Media will monitor the website 24/7 using automated monitoring software. If the server
encounters an error, Learning Media will take appropriate action to ensure the resumption of service
based on the response matrix described in section 4.
Should an error arise, Learning Media will issue the Commission with an incident report detailing the
error and the measures taken to remedy the error. I don’t currently do this, does anyone?
Uptime
Subject to the maintenance window, it is agreed that the website will be available for a minimum of
99.00% uptime. Derek to confirm does this include maintenance down time?
Maintenance window
Learning Media will have a ½ hour weekly maintenance window for server maintenance. This
maintenance window will be 6.30am to 7.00am on Wednesdays. Learning Media will notify the
Commission each time this window is used. If maintenance time is needed, it will be counted as
being outside the 99% uptime measure. Double check with Paul
2C.
Website – backups
Tape-based backups
Learning Media will back up the website on a daily basis from Sunday until Thursday inclusive, and
will send tapes off-site daily. Tapes are sent off-site daily to Palmerston North for storage (Online
Data Security). How long to get a tape delivered from Palmerston North
Tape cycle
Learning Media currently has a 20 tape retention cycle. Within this 20 tape cycle there will be a full
file system backup and up to 19 incremental backups this is determined by the backup application
(AMANDA) based on tape available and last full backup. There will be a minimum of one full backup.
Learning Media will back up the website on a daily basis from Sunday until Thursday inclusive, and
will send tapes off-site daily. Tapes are sent off-site daily to Palmerston North for storage (Online
Data Security).
Learning Media currently has a 20 tape retention cycle. Within this 20 tape cycle there will be a full
file system backup and up to 19 incremental backups this is determined by the backup application
(AMANDA) based on tape available and last full backup. There will be a minimum of one full backup.
2D.
Disaster Recovery (DR)
Learning Media will arrange a Disaster Recovery hosting solution outside Wellington but still within
New Zealand. This will include:

twice daily sync of data – please note that depending on the timing, live data and Disaster
Recovery data may differ between 0-12 hours of the incident
XXXX/ Learning Media Service Level Agreement. **** 2012
5
a


the DR server – this will be online within 2 hours of the incident if accessed from within New
Zealand
the DR server specifications – this will be 1 x CPU and 512MB RAM which is half the amount
of the live site. If DR is called upon, it is a possibility that the performance of the site may
be slightly lower.
Should an incident occur, the domain name address (DNS) of the Disaster Recovery site would need
to propagate through the Internet. Depending on internet activity, this process could range from 8-24
hours. The time taken for DNS propagation is a feature of the underlying architecture of the Internet,
and the timing of this is therefore out of Learning Media hands.
3: Optional services not included in the monthly fee
The following services are not included in the monthly fee. However Learning Media can provide
these services and we would be happy to discuss pricing options if of interest to the client. We have
included an indicative rate card in section 5 of this document to provide information about our
pricing.
3A: Website – annual domain name renewal
The following domain names have been registered by, and are owned by, ****:
If requested, Learning Media can liaise with ****'s domain name registrar (*****) on ****’s behalf.
As the owners, however, any requests regarding the administration (e.g. renewal etc.) would need to
be made by ****.
3B: Website – site statistics analysis and recommendations
Website usage is and will continue to be monitored using Google Analytics. **** has a Google
Analytics account in place and administers this. (site specific)
Learning Media included Google Analytics code in the website when it was developed. This enables
the site’s traffic and usage data to be viewed by ***** a Google Analytics account.
3C. Helpdesk support
Learning Media has a helpdesk to assist our clients. This is available Monday to Friday, excluding
public holidays, from 9.00am to 5.00pm. As part of this SLA, ***** can contact our Helpdesk for
assistance – for example

as required to assist the Commission in publishing content to the site, or technical queries

for training on the use of the content management system provided with the site

for the provision of a training manual.
Option: Learning Media has not included Helpdesk time in the monthly fee. We would be happy to
discuss the best option for the Commission – for example, providing these services on an as used
basis, with a minimum charge of 15 minutes per call, or agreeing a monthly level of service.
XXXX/ Learning Media Service Level Agreement. **** 2012
6
a
3D: Website – updates and enhancements
Learning Media delivered the Both Sides of the Fence website by an agreed GoLive date, and included
a 2 week warranty period following that date. The site has now moved into the maintenance mode
covered by this Service Level Agreement.
Option: The Commission may wish to add new features and enhancements to the site, or to ensure
key software and hardware remains up to date. Should this be required, Learning Media can provide
these services and would price this work in discussion with the Commission. Work in this category
could include, for example:

the development of new features and functions on the site
- for example, to accommodate new sections or content types

any changes or updates to the CMS and/or server software which are not covered by this SLA
- we will advise the Commission if a software upgrade recommended

changes or upgrades to the video player used on the site (JW Player)
- we will advise the Commission if a software upgrade is recommended

regular broken link checks
- we can provide the Commission with a report of any links which appear broken.
These can be discussed and prices and requirements agreed as and when required. If work is
confirmed, Learning Media will provide a Schedule which will be an attachment to this contract and
will describe the work’s deliverables, timeline and cost.
Point of contact for additional services or escalation
The Helpdesk team is the first point of contact for any additional services the Commission may wish
to consider. The team will then ensure the appropriate Learning Media representative attends to
the request promptly.
F.
Other services - managed by ****
Website – domain name renewal
The following domain names have been registered by, and are owned by, ****:
If requested, Learning Media can liaise with ****'s domain name registrar (*****) on ****’s behalf.
As the owners, however, any requests regarding the administration (e.g. renewal etc.) would need to
be made by ****.
Website – site statistics
Website usage is and will continue to be monitored using Google Analytics. **** has a Google
Analytics account in place and administers this. (site specific)
XXXX/ Learning Media Service Level Agreement. **** 2012
7
a
G. Enhancements and other services – that can be offered by Learning
Media
This Agreement does not cover enhancements to the website. Learning Media would be happy to
provide additional services, for example

the development of new features and functions on the site
- for example, to accommodate new sections or content types

changes or updates to the CMS and/or server software which are not covered by this SLA
- we will advise **** if a software upgrade is recommended

changes or upgrades to the video player used on the site (JW Player)
- we will advise **** if a software upgrade is recommended

regular broken link checks
- we can provide **** with a report of any links which appear broken
These will be discussed and prices and requirements agreed as and when required. If work is
confirmed, Learning Media will provide a Schedule which will be an attachment to this contract and
will describe the work’s deliverables, timeline and cost.
Learning Media point of contact: XXXXXX, (04) 382 6500
4. Response matrix
Learning Media will respond to issues relating to the performance of the website within the
timeframes set out in the following response matrix. Learning Media will commence its response
upon receiving notification of an issue from ****. Learning Media will work with **** to remedy the
identified issues within the relevant timeframes.
If an error has been made on Learning Media’s part we would restore that and pay the
cost. – add this clause in?
Response matrix
Impact
Severity
High
Med
Low
Major
P1
P2
P3
Minor
P2
P3
P4
Trivial
P3
P4
P5
XXXX/ Learning Media Service Level Agreement. **** 2012
8
a
4A. Response matrix definitions
Severity
Severity
Major
Minor
Trivial
Description
Service is unavailable.
Service is available but functionality is compromised.
Service is available but some minor functionality is compromised.
Impact
Impact
High
Medium
Low
Description
The incident has a significant impact on a majority of users
The incident has a significant impact on a minority of users
The incident has a minor impact on users
Priority
Priority
P1
P2
P3
P4
P5
Response time
2 hours
½ day
1 day
2 days
5 days
5. Costs
These are the costs for the services under this SLA
Monthly fee
Service type
Hosting
Amount
200.00 + gst
Disaster Recovery - hosting
148.00 + gst
Frequency/Comments
Monthly fee incl. 10GB traffic and a
third party monitoring service
Monthly fee
Additional pricing options
 Issues will be resolved under these costs
Helpdesk support
$120.00 per hour + gst
Training
$120.00 per hour + gst
Programmer
$130.00 per hour + gst
Developer
$130.00 per hour + gst
Tester
$130.00 per hour + gst
Systems administrator
$130.00 per hour + gst
XXXX/ Learning Media Service Level Agreement. **** 2012
As occurs
Minimum call 15 minutes
As required
Pricing on application
As occurs
Minimum charge 15 minutes
As occurs
Minimum charge 15 minutes
As occurs
Minimum charge 15 minutes
As occurs
Minimum charge 15 minutes
9
a
6. Payment & Invoicing
**** will pay all moneys payable to Learning Media under this Agreement upon receipt of an invoice
from Learning Media. Learning Media will send **** invoices at the end of each month.
**** agrees to pay invoices by the 20th of the month following the issue of the invoice.
In addition to costs contained in this Agreement, Learning Media will charge and **** will pay goods
and service tax (GST) as determined under the Goods and Services Tax Act 1985 (if any). No
amounts included in this Agreement include GST, unless specifically indicated otherwise.
In the event that there is a dispute over monies owed, ****’s obligation is to pay the invoice or the
portion of the invoice not in dispute by the due date. Otherwise services will be suspended while the
matter is being investigated. If an error is found, Learning Media will adjust the account. If no error is
found, the outstanding amount will be due immediately.
7. Acceptance
I agree to the entirety of the entitlements and obligations placed on me by this Agreement,
and accept all terms and conditions contained below in the Terms and Conditions. If there is
any inconsistency or conflict between sections 1-3 and section 4, then sections 1-3 shall
take precedence to the extent of any inconsistency or conflict.
Governing Law: Everything contained in this Agreement, and all dealings between Learning
Media and **** will be governed by New Zealand law.
Signed :
Signed :
Date :
Date :
XXXXXXX
Learning Media
XXXX/ Learning Media Service Level Agreement. **** 2012
10
a
8. Terms and Conditions
Learning Media will:


perform the Services in accordance with this Service Level Agreement (Agreement) and these
Standard Terms
provide the Services with the due care, diligence and skill reasonably expected of a
competent and experienced organisation normally providing such Services.
Subcontracting: Learning Media may appoint (or change) a subcontractor to perform all or any of
the Services provided that if a proposed subcontractor will have access either to the Client’s
confidential information or to the Client’s premises, such subcontracting shall be subject to the
Client’s proper written approval, such approval not to be unreasonably withheld, and subject to
reasonable conditions. To avoid doubt, Learning Media acknowledges that it is, and will always
remain, principally liable for any Service supplied on its behalf by any subcontractor.
Security of Material: Learning Media must ensure that all Client material (including, without
limitation, any Data that is in Learning Media’s possession is kept confidential.
The Client’s Obligations
The Client must:
 comply with its obligations specified in this Agreement and these Standard Terms; accept the
Services on the terms set out in this Agreement and these Standard Terms
 give Learning Media all necessary assistance and make all necessary arrangements to enable
Learning Media to enter upon the Client’s property as is reasonably necessary for the
provision of the Services
 provide to Learning Media all documents, consents and other information reasonably required
by Learning Media in order to carry out the Services
 retain a backup copy of all Data provided to Learning Media in this Agreement and these
Standard Terms.
Charges, Invoicing and Payment
Charges: The Client must pay the Charges specified in this Agreement for the performance of
Services under this Agreement.
Submission of Invoices: Learning Media may invoice the Client for on-going work under this
Agreement on a monthly basis.
Payment date: The Client must make payment to Learning Media on the 20th day of the month
following the month in which a valid tax invoice was issued by Learning Media specifying the Services
to which the invoice relates.
Hosting cost increases:
Learning Media will endeavour to keep any annual price increase to within the CCP (Contribution to
Cost Pressures) for that year. Any increase above the CCP would be with the mutual agreement of
Learning Media and ****.
Direct Credit: The standard payment procedure for Learning Media’s invoices will be by direct
credit to its account specified in this Agreement.
XXXX/ Learning Media Service Level Agreement. **** 2012
11
a
Interest Charge: Without prejudice to Learning Media’s other legal remedies, Learning Media may
charge the Client
interest on any amount due and payable under this Agreement and these Standard Terms which has
not paid within 20 days after its due date. Interest will be calculated daily from the due date until the
date of payment at the per annum rate of 1.5% plus the current 90 day bill bank rate. Interest shall
be compounded monthly. This clause does not prejudice any other rights or remedies Learning Media
may have at law or under this Agreement and these Standard Terms. Interest shall not be payable in
relation to any amount which is disputed by the Client in good faith.
GST: The Charges are exclusive of GST which, if applicable, shall be payable by the Client in addition
to the Charges and at the same time such Charges are due.
Disputed Invoices: If any invoice or part of an invoice submitted by Learning Media is disputed by
the Client:



the Client must within 30 working days notify Learning Media of the reasons why such invoice
or part is disputed and must not delay payment of the (undisputed) remainder of the invoice
if the parties are unable to resolve the dispute within 10 days, Dispute Resolution will apply
upon resolution of the dispute (whether by agreement or under Dispute resolution) the
agreed amount must be paid by the Client within 10 days.
Termination
Term: This Agreement starts on the date specified in the SLA, or in the absence of any specified
date, on the date that it bears the signatures of both parties. The Agreement will continue for any
fixed term specified in the SLA, or, in the absence of any specified term, until the provision of the
Services is complete (unless terminated prior in accordance with the following provisions).
Termination by Learning Media: Learning Media may terminate all or part of this Agreement at
any time by giving **** 20 Business Days written notice.
Termination by ****: **** may terminate all or part of this Agreement at any time by giving
Learning Media 20 Business Days written notice.
Termination for Breach: If either Party breaches a material term of this Agreement, and, having
received written notice from the other Party requesting remedy of the breach, fails to do so within 10
Business Days, the party giving notice may terminate this Agreement in part or in its entirety by
giving written notice to the party in breach.
Termination for Non-Payment: In the event that Learning Media suspends all or part of the
Services in accordance with the section 2 (Costs), Learning Media may terminate all or part of this
Agreement by giving **** 20 Business Days written notice.
Termination for Insolvency: Either party may terminate this Agreement immediately where the
other:
 Enters into or is placed in receivership or liquidation, other than for legitimate purposes of
reorganisation); or

Enters a composition with its creditors and is unable to reasonably satisfy the other of its
ability to continue to perform its material obligations under this Agreement.
XXXX/ Learning Media Service Level Agreement. **** 2012
12
a
Liability and Exclusion of Warranties
Maximum liability: The maximum aggregate liability of either party to the other for all claims
under or in connection with this Agreement or these Standard Terms in respect of any event or series
of related events shall not in any circumstances exceed the lesser of:
The Charges payable to Learning Media under this Agreement to which the event relates in the 12
months prior to that event occurring $100,000

whether such liability arises in contract, tort (including negligence), breach of statutory or
fiduciary duty or otherwise.
Consequential loss: To the maximum extent permitted by law, neither party is liable to the other
for:
 any loss of income, profit, savings or any other form of economic loss
 any indirect, incidental or consequential loss or damage suffered by the other party or for any
punitive damages.
No implied warranties: Learning Media’s warranties are limited to those set out in this Agreement
and these Standard Terms and any implied condition or warranty (including any warranty under the
Sales of Goods Act 1908) is hereby excluded.
Confidential Information
General obligations of confidentiality: Each party acknowledges that the Confidential
Information of the other party is valuable to that other party and undertakes to keep the Confidential
Information of that other party, all Agreements and these Standard Terms and their contents, secure
and secret and not to disclose it except:



to the extent required to perform this Agreement or these Standard Terms
to its professional advisers in connection this Agreement or these Standard Terms
if required to do so by law.
Use of Confidential Information: The Confidential Information of each party will remain the
property of that party. The Client and Learning Media must not, without the prior written consent of
the other, use any Confidential Information of the other party except for the purpose of performing
this Agreement or these Standard Terms.
No announcements without consent: Neither party will cause in any way the existence or
contents of this Agreement or these Standard Terms to be published in any newspaper, magazine,
journal or broadcast on radio or television, or other advertising medium; or to be made known in any
other manner, unless prior written approval has been given by the other party.
Disclosure required: Where a party is required to by law to disclose Confidential Information, or
this Agreement or these Standard Terms or any of their contents, it will use its best endeavours to
first notify the other party prior to making that disclosure.
Return or destruction of Confidential Information on termination: At the request of either
party (“the first party) at any time, and on termination or expiry of this Agreement or these Standard
Terms, the other party must destroy or return (at the first party’s option) all Confidential Information
of the first party (provided that in the case of termination of this individual Agreement, that
Confidential Information shall be limited to Confidential Information relating to this Agreement).
XXXX/ Learning Media Service Level Agreement. **** 2012
13
a
Without limitation to the foregoing, Learning Media shall permanently delete all computer records
containing such Confidential Information.
Intellectual Property and Licensing
Existing Intellectual property: Each party retains its rights in any Intellectual Property that exists
as at the commencement of a Statement of Work.
Licence to Learning Media: The Client licences Learning Media to use the Client’s Intellectual
Property solely to perform the Services.
New Intellectual Property: Except as otherwise provided in a Statement of Work, all new
Intellectual Property arising in connection with the performance of the Services, including all
modifications and adaptations of existing Intellectual Property, shall vest in and remain the property
of Learning Media as such rights arise and may only be used by the Client for the purpose set out in
the Statement of Work or with the prior written consent of Learning Media. If the Statement of Work
specifies joint ownership of any Intellectual Property, such Intellectual Property shall be jointly owned
by the parties and each party shall be entitled to use and/or modify such Intellectual Property at its
discretion and without reference to the other party.
Warranties: Learning Media warrants that, excluding the Data and any other Client-supplied
material and the use of the same by Learning Media to provide the Services, the supply of any
Deliverable under a Statement of Work or these Standard Terms will not infringe the Intellectual
Property rights of any third party.
The Client warrants that it is entitled to provide the Data or any other Client-supplied material to
Learning Media in connection with a Statement of Work or these Standard Terms and that the use of
that Data or such other material by Learning Media to provide the Services will not breach the
Intellectual Property rights of any third party.
Force Majeure
Force Majeure: A party will not be liable for any delay or failure to perform its obligations under
this Agreement or these Standard Terms if such delay is due to Force Majeure.
Obligations Suspended: If a delay or failure of a party to perform its obligations is caused by
Force Majeure, the performance of that party’s obligations will be suspended. The party unable to
fulfill its obligations due to Force Majeure shall immediately:


notify the other party in writing of the reasons for its failure to fulfill its obligations and the
effect of such failure
use all reasonable endeavours to avoid or remove the cause and perform its obligations as
soon as possible.
Obligations to be resumed: Performance of any obligation affected by Force Majeure must be
resumed as soon as reasonably possible after the termination or abatement of the Force Majeure.
Inability to Perform: If by reason of Force Majeure a party is unable to perform any obligation
under this Agreement or these Standard Terms and if the failure to perform the obligation continues
for 10 working days, the other party may terminate that part or the whole of this Agreement or these
Standard Terms affected by the Force Majeure.
XXXX/ Learning Media Service Level Agreement. **** 2012
14
a
Dispute Resolution
Notice of Dispute: If any dispute or question arises concerning this Agreement or these Standard
Terms (“dispute”), either party may give written notice to the other requiring the parties to meet
promptly to discuss that dispute. If the dispute is not resolved within 20 working days, it will be
immediately escalated to the parties’ authorised representatives or their nominees.
Mediation: If the dispute is not resolved by agreement within 10 working days (or such longer
period as they both agree) of it being referred to the authorised representatives of the parties, one
party, by notice to the other, may refer the dispute to mediation, before a mediator and by rules to
be agreed. If the parties cannot agree on a mediator, the chairperson for the time being of LEADR
New Zealand Inc (or nominee) will be requested to appoint a mediator within 10 days of the request.
If the parties cannot agree on the rules of the mediation, the mediator will set the timetable and the
rules will be LEADR’s standard rules.
Court Proceedings: If the dispute is not resolved within 20 working days (or such longer period as
the parties agree) after commencing mediation, then a party may pursue the dispute through Court
proceedings.
Injunctions: This clause does not affect either party’s right to seek urgent interlocutory and/or
injunctive relief from any Court of competent jurisdiction.
Agreement continues: While any dispute remains unresolved, the parties must continue to
perform this Agreement or these Standard Terms to the extent that such performance is possible,
given the nature of the dispute.
Governing law and jurisdiction: All Agreements and these Standard Terms and any dispute or
matter arising in connection with them shall be governed by New Zealand law. The parties hereby
submit, subject to the above clauses, to the non-exclusive jurisdiction of the New Zealand Courts in
respect of any dispute or other matter arising in connection with this Agreement or these Standard
Terms.
Notices
Giving of Notices: Notices under this Agreement or these Standard Terms may be delivered by
hand, by mail or by fax to the addresses specified in this Agreement or to such other address as
either party may from time to time notify to the other in writing.
Deemed delivery: Notice will be deemed given in the case of hand delivery, upon written
acknowledgement of receipt by or on behalf of the receiving party; in the case of notice given by post
within 2 working days after posting within New Zealand or 14 working days if posted outside New
Zealand; and in the case of notice given by fax, at the time specified in the fax transmission report of
the fax from which the transmission was made evidencing full transmission, free of errors, to the fax
number of the party to whom the notice is given.
General
Employees: Neither party will actively solicit or entice any employee of the other party to terminate
their employment with the other party. No Agency, partnership or joint venture: nothing in this
Agreement or these Standard Terms will be deemed to constitute either party as the agent, partner
or joint venturer of the other.
XXXX/ Learning Media Service Level Agreement. **** 2012
15
a
Severance: If any provision contained in this Agreement or these Standard Terms is held invalid,
unenforceable or illegal for any reason, it will be severable, and will be deemed deleted from this
Agreement or these Standard Terms and will not affect the validity or enforceability of other
provisions in this Agreement or these Standard Terms.
Waiver: Any delay or failure by either party to exercise (in whole or in part) any right under this
Agreement or these Standard Terms will not operate as a waiver of such right. A waiver by either
party of any breach of any provision of this Agreement or these Standard Terms will 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 will not be, or be deemed to be, a waiver of any other or subsequent breach.
No Transfer or assignment: Neither party may transfer or assign its interests in this Agreement or
these Standard Terms, or any part of it, without the prior written consent of the other party provided
that Learning Media may assign its interest in this Agreement or these Standard Terms to any related
company (as that term is defined in the Companies Act 1993 (New Zealand)). Learning Media must
give notice to The Client of any such assignment.
Business purposes: The Client acknowledges and agrees The Client is acquiring the Services and
Deliverables for the purposes of a business and that the Consumer Guarantees Act 1993 does not
apply to the supply of the Services and any deliverables by Learning Media.
Entire agreement: Each Agreement and these Standard Terms constitute, as of the date of this
Agreement, the entire agreement between the parties as it relates to the subject matter of this
Agreement, and supersedes all previous agreements, undertakings and negotiations on that subject
matter. All amendments of this Agreement or these Standard Terms must be in writing signed by
both parties.
Definitions
“Agreement” means this Service Level Agreement expressed to be governed by these Standard
Terms and signed in writing by both parties.
“Charges” means the charges payable by the Client to Learning Media for the provision of the
Services provided under this Agreement, as specified in this Agreement.
“Client” means the client named in this Agreement.
“Confidential Information” means, in relation to a party, all information concerning the
organisation, administration, operation, business, customers, clients, finance, methods and systems
(including any secret process or formula or other trade secret) of that party. The Confidential
Information of Learning Media includes all information produced or used in connection with any
Service or deliverables provided under this Agreement or these Standard Terms.
“Data” means all information, data, records, documents and trade secrets concerning: the
transactions, business affairs, products, plans, intentions, operations, processes, know-how and
business affairs of the Client.
The Client’s customers (including, without limitation, all customer account and transaction data),
(whether digital, electronic or otherwise) held or controlled by Learning Media in connection with any
this Agreement or these Standard Terms.
XXXX/ Learning Media Service Level Agreement. **** 2012
16
a
“Force Majeure” includes any delay in acceptance of an item by an addressee, act of God,
earthquake, volcanic activity, flood, fire, or adverse weather condition, sabotage, riot, civil
disturbance, epidemic, national emergency or act of war, governmental action, and other similar
causes beyond the reasonable control of the party claiming the benefit of the Force Majeure clause in
these Standard Terms. Force Majeure does not include: any event which the party affected could
have prevented or overcome by exercising reasonable care at a reasonable cost; or a lack of funds for
any reason.
“GST” means goods and service tax chargeable under the New Zealand Good and Services Tax Act
1985 (and any equivalent taxes payable in any other jurisdiction).
“Intellectual Property” includes any right to, and any interest in, any patent, design, trade mark,
copyright, trade secret or any other proprietary right or form of intellectual property (whether
protectable by registration or not).
“Standard Terms” means these Learning Media standard terms and any other document,
incorporated in them by reference or physical attachment.
“Services” means any service to be provided by Learning Media to the Client under this Agreement.
---------------------------
XXXX/ Learning Media Service Level Agreement. **** 2012
17