1. INTERPRETATION        

1.1. Definitions:  The following terms have the stated meaning: 

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1.2. Interpretation:  In the Agreement:

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

b. words in the singular include the plural and vice versa;

c. a reference to:

i. a party to the Agreement includes that party’s permitted assigns;

ii. personnel includes officers, employees, contractors and agents, but a reference to the Client’s personnel does not include the Supplier;

iii. a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;

iv. including and similar words do not imply any limit; and

v. a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them;

d. no term of the Agreement is to be read against a party because the term was first proposed or drafted by that party

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2. SERVICES

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2.1. General: The Supplier must use reasonable efforts to provide the Services:​

a. in accordance with the Agreement and New Zealand law;

b. exercising reasonable care, skill and diligence; and

c. using suitably skilled, experienced and qualified personnel.

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2.2. Non-exclusive: The Supplier’s provision of the Services to the Client is non-exclusive.  Nothing in the Agreement prevents the Supplier from providing the Services to any other person.

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2.3. Availability:

a. Subject to clause 2.3b, the Supplier will use reasonable efforts to ensure the SaaS Service is available during normal business hours in New Zealand/on a 24/7 basis.  However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure.  The Supplier will use reasonable efforts to publish on the Website and/or notify you by email advance details of any unavailability.

b. Through the use of web services and APIs, the SaaS Service interoperates with a range of third party service features.  The Supplier does not make any warranty or representation on the availability of those features.  Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, the Supplier may cease to make available that feature to the Client.  To avoid doubt, if the Supplier exercises its right to cease the availability of a third party feature, the Client is not entitled to any refund, discount or other compensation.

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2.4. Additional Related Services:

a. The Supplier may, from time to time, make available additional services to supplement the SaaS Service.

b. At the request of the Client and subject to the Client paying the applicable Fees, the Supplier may agree to provide to the Client an additional Related Service on the terms of the Agreement.

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3. CLIENT OBLIGATIONS

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3.1. General Use: The Client and its personnel must:

a. use the service solely for:

i. the Client's own internal business purposes; and

ii. lawful purposes (including complying with the Unsolicited Electronic Messages Act 2007) and

b. not resell or make available the Services to any third party, or otherwise commercially exploit the Services.

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3.2. Access conditions: When accessing the SaaS Service, the Client and its personnel must:

a. not impersonate another person or misrepresent authorisation to act on behalf of others or the Supplier;

b. correctly identify the sender of all electronic transmissions;

c. not attempt to undermine the security or integrity of the Underlying Systems;

d. not use, or misuse, the SaaS Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service;

e. not attempt to view, access or copy any material or data other than:

i. that which the Client is authorised to access; and

ii. to the extent necessary for the Client and its personnel to use the SaaS Service in accordance with this Agreement;

f. neither use the SaaS Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and

g. comply with any terms of use on the Website, as updated from time to time by the Supplier.

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3.3. Personnel:  

a. Without limiting clause 3.2, no individual other than a Permitted User may access or use the SaaS Service.

b. The Client may authorise any member of its personnel to be a Permitted User, in which case the Client will provide the Supplier with the Permitted User’s name and other information that the Supplier reasonably requires in relation to the Permitted User.

c. The Client must procure each Permitted User’s compliance with clauses 3.1 and 3.2 and any other reasonable condition notified by the Supplier to the Client.

d. A breach of any term of the Agreement by the Client’s personnel[(including, to avoid doubt, a Permitted User) is deemed to be a breach of the Agreement by the Client.

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3.4. Authorisations:  The Client is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.

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4. DATA

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4.1. Supplier access to Data: 

a. The Client acknowledges that:

i. the Supplier may require access to the Data to exercise its rights and perform its obligations under the Agreement; and

ii. to the extent that this is necessary but subject to clause 7, the Supplier may authorise a member or members of its personnel to access the Data for this purpose.

b. The Client must arrange all consents and approvals that are necessary for the Supplier to access the Data as described in clause 4.1a.

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4.2. Analytical Data:  The Client acknowledges and agrees that:

a. the Supplier may:

i. use Data and information about the Client’s and the Client’s end users’ use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); and

ii. use Analytical Data for the Supplier’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and

iii. supply Analytical Data to third parties;

b. the Supplier’s rights under clause 4.2a above will survive termination of expiry of the Agreement; and

c. title to, and all Intellectual Property Rights in, Analytical Data is and remains the Supplier’s property.

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4.3. Agent: 

a. The Client acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, the Supplier is acting as an agent of the Client for the purposes of the Privacy Act 1993 and any other applicable privacy law.

b. The Client must obtain all necessary consents from the relevant individual to enable the Supplier to collect, use, hold and process that information in accordance with the Agreement.

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4.4. Backups of Data:  Supplier will take standard industry measures to back up all Data stored using the Services.

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4.5. International storage of Data:  The Client agrees that the Supplier may store Data (including any Personal Information) in secure servers in Australia and may access that Data (including any Personal Information) in Australia and New Zealand from time to time. 

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4.6. Indemnity:  The Client indemnifies the Supplier against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by the Supplier’s solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.

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5. FEES

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5.1. Fees:  The Client must pay to the Supplier the Fees, as outlined on the website or as quoted directly to the Client.

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5.2. Invoicing and payment: 

a. The Supplier will provide the Client with valid GST tax invoices on the 15th of the month prior.

b. The Fees exclude GST, which the Client must pay on taxable supplies under the Agreement.

c. The Client must pay the Fees:

i. by the 31st of the month of the date of invoice; and

ii. electronically in cleared funds without any set off or deduction.

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5.3. Overdue amounts:  The Supplier may suspend the Client’s access to the Saas Service at any time if Fees are overdue by 30 days or more.

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5.4. Increases: 

By giving at least 30 days’ notice, the Supplier may increase the Fees at any time.  Fees updated under this clause are deemed to be the Fees listed on the Website, or as quoted directly to the Client.

If the Client does not wish to pay the increased Fees, it may terminate the Agreement on no less than 30 days’ notice, provided the notice is received by the Supplier before the effective date of the Fee increase.  If the Client does not terminate the Agreement in accordance with this clause, it is deemed to have accepted the increased Fees.

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6. INTELLECTUAL PROPERTY

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6.1. Ownership: 

a. Subject to clause 6.1b, title to, and all Intellectual Property Rights in, the Services, the Website, and all Underlying Systems is and remains the property of the Supplier (and its licensors).  The Client must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.

b. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains the property of the Client.  The Client grants the Supplier a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with the Agreement.

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

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6.3 Feedback:  If the Client provides the Supplier with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):

a. all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Supplier; and

b. the Supplier may use or disclose the feedback for any purpose.

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6.4. Third party sites and material:  The Client acknowledges that the SaaS Service may link to third party websites or feeds that are connected or relevant to the SaaS Service.  Any link from the SaaS Service does not imply any Supplier endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators.  To the maximum extent permitted by law, the Supplier excludes all responsibility or liability for those websites or feeds. 

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6.5. Third party Intellectual Property Rights indemnity: 

a. The Supplier indemnifies the Client against any claim or proceeding brought against the Client to the extent that claim or proceeding alleges that the Client’s use of the SaaS Service in accordance with the Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim).  The indemnity is subject to the Client:

i. promptly notifying the Supplier in writing of the IP Claim;

ii. making no admission of liability and not otherwise prejudicing or settling the IP Claim, without the Supplier’s prior written consent; and

iii. giving the Supplier complete authority and information required for the Supplier to conduct and/or settle the negotiations and litigation relating to the IP Claim.  The costs incurred or recovered are for the Supplier’s account.

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b. The indemnity in clause 6.5a does not apply to the extent that an IP Claim arises from or in connection with:

i. the Client’s breach of the Agreement;

ii. use of the SaaS Service in a manner or for a purpose not reasonably contemplated by the Agreement or otherwise not authorised in writing by the Supplier; or

iii. any third party data or any Data.

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c. If at any time an IP Claim is made, or in the Supplier’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, the Supplier may (at the Supplier’s option):

i. obtain for the Client the right to continue using the items which are the subject of the IP Claim; or

ii. modify, re-perform or replace the items which are the subject of the IP Claim so they become non-infringing.

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7. CONFIDENTIALITY

7.1. Security:  Each party must, unless it has the prior written consent of the other party:

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

b. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and

c. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 7.1a and 7.1b.

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7.2. Permitted disclosure:  The obligation of confidentiality in clause 7.1 does not apply to any disclosure or use of Confidential Information:

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

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

c. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;

d. which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or

e. by the Supplier if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.

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8. WARRANTIES

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8.1. Mutual warranties:  Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.

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8.2. No implied warranties:  To the maximum extent permitted by law:

a. the Supplier’s warranties are limited to those set out in the Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to NZD$1,000; and

b. the Supplier makes no representation concerning the quality of the Services and does not promise that the Services will:

i. meet the Client’s requirements or be suitable for a particular purpose, including that the use of the Services will fulfil or meet any statutory role or responsibility of the Client; or 

ii. be secure, free of viruses or other harmful code, uninterrupted or error free.

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8.3. Consumer Guarantees Act:  The Client agrees and represents that it is acquiring the Services, and entering the Agreement, for the purposes of trade.  The parties agree that:

a. to the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Services or the Agreement; and

b. it is fair and reasonable that the parties are bound by this clause 8.3.

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8.4. Limitation of remedies:  Where legislation or rule of law implies into the Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Agreement.  However, the liability of the Supplier for any breach of that condition or warranty is limited, at the Supplier’s option, to:

a. supplying the Services again; and/or

b. paying the costs of having the Services supplied again.

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9. LIABILITY

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9.1. Maximum liability:  The maximum aggregate liability of the Supplier under or in connection with the Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by the Client under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Client from the Start Date to the date of the first event giving rise to liability.  The cap in this clause 9.1 includes the cap set out in clause 8.2a.

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9.2. Unrecoverable loss:  Neither party is liable to the other under or in connection with the Agreement or the Services for any:

a. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or

b. consequential, indirect, incidental or special damage or loss of any kind.

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9.3. Unlimited liability: 

a. Clauses 9.1 and 9.2 do not apply to limit the Supplier’s liability:

i. under the indemnity in clause 6.5a; or

ii.  under or in connection with the Agreement for:

▲ personal injury or death;

▲ fraud or wilful misconduct; or

▲ a breach of clause 7.

b. Clause 9.2 does not apply to limit the Client’s liability:

i. to pay the Fees;

ii. under the indemnity in clause 4.6; or

iii. for those matters stated in clause 9.3aii.

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

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