Terms and Conditions
Your Agreement with Company-X Limited (“we”, “our”, “us”) comprises: (a) the below terms and conditions (“Terms and Conditions”); and (b) the applicable Orders and/or SOWs.
Please read these Terms and Conditions carefully. You agree to be bound by these Terms and Conditions by accepting an Order or SOW.
1.1 Definitions: In these Terms and Conditions and in each Order or SOW, unless the context requires otherwise:
Agreement has the meaning given to that term in clause 1.2.
Commencement Date means the date of the first Order or SOW signed the parties.
Confidential Information means all financial, commercial, customer, operational, marketing and employee data relating to a party’s business which is disclosed to or learnt by the other party under or in connection with the Agreement.
Default Rate means the rate that we can obtain from our bank for unsecured lending, plus 2 per cent per calendar month.
Fees means the amount payable by you for the Products or Services as set out in the applicable Order or SOW.
Force Majeure Event means any cause, event or circumstance which is beyond the reasonable control of a party, and includes fires, strikes, embargoes, explosions, earthquakes, floods, wars, water, labour disputes, government requirements, civil or military authorities, acts of God, inability to secure transportation, acts or omissions of carriers or suppliers, failures of the internet or any telecommunications network, hacker attacks, virus or other malicious software attacks or infections or power failures.
Intellectual Property Rights means all intellectual property rights, including current and future registered and unregistered rights, in respect of copyright, designs, circuit layouts, trade marks, trade secrets, software applications, websites, patents, inventions, discoveries, and all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.
Order means an order form for the Products approved by the parties.
Personal Information has the meaning given to that term in the Privacy Laws.
PPSA means the Personal Property Securities Act 1999.
Privacy Laws means the Privacy Act 1993.
Product means the products to be provided to you as identified in the Order. Schedule 2 of these Terms and Conditions set out additional terms and conditions applicable to the Products.
Rates means our rates as set out in the applicable SOW.
Services means any of the services set out in a SOW and may include:
(a) Professional Services;
(b) System Support;
(c) Managed Services;
(d) Cloud/Hosting Services; and
(e) other services provided by us.
Schedule 1 of these Terms and Conditions sets out additional terms and conditions applicable to the Services.
Site means the physical premises at which the Products are delivered or the Services are provided, as identified in the Order or SOW (as applicable).
Software means any software, library, tool, utility, or other program code, in object (binary) form, including any updates made available to you.
SOW means a statement of work for the Services signed by the parties.
Term means the period set out in clause 2.
1.2 Agreement: The ‘Agreement’ between the parties comprises:
(a) these Terms and Conditions;
(b) the additional terms set out in Schedule 1 (if applicable to the Services);
(c) the additional terms set out in Schedule 2 (if applicable to the Products); and
(d) each Order and/or SOW, which specifies the scope, price and special conditions applicable to the Products or Services.
1.3 Precedence: Unless the parties agree in writing otherwise, if there is any inconsistency or ambiguity between the documents set out in clause 1.2, the order of precedence will be the order as set out in clause 1.2.
1.4 Interpretation: In the Agreement, the following rules of interpretation apply unless the context requires otherwise:
(a) headings are for convenience only and do not affect interpretation;
(b) the singular includes the plural and vice versa, and words importing one gender include the other genders;
(c) a reference to a person includes a body corporate, an unincorporated body or other entity;
(d) no term of the Agreement is to be read against a party because the term was first proposed or drafted by that party;
(e) unless otherwise stated, the reference to $ is a reference to New Zealand dollars and all amounts are exclusive of tax;
(f) a reference to a clause or Schedule is to a clause of or Schedule to these Terms and Conditions;
(g) a document (including these Terms and Conditions) includes any variation or replacement of it;
(h) the words “include” or “including” do not imply any limitation; and
(i) a reference to any Act, regulation, by-law, industry standard or code includes any amendments to such Acts, regulations, by-laws, industry standards and codes.
2.1 Term: The Agreement will commence on the Commencement Date and, subject to clause 12, will continue for an initial period of 1 year (the ‘Term’). The Agreement will automatically renew for successive periods of 1 year each, unless either party notifies the other in writing at least 60 days’ prior to renewal that it does not wish to renew the Agreement.
3. SUPPLY OF PRODUCTS AND SERVICES
3.1 Provision of Products and Services: We will supply the Products and Services to you on the terms set out in these Terms and Conditions and in the relevant Order or SOW.
3.2 Orders and SOWs: If you wish to engage us to perform Services or provide Products, an Order or SOW must be agreed by the parties in writing.
3.3 Non-exclusive: We will provide the Products and Services to you on a non-exclusive basis, and nothing in the Agreement will prevent us from providing Products or Services to a third party.
3.4 Governance: The governance arrangements for a SOW will be as set out in the SOW, and we will report to you in accordance with any reporting requirements set out in the SOW.
3.5 Third parties: We will cooperate with your other contractors, consultants and suppliers as required in relation to the Products and Services. If we consider necessary, we will work directly with your contractors, consultants and suppliers to agree on the scope of obligations and interactions needed.
3.6 Conflict of interest: If we become aware of any conflict of interest, we will promptly disclose this conflict of interest to you. For the purposes of this clause, a ‘conflict of interest’ is a matter which we consider is or is likely to adversely impact our ability to perform our obligations under the Agreement or adversely affect your ability to receive the Products or Services.
3.7 Excused performance: You acknowledge that we will not be required to provide the Products or Services to you during the time and to the extent that our performance is prevented by:
(a) acts or omissions of you or your employees, agents or contractors, including a failure by you to comply with these Terms and Conditions;
(b) our reasonable reliance on your instructions, approvals or other information;
(c) any act or omission of a third party not under our control; or
(d) a Force Majeure Event.
4. CUSTOMER OBLIGATIONS
4.1 Use of Products and Services: Unless expressly stated otherwise in the applicable Order or SOW, you must use the Products and Services:
(a) in accordance with the Agreement; and
(b) solely for your internal business purposes.
4.2 Applicable laws: You must comply with all applicable laws. You are responsible to identify to us any laws which apply to your receipt and use of the Products or Services that are not generally applicable to our business (“Customer Laws”) and you are responsible to ensure that the Products and Services comply with the Customer Laws.
4.3 Customer dependencies: Our ability to provide the Products and Services will be dependent on your performance of any obligations identified in the Order or SOW, including:
(a) the provision of timely, accurate and complete information by you;
(b) access as required to your personnel;
(c) obtaining any necessary approvals, licences, consents and permits needed to enable us to access your Site and any applicable equipment, and to use, access, maintain and modify software and hardware to the extent necessary to provide the Services.
4.4 Site access:
(a) You must provide us with full and unhindered access to the Site where required for the purposes of providing the Products or Services.
(b) When accessing the Site, we will comply with any reasonable safety and security policies and procedures that you have previously notified to us in writing.
(c) Each party must promptly notify the other party on becoming aware of any hazard at the Site (including any possible hazard or risks) or any notifiable incident or notifiable event, and any significant "near miss", emergency or incident involving injury or potential injury to any person or damage to property.
4.5 Health and safety policies: Each party must ensure that it is aware of and complies with its obligations and that all its employees and contractors are aware of and comply with, their health and safety obligations under the Agreement and the Health and Safety at Work Act 2015.
5.1 Changes to Services:
(a) Either party may propose changes to a SOW by submitting a notice to the other party that describes the proposed change.
(b) Within 14 days of the date of the notice, we will provide a proposal to you that sets out:
(i) details of the activities required to implement the change;
(ii) a statement of the estimated cost for the change;
(iii) any other applicable details.
(c) You must notify us if you approve or reject the change based on our proposal. Upon approval, the parties will agree the amendments to the applicable SOW and, once the amendments have been approved in writing, we will proceed to implement the change.
5.2 Changes to Products: We may vary the specifications of the Products from time to time and will provide you with at least 30 days’ notice of any material changes to the Products.
6.1 Payment: You will pay us the Fees for the Products and Services in accordance with this clause 6 and the relevant Order or SOW.
6.2 Amount of Fees: The Fees payable by you will be as set out in the Order and/or SOW. Unless stated otherwise, the Fees will be exclusive of taxes, duties, levies or other costs which may be imposed on handling, transportation, use or sale of the Products or Services.
6.3 Changes in Fees: We may vary our Rates and the Fees at the intervals and by the amount as set out in the Order or SOW.
6.4 Additional fees for Services: Unless otherwise specified in a SOW, we will charge you separately for our reasonable travel, accommodation and out-of-pocket expenses incurred in providing Services to you. We will keep you informed of such expenses and will seek your approval for any expenses exceeding $500.
6.5 Payment terms: We will invoice you for the Fees:
(a) for Products, within 5 days of the date of the Order;
(b) for Services, on a monthly basis or as set out in the SOW.
You must pay us in full on or before 30 days after the date of the invoice (unless otherwise specified in the invoice).
6.6 Overdue amounts: If you fail to pay any Fees that are due and payable by the due date:
(a) We may pursue and attempt to collect any outstanding amounts, and your name, contact information and other relevant information may be referred to an external debt collection agency. You will be liable for any fees or charges incurred as a result of this referral.
(b) We may charge you interest on that amount from (and including) the day on which it falls due to (but excluding) the day on which it is paid in full, calculated at the Default Rate.
(c) We may exercise any of our other rights and remedies in relation to the failure to pay, including the right to repossess any Products we own, or suspend and/or terminate the delivery of the Product or provision of Services. We will not be liable to you for any losses you suffer or incur where we exercise our rights under this clause.
6.7 Disputed Fees: If you, acting in good faith, dispute the amount of any invoice:
(a) you must provide written notice to us within 5 working days of the date of the invoice that identifies the amount disputed and the reason for the dispute;
(b) you may withhold payment of the disputed amount until the dispute is resolved in accordance with clause 15 or the parties agree otherwise; and
(c) you must pay the undisputed amount of an invoice by the date that invoice is due for payment.
6.8 Set off: You may not set off or deduct any amount from any payment payable by you under the Agreement.
7.1 Privacy obligations: Each of us must comply with the applicable Privacy Laws in respect of any Personal Information collected or otherwise obtained under the Agreement. You must notify us if you receive any complaint, notice or communication about your compliance with the Privacy Laws in relation to the Products or Services, or if you become aware of any breach of the Privacy Laws in relation to the Agreement.
7.2 Provision of information: You agree to provide us with information required by us to meet our obligations under the Agreement and you confirm that you have obtained all necessary consents and authorisations relating to such provision of information.
7.3 Data storage: You acknowledge and agree that we may store your data in New Zealand, Australia, Singapore or the United States of America, unless expressly stated otherwise in the applicable Order or SOW.
8.1 Mutual warranties: Each party warrants to the other that:
(a) it has the full capacity and authority to enter into and perform the Agreement;
(b) once executed, the Agreement will constitute legal, valid and binding obligations.
8.2 Service warranties: We warrant that we will carry out the Services to a high quality standard and in accordance with professional standards and, subject to clause 4.2, comply with any applicable laws and regulations relating to the Services.
8.3 Product warranties: Any warranties we provide for the Products will be as set out in Schedule 2.
8.4 No implied warranties: You acknowledge that you have not relied on any warranty or representation made by us in relation to the Products or Services which has not been set out in these Terms and Conditions. To the extent permitted by law and except as expressly provided in this clause 8, we exclude all implied or other warranties, including any warranties of merchantability, satisfactory quality or fitness for a particular purpose. Where we are liable for a breach of a warranty that cannot be excluded, our liability in relation to that breach will be limited to refunding the amount paid by you for the defective Product or Service.
8.5 Consumer Guarantees: The parties agree:
(a) the Products and Services supplied under the Agreement are supplied by us and acquired by you in trade within the meaning of the Fair Trading Act 1986 and the Consumer Guarantees Act 1993;
(b) the Products and Services supplied under the Agreement will be acquired by you solely for your business purposes;
(c) the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the Fair Trading Act 1986 will not apply to the Agreement or any Products or Services supplied under the Agreement;
(d) it is fair and reasonable to exclude the application of those statutes and provisions; and
(e) any right, duty or liability that would arise under a contract of sale under Part 3 of the Contract and Commercial Law Act 2017 and the United Nations Convention on Contracts for the International Sale of Goods under Part 3, Subpart 7 of the Contract and Commercial Law Act 2017 are excluded from application to the purchase and provision of the Products to the fullest extent permitted by law.
9. RISK AND PROPERTY
9.1 Title and risk: You will own the Products and any other tangible deliverables on and from the date that we receive full payment of the applicable Fees for such Products or deliverables. Risk in the Products will pass to you on and from the date of delivery of the Products to your Site (or the location set out in the Order).
9.2 Security interest:
(a) You acknowledge and agree the Agreement constitutes a security agreement for the purposes of the PPSA and a security interest is taken in all Products and any proceeds thereof until all applicable Fees required to be paid have been paid in full.
(b) You agree to sign any further documents and/or supply any further information which we may reasonably require to register a financing statement and/or financing charge statement on the Personal Property Securities Register.
(c) You agree to indemnify us for all expenses incurred in registering a financing statement and/or financing charge statement and/or releasing any Products charged on the PPSR.
(d) The parties hereby contract out of Part 9 of the PPSA so that the rights and obligations contained in sections 114(1)(a), 116, 125, 129, 131, 133 and 134 of that Part do not apply between the parties, and you waive your rights under section 148 to receive any financing statement or financing change statement from us.
10. INTELLECTUAL PROPERTY
10.1 Company-X Intellectual Property: As between us and you, we will own all Intellectual Property Rights:
(a) owned by or licensed to us on or prior to the Commencement Date;
(b) developed by us independently of the Agreement; or
(c) that relates to any Products provided by us,
including any modifications, enhancements and derivative works of such Intellectual Property Rights (the “Company-X Intellectual Property”).
10.2 Customer Intellectual Property: You will own all Intellectual Property Rights:
(a) owned by or licensed to you on or prior to the Commencement Date; or
(b) developed by you independently of the Agreement,
including any modifications, enhancements and derivative works of such Intellectual Property Rights (the “Customer Intellectual Property”).
10.3 Developed Intellectual Property: Subject to full payment of the applicable Fees and unless agreed otherwise in a SOW or Order, the Intellectual Property Rights developed by us as part of the Agreement (the “Developed Intellectual Property”) will vest in you on and from its creation and we will assign all right, title and interest in such Intellectual Property Rights in that Developed Intellectual Property to you (excluding any Company-X Intellectual Property).
10.4 Customer licence: You will grant us a non-exclusive, worldwide, royalty-free licence to use, reproduce and modify the Customer Intellectual Property and the Developed Intellectual Property for the purposes of performing the Services or providing the Products.
10.5 Company-X licence: We will grant you a non-exclusive, worldwide, royalty-free licence to use Company-X Intellectual Property:
(a) during the Term solely to the extent necessary to receive the Services or Products in accordance with the Agreement and for your internal use only; and
(b) after the expiry or termination of the Term, to the extent that Company-X Intellectual Property is incorporated into any Developed Intellectual Property and is required for you to use the Developed Intellectual Property for your internal use.
10.6 Third party: Any third party Intellectual Property Rights will be subject to the applicable third party licence terms.
10.7 No modifications or harm: You agree that you will not at any time:
(a) attempt to copy, alter, modify, replicate, or reverse engineer or enhance the Products or any software used in relation to the Products;
(b) alter, remove, obscure or tamper with any trade mark, logos, patent or copyright notices or any confidentiality or proprietary notice, numbers or other means of identification used on any Product or in relation to the Company-X Intellectual Property;
(c) register or apply to register any intellectual property the same or similar to the Company-X Intellectual Property;
(d) make any of the Company-X Intellectual Property available to any third party (other than your personnel or contractors required to use it for the purposes of receiving the Products or Services); or
(e) do any act or allow any act to be done that would or might invalidate or be inconsistent with our rights or title in and to the Company-X Intellectual Property.
10.8 Know-how: Subject to clause 14, nothing in this clause 10 will prevent us from reusing or redeveloping all general ideas, concepts, know-how or techniques that are generated in the course of our engagement with you.
11. INTELLECTUAL PROPERTY INFRINGEMENT
11.1 IP claims: Subject to clauses 11.2 and 11.3, we will indemnify you against:
(a) any costs or damages awarded against you as a result of any claim brought against you by an unaffiliated third party alleging that use or possession of the Products or Services by you infringes that third party’s Intellectual Property Rights (an “IP Claim”);
(b) any costs or damages agreed by us in settlement of an IP Claim; and
(c) any reasonable legal expenses incurred by you in relation to the IP Claim (provided that you have used reasonable endeavours to mitigate those expenses),
except where the IP Claim has arisen as a result of any modifications to the Products or Services made by you or any third party without our consent, or the use of the Services or Products in a manner that is not expressly authorised under the Agreement (including the use in combination with other Intellectual Property Rights).
11.2 Third party claims: You agree that you will:
(a) immediately notify us in writing of any known or suspected IP Claim;
(b) not make any admission of liability in relation to, or agree to any settlement or compromise of an IP Claim without our prior written consent; and
(c) at our expense, provide us all assistance we require in connection with negotiations and litigation to settle an IP Claim.
11.3 Exclusions: We will not be responsible for any IP Claims resulting from content, design or other information provided by you.
11.4 Liability cap: Unless otherwise specified in Schedule 2 or the applicable SOW or Order, clause 13.2 does not apply in relation to our liability under this clause 11 and our total aggregate liability in relation to an IP Claim, whether in contract or tort or otherwise, will be limited to US$10,000,000.
12.1 Termination for cause: Each party may terminate the Agreement or any Order or SOW by giving written notice to the other with effect from the date specified in the notice if any of the following circumstances occur:
(a) a party commits a material breach of the Agreement or the applicable Order or SOW and, if it is capable of remedy, does not remedy that breach within 30 days of receiving written notice from the other party (or such later date as agreed to by the parties); or
(b) a party is subject to an insolvency, liquidation, receivership or bankruptcy proceedings.
12.2 Termination for convenience: Either party may terminate the Agreement or any Order or SOW without cause at any time on giving the other party at least 90 days’ prior written notice.
12.3 Suspension: We may suspend our provision of any Products or Services to you if you are in breach of the Agreement or if we otherwise consider necessary with regard to the scope of the Services or Products.
12.4 Accrued rights: The termination of the Agreement for any reason will not affect any rights which accrued before termination or which otherwise relate to or may arise at any future time from any breach prior to termination.
12.5 Consequences of termination: On termination:
(a) you must promptly pay any amounts due and owing by you;
(b) each party must return (or destroy) the other party’s Confidential Information.
12.6 Disengagement services: You may request disengagement services to be provided by us on termination of the Agreement or any applicable SOW. Following the request, we will provide a proposal to you that sets out a description of the disengagement services and a statement of our estimated costs to provide such services. If approved by you, we will proceed to prepare a SOW for the services and, once approved in writing, we will implement the SOW.
13. INDEMNITY AND LIABILITY
13.1 Indemnity: You will indemnify us and our employees, agents and contractors in respect of all claims, costs, expenses, losses, liabilities, damages, proceedings and legal fees of whatsoever kind made against, suffered or incurred arising from any of your acts or omissions, your negligence, your breach of the Agreement, or arising out of or incidental to your use of the Services or Products.
13.2 Liability: To the extent permitted by law, our total aggregate liability under each Order or SOW, whether in contract or tort or otherwise, shall be limited to the lesser of:
(a) the Fees actually paid by you to us under the applicable Order or SOW in the six month period prior to the date on which the claim arose; or
13.3 Consequential loss: To the extent permitted by law, under no circumstances will we be liable for any indirect, incidental, special, punitive or consequential damages, including any loss of revenue or profits, loss of anticipated savings, loss of goodwill, downtime costs, business interruption, loss of data, or data use.
13.4 Claim: We will not be liable to you unless we receive notice in writing of any claim within 60 days of the occurrence of the event giving rise to the claim.
13.5 Mitigation: You must take reasonable steps to mitigate any claim or loss sustained or incurred as a result of any breach or default of us or our contractors or agents in connection with the Agreement.
14.1 Obligation: During the Term and after termination or expiration of the Agreement, each party must:
(a) keep the other party’s Confidential Information confidential;
(b) not disclose the other party’s Confidential Information to any other person, other than with that party’s prior written consent or in accordance with clauses 14.2 to 14.3;
(c) not use, disclose or reproduce the Confidential Information for any purpose other than to exercise its rights or perform its obligations under the Agreement; and
(d) promptly notify the other party of any potential, suspected or actual unauthorised use or disclosure of the Confidential Information.
14.2 Permitted disclosure: During the Term, each party may use or disclose the other party’s Confidential Information to any of its subcontractors, employees, consultants or professional advisers (“Recipient”) to the extent that it is necessary for the purposes of the Agreement. Each party will procure that each Recipient of our Confidential Information is made aware of and complies with the obligations of confidentiality under the Agreement as if the Recipient was a party to the Agreement. Each party will remain responsible for any breach of this clause 14 by its Recipient.
14.3 Exclusions: The obligations contained in clauses 14.1 to 14.2 inclusive will not apply to any Confidential Information which:
(a) is in or becomes part of the public domain otherwise than through breach of the Agreement by a party or any Recipient;
(b) can be shown to the reasonable satisfaction of that party to have been known to the other party prior to it being disclosed;
(c) subsequently comes lawfully into the possession of the party from a third party; or
(d) is required to be disclosed by law or any court of competent jurisdiction, any governmental, official or regulatory authority or any binding judgment, order or requirement of any other competent authority, in which case the party will provide prior written notice to the other party of the required disclosure and will comply with any directions provided in relation to such disclosure.
14.4 Breach: Without prejudice to any other rights or remedies, the parties acknowledge and agree that damages may not be an adequate remedy for any breach of this clause 14 and the remedies of injunction, specific performance and other equitable relief may be appropriate for any threatened or actual breach of any such provision.
15.1 Dispute notification: The parties will promptly notify each other in writing (“Dispute Notice”) of differences in opinion and disputes arising out of or in connection with the Agreement and strive to promptly resolve these through good faith negotiations between the parties. Any Dispute Notice must fully describe the nature of, and factual background to, the relevant dispute.
15.2 Referral to arbitration: If a dispute notified under clause 15.1 is not resolved within 10 working days of the Dispute Notice being given (or any longer period agreed by the parties), either party may refer the dispute to be resolved by arbitration in accordance with clause 15.3.
15.3 Arbitration: If a party refers the dispute to arbitration:
(a) the arbitration will take place in Hamilton, New Zealand;
(b) the arbitration will consist of one arbitrator and the party that refers the matter to arbitration will identify the name of the person nominated as the arbitrator or, failing agreement within 10 working days of the date of the notice referring the dispute to arbitration, the arbitrator will be chosen by us;
(c) the arbitrator will conduct the arbitration in accordance with, and subject to the Arbitration Act 1996 and the arbitration protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc.
15.4 Right to seek relief: All disputes must be dealt with in accordance with this clause 15 and no party is entitled to bring legal proceedings in respect of a dispute in any court unless:
(a) the parties agree otherwise in writing; or
(b) the legal proceedings comprise an application for any urgent equitable or other urgent remedy.
15.5 Continuing obligations: Notwithstanding the existence of a dispute, each party must continue to perform its obligations under the Agreement.
16.1 Non-solicitation: For the Term and for a period of 12 months after the end of the Term, you must not directly or indirectly solicit or entice any of our employees or contractors. This clause does not prevent you from employing or engaging a person that independently responds to a genuine public advertisement placed in good faith and without prior discussion with that individual.
17.1 Notices to be in writing: Any notice, document, request, demand or other communication to be given for the purposes of the Agreement must be in writing and may be served personally or sent by registered mail or by email to the addresses specified in the SOW or Order (or such other address as that party may notify the other party in writing from time to time).
17.2 Representatives: Each party will nominate in writing to the other party a representative to act as the principal point of contact during the Term. The representative may be updated from time to time by written notice.
17.3 Creditworthiness: You consent to us and any credit rating agency making enquiries of and obtaining any information about your financial standing or creditworthiness.
17.4 Subcontracting: You acknowledge that the Services may be provided by our subcontractors. We will remain responsible for the performance of the Services.
17.5 Announcements: You acknowledge that we may, unless otherwise notified by you in writing, refer to you as our customer (using your name and logo) in our marketing and our proposals to third parties, including award entries, articles and on our website.
17.6 Assignment: You may not assign, novate, subcontract, transfer or otherwise dispose of any of your rights and obligations under the Agreement without our prior written consent (at our sole discretion). A change of control will constitute an assignment or novation requiring consent under this clause.
17.7 Variations: We may update these Terms and Conditions and our applicable policies from time to time. We will provide you with written notice of any material change to these Terms and Conditions and, if you do not agree to the change, you may terminate the Agreement with 30 days’ prior written notice to us.
17.8 Waiver: Our failure to enforce any provision of the Agreement will not waive our right thereafter to enforce any such provision.
17.9 Relationship of parties: Nothing in the Agreement will evidence, be construed or deemed to constitute partnership or a joint venture between the parties. No party will have the authority to act for, or to incur any obligation on behalf of the other party.
17.10 Independent contractor: We agree and acknowledge that we are an independent contractor and are responsible for our own liability for tax or any levies under any applicable legislation.
17.11 Survival: Clauses 1, 9, 10 and 12 to 17 will remain in full force and effect and survive the termination of the Agreement.
17.12 Entire agreement: The Agreement contains the full and complete agreement of the parties with respect to the subject matter and, except as otherwise provided, supersedes all prior negotiations, commitments, writings, agreements and understandings between the parties.
17.13 Contracts privity: Where any provision of the Agreement is to be for the benefit of any person other than a party to the Agreement, such provision is intended to confer a benefit on such person, and will be enforceable in accordance with the terms of the privity provisions of the Contract and Commercial Law Act 2017.
17.14 Governing law: The Agreement will be governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the courts of New Zealand.
Schedule 1: Additional Terms (Services)
1. Professional Services
1.1 We will provide you with the Services (including any deliverables) identified in the applicable SOW.
1.2 If our employees are named in the SOW, we will use reasonable endeavours to ensure that such employees are available to provide the Services. We will notify you if a named employee is no longer available and we will provide a suitable replacement employee.
1.3 Unless expressly stated otherwise in the SOW, any timeframes set out in the SOW are intended for planning and estimating purposes only and time is not deemed to be of the essence.
1.4 Deliverables must be accepted by you when they meet the acceptance criteria set out in the SOW. You must notify us if you do not accept any deliverables provided by us within 5 working days of receipt. If we are not notified within this timeframe, deliverables will be deemed to have been accepted.
1.5 Our working hours are 9am to 5pm, Monday to Friday, excluding public holidays in the location where the Services are being provided. If you require us to work outside these working hours, overtime rates may apply (as set out in the SOW). We will use reasonable endeavours to confirm with you in writing prior to any overtime work.
1.6 We warrant for a 30 day period from delivery that each deliverable will materially comply with any specification expressly set out in the Agreement. For a deliverable that is software, you acknowledge that you will be responsible to plan and execute the user acceptance testing to ensure that the software is ready to be used in a production setting (“UAT”). You will prepare a UAT plan setting out all testing activities and provide a copy to us. At the conclusion of the testing activities set out in the UAT plan, you acknowledge that the software will be accepted by you provided there are no business-critical defects or issues (P1 defects) present in the software and no further warranty period will apply following completion of UAT.
2. System Support
2.1 We will provide the ‘System Support’ services detailed in the applicable SOW, including during the hours specified in the Agreement and at the locations specified.
2.2 The Services may include the following:
(a) Service Desk:
(i) customer contact (logging, tracking and updates of all incidents, events and problems);
(ii) user support (triaging, communication and resolution and closure of support tickets);
(iii) receiving and responding to questions, suggestions or feedback on what an application is producing;
(iv) provision of 0800 Service Desk number for customers.
(b) Level 2 Support:
(i) assistance to users investigating their results and data;
(ii) investigation and resolution of defects;
(iii) investigation of questions or feedback on what an application is producing.
For the Level 2 Support services, we will perform up to 2 hours per defect or data investigation in order to resolve issues without delay. For issues requiring greater effort than 2 hours, we will notify you of the additional costs and seek your prior approval.
(c) Application updates, change and release:
(i) installation of maintenance updates, excluding major releases which will be managed through a separate SOW.
2.3 We will provide the System Support services in accordance with our current published ‘Service Level Statement’ available on our website.
3. Managed Services
3.1 The ‘Managed Services’ may include:
(a) application support services, including corrective maintenance activities, defect management and activities to enable application enhancement;
(b) operational maintenance, such as database, server maintenance, updates, patching and data protection;
(c) support, maintenance and monitoring of an intrusion detection system; and
(d) other agreed additional services.
3.2 We will provide the Managed Services detailed in the Agreement for the specified applications and hardware. You will be responsible for all other components of your information technology and operating environment that do not form part of the Managed Services in the SOW.
3.3 If any transition in activities are required, each party will carry out the transition in activities as set out in the SOW. You agree that you will provide us with assistance and information as required by us to enable us to carry out the transition in activities and the Managed Services. If either party becomes aware of any matter during the transition in activities that may materially impact the Managed Services, each party agrees to notify and work with the other to resolve the matter.
3.4 Any service levels to apply to the Managed Services will be as set out in the applicable SOW.
4. Cloud/Hosting Services
4.1 For the purposes of this paragraph 4, ‘Hosting Services’ may include:
(a) the infrastructure required to host the applications identified in the applicable SOW;
(b) infrastructure monitoring, support and maintenance;
(c) storage space as specified in the applicable SOW.
4.2 We will provide Hosting Services to you in accordance with the applicable SOW.
4.3 We may make changes to our Hosting Services from time to time, including by changing or discontinuing features of the Hosting Services. We will provide you with reasonable prior notice of any material changes.
4.4 If Hosting Services are provided on a renewal or subscription basis, you acknowledge that our continued provision of the Hosting Services is conditional on your regular periodic payment of the Fees.
4.5 We will use reasonable endeavours to provide you with consistent and reliable Hosting Services. You acknowledge that we rely on third party suppliers and therefore we cannot guarantee that there will be no interruptions to our Hosting Services. You must comply with the end user terms of the third party supplier as they are relevant to your use of the Hosting Services as notified by us from time to time.
4.6 We will use reasonable endeavours to ensure high availability but we are not liable for any loss caused by disruption to the Hosting Services.
We will deliver the Hosting Services to you in the way we deem to be most appropriate. We may, at our sole discretion and at any time, choose or change third party suppliers and/or any other suppliers.
4.7 If we move any of the Hosting Services that we provide you to a new third party supplier host at your request, this service will incur a one off fee and any time spent by us in relation to such a move will be charged at our standard hourly rates for such work. Any other changes that you request to the Hosting Services may incur a one off fee and we may vary the regular periodic Fee payable by you as set out in the SOW.
4.8 We reserve the right to remove or change any Hosting Services we may have offered from time to time and either replace them with new Hosting Services or move you on to the most similar or suitable Hosting Service we offer to our customers. If we do remove or change a Hosting Service that affects you, we will provide you with reasonable prior notice.
4.9 We reserve the right to perform maintenance and upgrades at any time and from time to time.
4.10 We will endeavour to provide you with reasonable notice of maintenance and upgrades by posting details on the website:
(a) at least 12 hours in advance in the case of scheduled maintenance or upgrading that will result in an outage of more than 60 minutes; or
(b) as soon as practicable after becoming aware of the need for unscheduled maintenance that will result in an outage of more than 60 minutes.
4.11 We archive data on a regular basis for the purpose of disaster recovery and, in the event of data corruption or equipment failure, will restore your data from the backup we have retained. You acknowledge that the data we have retained may be out of date.
4.12 To the full extent permitted by law, paragraph 4.11 above sets out our entire obligation with respect to disaster recovery and loss of data and we exclude all liability to you arising from any loss of, or corruption of data.
4.13 The recovery of any of your backup data may incur a fee.
4.14 You acknowledge that we exercise no control whatsoever over the content, information or security of the infrastructure on which your data may be hosted.
4.15 You must not use the Hosting Services:
(a) to engage in fraud, fraudulent or illegal behaviour;
(b) to, or attempt to, circumvent any security measures or otherwise gain unauthorised access to or interfere with any third party’s online resources or systems including by any form of hacking;
(c) to distribute, view or create any material that:
(i) is or may be pornographic, defamatory, offensive, obscene, illegal or unlawful; or
(ii) intentionally infringes any third party’s Intellectual Property Rights;
(d) in a way that intentionally, recklessly or negligently poses a security risk to the Hosting Services;
(e) to distribute unsolicited emails to third parties including bulk unsolicited emails;
(f) in a way that intentionally infringes any third party’s Intellectual Property Rights;
(g) in a way that intentionally, recklessly or negligently disrupts or misuses the hardware, bandwidth access, storage space or other resources of us; or
(h) send unsolicited email from another network that appears to have been sent using the Hosting Services or from infrastructure we use to provide the Hosting Services.
4.16 You will take due care to ensure that your data that we host is free of any computer virus or malicious code and will not, in any way, corrupt the data or systems of any person.
4.17 If we cease to provide Hosting Services for non-payment of an invoice, all files, information and mail under your account will be preserved for 60 days from the date the payment is due. If the payment is not received after 60 days, all files, information and mail under your account may be deleted. There may be additional charges to pay if you wish to use the Hosting Services again.
4.18 If the SOW for the Hosting Services is terminated for any reason, you agree that we have the right to delete all data, files or other information that is stored in your account.
4.19 We reserve the right to suspend the Hosting Services at any time, and for any reason, without notice if we have reason to suspect that your account has been hacked or corrupted or there is any other situation which in our opinion requires the immediate suspension of the Hosting Services. You may be notified as to the reason if the suspension is to last longer than 24 hours.
4.20 You must permit us (or our nominated auditor) to audit your records and premises at any time during the Term and for 3 years following the end of the Term, on at least 5 days’ written notice, for the purpose of confirming your compliance with the Agreement.
Schedule 2: Additional Terms (Products)
1. Additional Terms and Conditions for Products
1.1 The date for our delivery of Products will be as set out in the Order or as otherwise notified by us. We will notify you if there are any delays or changes to the delivery date but we will not be responsible for any costs or expenses that you may incur as a result of any delay that is caused by an act or omission of you or any event outside of our reasonable control (which may include a delay by our Suppliers).
1.2 You agree that no part of the Products is being acquired for, shipped, transferred or re-exported, directly or indirectly, to any other country. Unless expressly stated otherwise in the applicable Order, you may not resell the Products and you are not authorised to sell or export the Products outside New Zealand.
2.1 For the purposes of this paragraph 2:
Hardware means the RealWear HMT-1 or HMT-1Z1 head-mounted tablet (including associated accessories but excluding Software).
Documentation means the related media, printed materials, online and electronic documentation provided by RealWear, including copies.
RealWear Product means the Software, Hardware and Documentation.
2.2 Our supply of the Hardware to you will be subject to you entering into a direct licence to use the Software and Documentation with RealWear, Inc (or a related company).
2.3 We may vary the Fee for the Hardware with at least 30 days’ prior notice to you in writing.
2.4 The Products will materially meet or exceed the published specifications. Improvements or other changes may be made to the Products at any time, including after the Order but before delivery.
2.5 You may not cancel your Order, other than as set out in the Terms and Conditions.
2.6 You may use the RealWear Products in New Zealand and Australia only.
2.7 Any products or services that we provide that are additional to the Hardware, Software and Documentation are provided by us and we are responsible for such products or services.
2.8 Clause 11 of the Terms and Conditions is deleted and replaced as follows:
(a) RealWear indemnification. This is your exclusive remedy for any IP Claim. Nothing in the Agreement or elsewhere will require us to provide any greater indemnity.
(b) Indemnification. If a third party asserts against you a claim alleging that a RealWear Product infringes or misappropriates any United States, Australia or New Zealand patent, copyright, trade secret or any other intellectual property right belonging to that third party (an “IP Claim”), and you give us prompt written notice of the details of the IP Claim, then we will use reasonable endeavours to ensure that RealWear, at its cost, defends against the IP Claim and pays all damages that a court finally awards. If RealWear does not either: a) obtain a license to continue to use the Product; or b) replace the Product with a non-infringing equivalent (that materially meets the specifications for the Product), then we will refund to you the amount you paid for the Product (and you may, in such circumstances, immediately terminate the Agreement).
(c) Limitations. Paragraph (b) will not apply and we will have no obligation for any IP Claim that arises from any:
(i) modification to the Product not made or approved by us or by RealWear;
(ii) combination of the Product with any other hardware, software, or other product not provided by us or by RealWear; or
(iii) failure to install any Software update made available by RealWear.
(d) Control of Defence: You agree:
(i) you will immediately notify us in writing of any known or suspected IP Claim;
(ii) you will not make any admission of liability in relation to, or agree to any settlement or compromise of an IP Claim without our prior written consent; and
(iii) you will provide us and RealWear all assistance we require in connection with negotiations and litigation to settle an IP Claim.