TERMS AND CONDITIONS
Services
In consideration of your payment of the Fees, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.
We will not be responsible for any Services unless expressly set out in the inclusions in the Schedule.
Subject to any other provisions of this Agreement, we will commence providing the Services within a reasonable time after the Commencement Date, or as otherwise agreed between the Parties in the Schedule, Service Order or otherwise.
The ‘main point of contact’ of each Party, as indicated in the Schedule, shall undertake all commercially reasonable efforts to consult and support the other Party for the purpose of promoting the relationship and the joint success of both Parties.
Orders
During the Term, you may engage us to supply the Services under separate Service Orders.
Each Service Order will continue for the Service Order Term.
A form of Service Order is provided at Attachment 1 to this Agreement.
You may issue a request for us to provide Services by email or by any other process which we may advise to you, from time to time (Order Request).
We may, in our discretion, accept or reject an Order Request. If we accept the Order Request, we will issue a Service Order, and once the Service Order is agreed by both Parties in writing, it will be binding in accordance with the terms of this Agreement and the Service Order.
SaaS Licence
In consideration of your payment of the Software Fee, we will supply you with the Software in accordance with the Schedule.
During the Term, and subject to your compliance with this Agreement, we grant you and your Authorised Users a non-exclusive, non-transferable, non-sublicensable and revocable licence to access and use the Software solely for your business purposes and as contemplated by this Agreement (SaaS Licence).
You agree that the SaaS Licence permits you to access and use the Software in accordance with the SaaS Conditions, as set out in the Schedule.
You will ensure each Authorised User complies with the terms of this Agreement.
Account
You will require an Account in order to access and use the Software.
Each Authorised User will require a login (which is linked to your Account), in order to access and use the Software.
You must ensure that any information provided to us for any Account or login is accurate and complete, and you warrant that you are authorised to provide this information to us.
You and your Authorised Users must keep your Account and login details secure and confidential. You agree to immediately notify us if you become aware of, or have reason to suspect, any suspicious or unauthorised access to your Account or use of any login details linked to your Account.
We may suspend access to your Account where we reasonably believe there has been any unauthorised use of or access to the Software. Where we do so, we will notify you within a reasonable time of the suspension occurring, and the Parties will work together to resolve the matter.
Trial
In indicated in any Service Order, we may offer you a Trial Account designed to allow you to evaluate the Services and make sure they are right for you.
We have the right to terminate any Trial Account if we determine (acting reasonably) that you or any Authorised User are misusing the Services.
You may terminate your Trial Account at any time during any Trial Period.
If you do not wish to continue using the Services beyond the Trial Period, you must cancel your Trial Account before the end of the Trial Period by notifying us in writing. If you do not cancel your Trial Account before the end of the Trial Period, you agree that your Trial Account will automatically rollover onto a fully paid Account, and the Parties agree to be bound by the terms of this Agreement for the duration of the Term.
Beta Services
For the purposes of this clause:
“Beta Services” means any services, software or functionality provided by us that are not generally available to customers and which are designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
From time to time, we may invite you to try Beta Services. You may accept or decline any such trial at your sole discretion. If you accept, we will provide you with access to the Beta Services at no additional cost.
You acknowledge and agree that:
any Beta Services are for evaluation purposes only and not for production use;
any Beta Services are not subject to the Service Levels;
the Beta Services may be subject to additional terms and conditions (which if applicable, will be provided to you and that you must accept before you are provided with access to the Beta Services);
we have no obligation to maintain, support, update, or provide error corrections for the Beta Services; and
we may discontinue Beta Services at any time at our sole discretion, and we reserve the right to never make the Beta Services generally available.
To the maximum extent permitted by law:
we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with any Beta Services; and
the Beta Services are provided “as is”, are exclusive of any warranty whatsoever, and we expressly disclaim any warranties of merchantability or fitness for a particular purpose.
SaaS Licence – Additional Conditions of Use
You must not (and you must ensure that each Authorised User does not):
access or use the Software except as permitted by the SaaS Licence, or other than through the interface that is provided by us;
access or use the Software in any way that is improper or breaches any Laws, infringes any person's rights (including Intellectual Property Rights and privacy rights), or gives rise to any civil or criminal liability;
interfere with or interrupt the supply of the Software or our System, or any other person’s access to or use of the Software;
introduce any Harmful Code into the Software or our System;
directly or indirectly use, copy, decompile or reverse engineer the Software;
allow others to access or use your Account (or in the case of Authorised Users, their login details), including any password or authentication details;
use the Software to carry out security breaches or disruptions of a network;
attempt to access any data or log into any server or account that you are not expressly authorised to access;
circumvent user authentication or security of any of our networks, accounts or hosts or those of any third party; or
access or use the Software to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.
Availability
From time to time, scheduled and emergency maintenance and updates in relation to the Software may be necessary in order to continue to supply the Software to you (Scheduled or Emergency Maintenance). You agree that access to, or the functionality of all or part of the Software, may need to be suspended for a time in order for Scheduled or Emergency Maintenance to be performed, and to the maximum extent permitted by law, we will not be liable to you for any interruptions or downtime to the Software as a result of Scheduled or Emergency Maintenance caused or contributed to by events or circumstances occurring outside of our reasonable control (including but not limited to Scheduled or Emergency Maintenance to any Third Party Inputs).
We will endeavour to provide you with reasonable notice, where possible, of any interruptions to access and availability of the Software.
Viruses and Defects
We agree to use reasonable commercial efforts to supply the Services free from defects and viruses. To the extent commercially feasible and reasonable, we further agree to remediate any such defects and viruses (with the exception of Third Party Inputs) within a reasonable time and as we become aware of them. If you become aware of any issues during the Term, please notify us.
Third Party Inputs
You acknowledge and agree that the Services may interact with, or be reliant on, certain Third Party Inputs, including your operating system, web browser, and CRM.
You acknowledge and agree that, unless we have expressly agreed to provide the services described in this clause 10.2 in the Schedule:
you are responsible for obtaining and managing all licences for the relevant Third Party Inputs;
you are responsible for paying all fees related to the Third Party Inputs; and
you agree to comply with terms and conditions applicable to the relevant Third Party Inputs at all times.
We do not make any warranty or representation in respect of any Third Party Inputs.
Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with any Third Party Inputs, subject to clause 10.5.
Should any unavailability, error or change to a Third Party Input have a substantial and adverse impact on your use and enjoyment of the Services:
you agree to notify us in writing within 5 Business Days of the change coming into effect; and
following receipt of such notice by us, the Parties will use all reasonable endeavours to work together to resolve the matter.
This clause 10 will survive the termination or expiry of this Agreement.
Implementation Services
If indicated in any Service Order, and in consideration of your payment of the Implementation Service Fee, we will supply you with the Implementation Services in accordance with the Service Order.
Prior to us supplying the Implementation Services, you agree to:
make a backup of any relevant data in your Systems which is to be the subject of, or to be used in the performance of, the Services;
make a written note or make a backup of any configuration settings or information stored in your Systems;
make a plan to restore your Systems in the event that they are corrupted or lost;
notify any relevant parties of any planned outages or downtime necessary for the performance of the Implementation Services;
provide us with all information that is within your knowledge in relation to the System which would be reasonably necessary for us to know in order to perform the Implementation Services; and
where the equipment in your System is a computer, download and install any available:
security and protection updates for the operating system you use; and
updates to virus checking and other computer protection software you use.
You acknowledge and agree that not undertaking your obligations under clause 11.2 may impact on the results or the performance of the Services, and we will not be liable to you for any Liability to the extent caused or contributed to by your failure to comply with clause 11.2.
Support Services
In this clause, “Support Services” means access to our online help desk between 9am and 5pm NZST on Business Days.
In order for you to receive the Support Services, you or your Authorised User must place a request using the Marker.io Chrome Extension and use the dedicated Slack channel to escalate the request.
We will use our best endeavours to make the Support Services available to you during the Term.
Unless otherwise agreed, support under this Agreement is not to be used to support any other products or services and does not include training, installation of software or hardware, software development or the modification, deletion or recovery of data or any on-site services.
You agree to the reasonable usage of the Support Services. Where we consider your usage of the Support Services to be unreasonable, or unreasonably above average (compared with our other customers):
we agree to notify you in writing of our concerns; and
following your receipt of such notice, the Parties will use all reasonable endeavours to work together to resolve the matter.
If:
we have provided you with the notice in accordance with clause 12.4(a); and
the Parties are unable to resolve the matter pursuant to clause 12.4(b),
we may (at our discretion):
adjust our response time accordingly; and/or
vary the Fees to reflect your increased use of our limited resources, effective on and from us giving you written notice of the new Fees
Hosting and Backup Services
If indicated in any Service Order, and in consideration of your payment of the Hosting and Backup Fee, we will supply you with the Hosting and Backup Services in accordance with the Service Order.
The hosting or back up of anything not specifically listed in any Service Order is out of scope and must be requested as an Additional Service, in accordance with clause 15.
We reserve the right to perform maintenance and upgrades at any time and from time to time.
We will use commercially reasonable endeavours to:
provide you with reasonable notice of maintenance and upgrades relevant to the Hosting and Backup Services by sending you an email about any scheduled maintenance or upgrades that will result in an outage of more than 2 minutes; or
notify you as soon as practicable after becoming aware of the need for unscheduled maintenance relevant to the Hosting and Backup Services that will result in an outage of more than 2 minutes.
In the event of a failure in the Hosting and Backup Services, we will use commercially reasonable endeavours to restore Your Data that is affected. However, you acknowledge that there may be situations in which Your Data cannot be recovered or Your Data retained may be out of date. To the maximum extent permitted by law, you agree that this clause 13.5 sets out our entire obligation with respect to disaster recovery and loss of Your Data in connection with the Hosting and Backup Services.
Development Services
For the purpose of this clause:
“Milestones” means the event or tasks to be completed by us in the performance of the Development Services, as particularised in any Service Order; and
“Developed IP” means the Intellectual Property that we develop for you as a direct result of the performance of the Development Services, and excludes Our Materials and the Content.
If indicated in any Service Order, and in consideration of your payment of the Development Services Fee, we will supply you with the Development Services in accordance with any Service Order.
You agree that the Milestones and any dates for completion are an estimate only, and may be impacted by a failure by you to meet your obligations under this Agreement. As such, we will not be liable in relation to, and you waive and release us from, any loss or Liability incurred in relation to any delay in the performance of the Development Services outside of our reasonable control.
Ownership of all Intellectual Property Rights in the Developed IP will vest in us upon creation. We grant you a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence to use the Developed IP solely for the purpose of assessing the Developed IP’s compliance with this Agreement.
Upon payment in full of the Development Services Fee, ownership of all Intellectual Property Rights in the Developed IP will vest in you. You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence to use the Developed IP solely for the purposes for which it was developed and for the performance of our obligations under this Agreement.
Additional Services
You may request Additional Services, including support and assistance on a consultancy basis or bespoke customisation to the scope or functionality of the Software, by providing written notice to us.
We may, at our discretion, provide you with written notice in the form of a statement of work, setting out (among other things) the Additional Services requested and any further fee required for us to undertake the Additional Services (Statement of Work).
If you agree to the Statement of Work for the Additional Services, we will provide the Additional Services to you in consideration for payment of the additional fee, which will form part of the Fees.
Each Statement of Work will be subject to, and will be governed by, this Agreement and any other conditions agreed to by the Parties in writing. To the extent of any ambiguity or discrepancy between a Statement of Work and this Agreement, the terms of this Agreement will prevail.
Service Levels
We will endeavour to provide the Services in accordance with the Service Levels.
We will not liable to you, for any Service Level failure caused or contributed to by any act or omission by you or any Authorised User.
Security
Subject to the terms of this Agreement, we will establish and maintain appropriate, reasonable technical and organisational security measures in accordance with good industry practice to keep Your Data secure.
Variations
You may request a variation or change to the Services, including the timing for the provision of the Services, or a change to the SaaS Conditions) (Variation), by providing written notice (including by email and our online portal) to us, with details of the Variation (Variation Request). We will not be obliged to comply with a Variation Request unless we accept the Variation Request in writing. The Parties agree to comply with this Agreement as varied by any Variation Request accepted in writing.
If we consider that any instruction or direction from you constitutes a Variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued and accepted by us in accordance with this clause 18.
Any Variation will apply within a reasonable time after our acceptance of your Variation Request, and if applicable, any increase to the Fees will be charged on a pro-rata basis if such increase occurs during the then-current Fee period.
Your Obligations and Representations
You agree:
to comply with this Agreement and all applicable Laws;
to provide all assistance, information, documentation, access, facilities and other things reasonably necessary to enable us to comply with our obligations under this Agreement or at Law;
to ensure all information provided to us is kept up-to-date and the email address you provide is valid and regularly checked;
to make any changes to your Systems, such as System upgrades, that may be required to support the delivery and operation of any Services;
to ensure that any Systems used in connection with the Services have all necessary approvals and comply with all Laws;
that you have reviewed and understand the terms of this Agreement (including our Privacy Policy), and that you (and Authorised Users) will use the Services in accordance with them;
to notify us of any breach or suspected breach of this Agreement by you (or an Authorised User), within 48 hours of becoming aware of any such breach or suspected breach; and
that you are responsible for all Authorised Users and other users within your organisation or within your control using the Services, including your Personnel.
You acknowledge and agree that:
the technical processing and transmission of the Services, including Your Data, may be transferred unencrypted and involves transmissions over various networks; and changes to conform and adapt to technical requirements of connecting networks or devices;
the Services are provided to you and your Authorised Users, solely for your and your Authorised Users’ benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent;
you will be responsible for the use of any part of the Services by your Authorised Users and any other person you provide with access to the Services, and you must ensure that no person uses any part of the Services:
to break any Law or infringe any person’s rights (including Intellectual Property Rights);
to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
in any way that damages, interferes with or interrupts the supply of the Services; and
you will not alter or modify the Services in any way that is not contemplated by the purposes of the Services.
Payment
You agree to pay us the Fees, and any other amount payable to us under this Agreement, in accordance with the Payment Terms.
If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):
after a period of 5 Business Days, cease providing the Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so (including legal fees, debt collector fees and mercantile agent fees); and/or
charge interest at a rate equal to the Reserve Bank of New Zealand’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.
To the maximum extent permitted by law, there will be no refunds or credits for any unused Services (or part thereof).
Warranties
We agree:
that we are properly constituted and have the right and authority to enter into this Agreement;
that we will use reasonable efforts to ensure all of our obligations under this Agreement will be carried out by suitably competent and trained Personnel and in an efficient and professional manner;
that we have legal authority to grant you the SaaS Licence;
that all pre-existing Intellectual Property Rights in the Services (with the exception of the property rights in any Third-Party Inputs) will be owned, held or licensed by us;
that the provision of the Services does not and will not infringe any other person’s Intellectual Property Rights; and
that the Services will operate and be provided in accordance with this Agreement.
You represent, warrant and agree that:
you will provide us with any information that we require in order to provide the Services to you (for example, information that we need to set up the Accounts, or get you onboarded);
there are no legal restrictions preventing you from entering into this Agreement;
all information and documentation that you provide to us in connection with this Agreement is true, correct and complete; and
you are able to pay your debts as they fall due.
Intellectual Property
As between the Parties:
we own all Intellectual Property Rights in Our Materials, the New Materials and Improvements;
you own all Intellectual Property Rights in Your Materials; and
nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.
As between the Parties, ownership of all Intellectual Property Rights in any Content will vest in you.
In the use of any Intellectual Property Rights in connection with this Agreement, you agree that you must not (and you must ensure that your Personnel and your Authorised Users do not) commit any Intellectual Property Breach. Where you reasonably suspect that such a breach may have occurred, you must notify us immediately.
You also agree that:
we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback;
you must not whether directly or indirectly, without our prior written consent:
copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile any part of the Services or otherwise attempt to discover any part of the source code of the Software;
use any unauthorised, modified version of the Services, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the Software;
unless authorised under this Agreement, use the Services in a web-enabled form for the purposes of third-party analysis or view via the internet or other external network access method;
rent or sublicence the use of the Services to any third parties, without our prior written consent or as otherwise permitted under this Agreement;
take any action that may compromise or jeopardise our Intellectual Property Rights in the Services or otherwise;
remove or deface any confidentiality, copyright or other proprietary notice placed on the Services; or
use the Services in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing.
You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use the Content, in order for us to provide the Services, and for the performance of our obligations under this Agreement, and as otherwise contemplated by this Agreement.
If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.
Your Data
As between the Parties:
Your Data is and will remain your property; and
you retain any and all rights, title and interest in and to Your Data, including all copies, modifications, extensions and derivative works.
You grant us a limited licence to copy, transmit, store, backup and/or otherwise access or use Your Data during the Term (and for a reasonable period after the Term), to:
supply the Services to you and your Authorised Users (including to enable you and your Personnel to access and use the Services), and otherwise perform our obligations under this Agreement;
diagnose problems with the Services;
enhance and otherwise modify the Services;
perform Analytics;
develop other services, provided we de-identify Your Data; and
as reasonably required to perform our obligations under this Agreement.
You acknowledge and agree that:
we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, your Authorised Users or your Personnel; and
you are solely responsible for backing up Your Data.
You represent, warrant, acknowledge and agree that:
you have obtained all necessary rights, releases and permissions to provide or have Your Data provided to us and to grant the rights granted to us in this Agreement;
Your Data (and its transfer to and/or use, collection, storage or disclosure by us as contemplated by this Agreement) does not and will not violate any Laws (including those relating to export control and electronic communications) or the rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and
the operation of the Services is reliant on the accuracy and completeness of Your Data, and the provision by you of Your Data that is inaccurate or incomplete may affect the use, output and operation of the Services.
This clause 22 will survive termination or expiry of this Agreement.
Analytics
You acknowledge and agree that we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:
does not contain any identifying information; and
is not compiled using a sample size small enough to make underlying portions of Your Data identifiable.
We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.
We may use and disclose to our service providers anonymous data about your access and use of the Software for the purpose of helping us improve the Software. Any such disclosure will not include details of your, or any Authorised User’s, identity or personal information.
Confidential Information
Each Receiving Party agrees:
not to disclose the Confidential Information of the Disclosing Party to any third party;
to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
The obligations in clause 24.1 do not apply to Confidential Information that:
is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;
is authorised to be disclosed by the Disclosing Party;
is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or
must be disclosed by Law or by a regulatory authority, including under subpoena.
Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 24. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 24.
This clause 24 will survive the termination of this Agreement.
New Zealand Consumer Law
Certain consumer protection laws (such as the Consumer Guarantees Act 1993 and the Fair Trading Act 1986), and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of our services which cannot be excluded, restricted or modified (Consumer Law Rights).
If such laws apply to you as a consumer, nothing in this Agreement excludes your Consumer Law Rights. You agree that our Liability for the Services provided to an entity defined as a consumer under legislation is governed solely by that legislation and this Agreement.
Subject to your Consumer Law Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or any other basis. Any implied condition or warranty (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) is excluded.
If you are acquiring the Services for the purposes of trade, we and you agree that:
to the maximum extent permitted by law, the Consumer Guarantees Act 1993 does not apply to the supply of the Services or this Agreement; and
it is fair and reasonable that us and you are bound by this Agreement including this clause.
This clause 25 will survive termination or expiry of this Agreement.
Exclusions to liability
To the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
your Computing Environment;
your, your Authorised Users, or your Personnel’s acts or omissions;
any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by this Agreement; and
any works, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by us.
This clause 26 will survive the termination or expiry of this Agreement.
Limitations on liability
Despite anything to the contrary, to the maximum extent permitted by law:
neither Party will be liable for Consequential Loss;
a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by the other Party to mitigate its loss; and
our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the cumulative Fees paid by you in the 12 months preceding the date the Liability arose.
This clause 27 will survive the termination or expiry of this Agreement.
Termination
This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
the Defaulting Party is unable to pay its debts as they fall due.
Unless otherwise agreed between the Parties, if this Agreement is terminated, then any outstanding Service Orders will continue in accordance with the terms of the Service Order (and this Agreement) until such time as the Service Order is complete or the Service Order is otherwise terminated in accordance with its terms.
Upon expiry or termination of this Agreement:
we will immediately cease providing the Services;
we will be entitled to anonymise or permanently delete all Your Data within 1 month from expiry or termination of this Agreement;
you agree that any payments made by you to us for Services performed up until the date of termination or expiry are not refundable to you;
you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
upon request by us, you agree to promptly return (where possible), or delete or destroy (where not possible to return), any information, documentation or Intellectual Property owned by us that is in your possession or control, subject to clause 22.
Where this Agreement is terminated pursuant to clause 28.1, the Defaulting Party agrees to pay the Non-Defaulting Party’s additional costs, reasonably incurred, and which arise directly from such termination including legal fees, debt collector fees and mercantile agent fees.
Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
This clause 28 will survive the termination or expiry of this Agreement.
General
Access: The Services may be accessed in New Zealand and overseas. We make no representation that the Services comply with the Laws (including Intellectual Property Laws) of any country outside of New Zealand. If you access the Services from outside New Zealand, you do so at your own risk and you are responsible for complying with the Laws in the place you access the Services.
Advertising and linked websites: The Software may contain links to websites of third parties. You acknowledge and agree that we do not endorse, and we are not responsible for the content contained on, any such linked websites or any hyperlink contained in a linked website. Your access to or use of any linked website is at your own risk.
Amendment: This Agreement may only be amended by written instrument executed by the Parties.
Assignment: Subject to clause 29.5, a Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.
Disputes: You agree to notify us should you have concerns relating to our performance of the Services. A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the New Zealand Law Society to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. To the maximum extent permitted by law, you release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
Entire agreement: This Agreement contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in this Agreement, and this Agreement supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter. Without limiting the previous sentence, the Parties agree to contract out of sections 9, 12A and 13 of the New Zealand Fair Trading Act 1986, and that it is fair and reasonable that the Parties are bound by this clause 29.9.
Force Majeure: A Party will not be liable for any delay or failure to perform its obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.
GST: If and when payable, GST will be set out in our invoice. You agree to pay the GST at the same time you pay the Fees.
Governing law: This Agreement is governed by the laws of New Zealand. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New Zealand and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
Illegal Requests: We reserve the right to refuse any request for or in relation to any Services that we deem inappropriate, unethical, unreasonable, illegal or otherwise non-compliant with this Agreement.
Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
Online execution: This Agreement may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
Publicity: With your prior written consent, you agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material.
Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
Definitions
In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule or in any Service Order, and:
Account means an account accessible to you and/or your Authorised Users to use the Services, including, the Software.
Additional Services means any Services not set out in the Services description in the Schedule which we agree to provide to you.
Agreement means these terms and conditions and any agreed Service Order issued under it and any documents attached to, or referred to in, each of them.
Authorised User, if applicable, means a user permitted to access and use the Services under your Account, as further particularised in the Schedule.
Business Day means a day on which banks are open for general banking business in Queenstown, New Zealand, excluding Saturdays, Sundays and public holidays.
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems.
Confidential Information includes information which:
is disclosed to the Receiving Party in connection with this Agreement at any time;
is prepared or produced under or in connection with this Agreement at any time;
relates to the Disclosing Party’s business, assets or affairs; or
relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. The Parties acknowledge and agree that your obligation to pay us the Fees under this Agreement will not constitute “Consequential Loss” for the purposes of this definition.
Content all content, materials, information, videos, images, including Intellectual Property, developed, adapted, modified or created by you using the Software.
Disclosing Party means the party disclosing Confidential Information to the Receiving Party.
Feedback means any idea, suggestion, recommendation or request by you or any of your Personnel and your Authorised Users, your customers, whether made verbally, in writing, directly or indirectly, in connection with the Services.
Fees means the price set out in any Service Order, as adjusted in accordance with this Agreement.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Harmful Code means any computer program or virus or other code that is harmful, destructive, disabling or which assists in or enables theft, alternation, denial of service, unauthorised access to or disclosure, destruction or corruption of information or data.
Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by us or our Personnel.
Intellectual Property means any copyright, registered or unregistered designs, patents or trade mark rights, domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights, including any Intellectual Property Rights of third parties), including using or exploiting our Intellectual Property for purposes other than as expressly stated in this Agreement (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the provision of the Services.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Moral Rights has the meaning given in the Copyright Act 1994.
New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or our Personnel in connection with this Agreement or the provision of the Services, whether before or after the date of this Agreement, and, to avoid doubt, excludes the Content and Your Materials.
Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation, and services that we may provide to you under this Agreement, and which may contain material which is owned by or licensed to us, and is protected by New Zealand and international laws.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Privacy Policy means any privacy policy set out on octana.io.
Receiving Party means the party receiving Confidential Information from the Disclosing Party.
Schedule means the schedule to this Agreement.
Services means the services that we agree to perform under this Agreement, as further particularised in the Schedule and any Service Order.
Service Order means an order for the supply of the Services, issued by us in accordance with clause 2, a form of which is provided at Attachment 1 to this Agreement.
Software means the software-as-a-service that we licence to you pursuant to a Service Order.
System means all hardware, software, networks, telecommunications and other IT systems used by a Party from time to time, including a network.
Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.
Your Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you, your Personnel and your Authorised Users into the Services or stored by or generated by your use of the Services, including any Personal Information collected, used, disclosed, stored or otherwise handled in connection with this Agreement. Your Data does not include the Analytics, or any data or information that is generated as a result of your usage of the Services that is a back-end or internal output or an output otherwise generally not available to users of the Services.
Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned or licensed by you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of this Agreement.
Interpretation
In this Agreement, unless the context otherwise requires:
a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
words like including and for example are not words of limitation;
a reference to time is to local time in United States of America (PST); and
a reference to $ or dollars refers to the currency of United States of America (USA) from time to time.
