Terms of business
1. APPLICATION OF TERMS
1.1. These Terms of Business apply to:
- a. our supply of Hardware, Software, and/or Services to you; and
- b. your use of the Software and Services.
1.2. By entering into a Statement of Work, accepting a quote or proposal we have issued to you, placing an Order for hardware, software, and/or services with us, or downloading, installing, accessing and/or using the Software:
- a. you agree to these Terms and the Agreement; and
- b. where you enter into a Statement of Work, accept a quote or proposal we have issued to you, place an Order for hardware, software and/or services with us, or download, install, access, and/or use the Software on behalf of another person (e.g. a company), you confirm that you are authorized to, and do in fact, agree to these Terms and the Agreement on that person’s behalf and that, by agreeing to these Terms and the Agreement on that person’s behalf, that person is bound by these Terms and the Agreement.
1.3. If you do not agree to these Terms and the Agreement, you are not authorized to download, install, access or use the Software, and you must immediately stop doing so.
2.1. We may change these Terms at any time by notifying you of the change by email or by posting a notice on the Website. Unless stated otherwise, any change takes effect from the date set out in the notice. You are responsible for ensuring you are familiar with the latest Terms. By entering into a Statement of Work, accepting a quote or proposal we have issued to you, placing an Order for hardware, software and/or services with us from the date on which the Terms are changed, you agree to be bound by the changed Terms.
2.2. These Terms were last updated on 25th May 2023.
In the Agreement:
Accepted Order means an Order placed by you and accepted by us in accordance with clause 4.6.
Accepted Quote/Proposal means a quote or proposal issued by us and accepted by you in accordance with clause 4.2.
Agreement means these Terms, the Statements of Work, the Accepted Quotes/Proposals, and the Accepted Orders.
Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Service. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the Software. Your Confidential Information includes the Data.
Data means all data, content, and information (including personal information) owned, held, used, or created by you or on your behalf that is stored using, or inputted into, the SaaS Service.
Delivery has the meaning given in clause 5.1b. Deliver and Delivered have consistent meanings.
- The applicable fees set out the Statement of Work, Accepted Quote/Proposal, or Accepted Order, as may be updated from time to time in accordance with clause 11.6; or
- For Services (other than SaaS Services) provided under an Accepted Order where no Fees are specified, Fees calculated on a time and materials basis at our standard hourly rates at the time we carry out the Services.
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
- An event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
- A lack of funds for any reason.
Hardware means the hardware specified in the Statement of Work, Accepted Quote/Proposal, or Accepted Order.
including and similar words do not imply any limit.
Initial Rental Term means, for any Rental Hardware, the rental or lease term specified in the applicable Statement of Work, Accepted Quote/Proposal, or Accepted Order.
Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.
Intellectual Property has a consistent meaning, and includes any enhancement, modification, or derivative work of the Intellectual Property.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
On-premises Licence means a license to install the Software in computing infrastructure owned by you or under your control, including third-party cloud infrastructure where you hold the contractual relationship with the third-party provider.
Order means an order or request (including email and verbal requests) from you for us to supply hardware, software and/or services that are not included in a Statement of Work, quote, or proposal.
a party includes that party’s permitted assigns.
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.
personal information means information about an identifiable, living person.
personnel includes officers, employees, contractors, and agents, but a reference to your personnel does not include us.
Rental Hardware means Hardware described in a Statement of Work, Accepted Quote/Proposal, or Accepted Order as being provided on a rental or lease basis.
Rental Extension Term has the meaning given in clause 16.1bii.
SaaS Service means the provision of Software by us on a software-as-a-service basis.
Sales Tax means sales tax, goods and services tax, value added tax, or equivalent tax payable under any applicable law.
Services means SaaS Service and all other services specified in the Statement of Work, Accepted Quote/Proposal, or Accepted Order.
Service Levels means the service levels (if any) set out at [insert URL] or specified in the Statement of Work, Accepted Quote/Proposal, or Accepted Order.
Software means the software specified in the Statement of Work, Accepted Quote/Proposal, or Accepted Order, including any update, enhancement, modification, or derivative work.
Start Date means the first date on which:
- The parties enter into a Statement of Work;
- You accept a quote or proposal issued by us in accordance with clause 4.2;
- We accept an Order placed by you in accordance with clause 4.6; or
- You download, install, access, and/or use the Software.
Statement of Work means a document entitled Statement of Work that is stated to be subject to these Terms and signed by both you and us.
Subscription Term means the subscription term for an On-premises Licence or the SaaS Service specified in the Statement of Work, Accepted Quote/Proposal, or Accepted Order.
Terms means these terms titled Countculture Terms of Business.
Underlying Systems means the Software, IT solutions, systems, and networks (including software and hardware) used to provide the SaaS Service, including any third-party solutions, systems, and networks.
We, us or our means Reveal Operations Limited, company number 8298340.
Website means the internet site at www.countculture.com, or such other site notified to you by us.
Year means a 12-month period starting on the Start Date or the anniversary of that date.
You or your means you or, if clause 1.2b applies, both you and the other person on whose behalf you are acting.
Words in the singular include the plural and vice versa.
A reference to 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.
Where any conflict exists between the documents comprising the Agreement, those documents have the following descending order of precedence:
- These Terms;
- Statements of Work;
- Accepted Quotes/Proposals; and
- Accepted Orders.
4. QUOTES, PROPOSALS AND ORDERS
4.1. We may from time to time (including in response to a request from you) provide you with a quote or proposal for hardware, software and/or services.
4.2. Neither party is bound by any quote or proposal that we have provided to you until you have accepted it in writing.
4.3. Unless otherwise stated in a quote or proposal:
- a. the quote or proposal is valid for acceptance for a maximum of 30 days from the date we provide it to you; and
- b. we can withdraw or amend a quote or proposal at any time prior to you accepting it in writing.
4.4. Once you accept a quote or proposal, it becomes a binding contract for us to provide the relevant Hardware, Software and/or Services in accordance with the Agreement and the relevant quote or proposal, and for you to pay the Fees for the Hardware, Software and/or Services.
4.5. You may from time to time place Orders with us for hardware, software and/or services.
4.6. We have the right to accept or reject each Order on reasonable grounds. An Order is not binding unless it is accepted by us. Our acceptance occurs on the when we notify you by email that we accept your Order, or commence supplying the relevant Hardware, Software and/or Services. If we do not accept or reject an Order within 7 days of receipt, we are deemed to have rejected that Order.
4.7. Once we accept an Order, it becomes a binding contract for us to provide the relevant Hardware, Software and/or Services in accordance with the Agreement and the relevant Order, and for you to pay the Fees for the Hardware, Software and/or Services.
4.8. No terms of yours are incorporated into the Agreement, whether set out in an Order or otherwise.
4.9. Except as set out in clause 16, the Statements of Work, Accepted Quotes/Proposals and Accepted Orders cannot be varied or cancelled except with the written agreement of both parties.
5. SUPPLY OF HARDWARE
5.1. Unless otherwise stated in the Statement of Work, Accepted Quote/Proposal or Accepted Order:
- a. all Hardware (other than Rental Hardware) will be sold and all Hardware will be delivered ex-works our premises; and
- b. delivery will take place when the Hardware is made available for collection by a common carrier or other person nominated by you at our premises (Delivery); and
- c. you are responsible for arranging and paying all costs of transport and insurance.
5.2. We will use reasonable endeavours to Deliver Hardware on or before the delivery date requested in the Statement of Work, Accepted Quote/Proposal or Accepted Order, but will not be liable for any loss, liability or damage resulting from any delay, nor will you be relieved of any obligation to accept or pay for Hardware by reason of that delay.
5.3. Risk in Hardware passes to you when the Hardware is Delivered.
5.4. Title in Hardware (other than Rental Hardware) passes to you when full payment for that Hardware is received by us.
5.5. The additional terms set out in clause 8 apply to Rental Hardware.
6. SOFTWARE LICENCE
If you have purchased a subscription to an On-premises Licence under a Statement of Work, Accepted Quote/Proposal or Accepted Order, we grant to you, and you accept, a non-exclusive and non-transferable licence to use the Software:
- a. during each Subscription Term for which you have paid the applicable Fees; and
- b. on the terms and conditions of the Agreement.
7. PROVISION OF SERVICES (INCLUDING THE SAAS SERVICE)
7.1. We must 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;
- d. using reasonable efforts to provide the Services in accordance with:
- i. the Service Levels; and
- ii. any timetable in a Statement of Work, Accepted Quote/Proposal or Accepted Order (however, you acknowledge that any such timetable is indicative only).
7.2. Our provision of the Services to you is non-exclusive. Nothing in the Agreement prevents us from providing the Services to any other person.
7.3. The Services:
- a. exclude all products, services, functions, tasks and responsibilities that are specified as out of scope in the Statement of Work, Accepted Quote/Proposal or Accepted Order; and
- b. do not include any product, service, function, task or responsibility that is not explicitly included in the Statement of Work, Accepted Quote/Proposal or Accepted Order.
7.4. Subject to clause 14.3, where you have subscribed to the SaaS Service, we must use reasonable efforts to ensure the SaaS Service is available 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. We must use reasonable efforts to inform you in advance of any unavailability, by way of notification through the SaaS Service and/or by email.
8. RENTAL HARDWARE
8.1. This clause 8 applies to Rental Hardware.
8.2. During the Rental Term, we will provide you with the Rental Hardware for use by you solely in connection with the Software and Services (Approved Use).
8.3. Legal and beneficial ownership of the Rental Hardware remains with us at all times.
8.4. Risk in the Rental Hardware passes to you in accordance with clause 5.3.
8.5. Risk in the Rental Hardware passes back to us when the Rental Hardware has been returned to our premises and we have accepted delivery.
8.6. You must:
- take proper care of the Rental Hardware, including installing, deinstalling, and maintaining the Rental Hardware:
- in accordance with the technical manuals and documentation provided us (Documentation);
- using suitably skilled, experienced, and qualified technicians; and
- with due care, skill, and diligence and in accordance with accepted industry practice;
- not relocate the Rental Hardware to a premises other than the premises specified in the applicable Statement of Work, Accepted Quote/Proposal, or Accepted Order, except with our prior written approval;
- not resell or make available the Rental Hardware to any third party, or otherwise commercially exploit the Rental Hardware;
- not service or repair the Rental Hardware;
- not reverse-engineer, tamper with, disassemble, decompile, or modify the Rental Hardware or any software running on the Rental Hardware;
- use, and ensure that all persons who use the Rental Hardware use, the Rental Hardware solely for the Approved Use and in the manner it is designed to be used;
- immediately notify us of any loss, theft, or damage to the Rental Hardware. You are liable for any loss, theft, or damage to the Rental Hardware, however caused;
- not remove, deface, or obscure, and not allow any other person to remove, deface, or obscure, any marks of identification or ownership or registration on the Rental Hardware;
- during the Rental Term, and until the Rental Hardware is returned to us:
- effect and maintain standard commercial insurance against standard risks, including fully insuring all Rental Hardware for full replacement value, with our interest in the Rental Hardware noted on the applicable policy;
- provide us with evidence of your compliance with clause 8.6ii on request by us;
- not allow anything to be done that might prejudice the insurance.
8.7. If, during the Rental Term, Rental Hardware requires servicing or repair or a defect in material, design, or workmanship becomes apparent, we will, subject to clause 8.8, service, repair, or replace the Rental Hardware. A replacement may be either a new or refurbished product.
8.8. We have no obligation to service, repair, or replace Rental Hardware where the serial number has been removed or defaced, or where the Rental Hardware has become defective due to:
- accident, misuse, or abuse;
- damage caused by dirt, water, liquid, impact, or other external causes;
- servicing or repair of the Rental Hardware by anyone other than us;
- modification of the Rental Hardware by anyone other than us;
- faults in equipment or software not supplied by us; or
- use of the Rental Hardware in a manner:
- other than in accordance with the Documentation;
- contrary to law or these Terms; or
- not within our reasonable contemplation.
8.9. If you seek inspection, servicing, repair, and/or replacement of Rental Hardware where there is no legitimate claim under clause 8.7, then we reserve the right to charge you for the inspection, servicing, repair, and/or replacement.
8.10. Where we wish to carry out any inspection, servicing, or repair of Rental Hardware on-site, you must allow us (or our agent) reasonable and safe access to the premises where the Rental Hardware is located for these purposes.
8.11. Where Rental Hardware needs to be removed for servicing, repair, or replacement, you must deinstall the Rental Hardware and return it to us and reinstall the serviced, repaired, or replacement Rental Hardware once we deliver it to you.
8.12. Without limiting our rights at law, we (or our agent) are permitted to enter onto the premises at which the Rental Hardware is installed at any reasonable time to:
- inspect the Rental Hardware; and/or
- where you are in breach of these Terms (including failing to pay any payment when due), to deinstall and repossess the Rental Hardware,
And you must provide us (or our agent) reasonable and safe access to the premises where the Rental Hardware is located for these purposes.
8.13. On termination of the rental in accordance with clause 16.1bii or 16.4b or expiry of termination of the Agreement, you must return the Rental Hardware to us in the same order and condition as at the date that we Delivered the Rental Hardware to you in accordance with clause 5.1b (fair wear and tear excepted).
8.14. You agree that the supply of the Rental Hardware creates a security interest over the Rental Hardware, and all of your present and future rights in relation to the Rental Hardware and any proceeds, in favor of us that may be registered on the personal property securities register under the Personal Properties Securities Act 1999 (PPSA).
8.15. You must provide all information and do all things including the execution of documents as we may require for the purpose of ensuring that we have a perfected first ranking security interest in the Rental Hardware and any proceeds under the PPSA.
8.16. You agree that sections 114(1)(a), 133 and 134 of the PPSA do not apply to the enforcement by us of any security interest created or provided for by these Terms to which Part 9 of the PPSA applies, and you waive any right you may have under sections 116, 120(2), 121, 125, 127, 129, and 131 of the PPSA on such enforcement.
8.17. You waive any right you may have to receive from us a copy of any financing statement, financing change statement, or verification statement that is registered, issued, or received at any time in relation to the Rental Hardware.
8.18. Until the Rental Hardware is returned to us, you must:
- use all reasonable efforts to protect our rights in the Rental Hardware, including making it clear to others that we (and not you) own the Rental Hardware;
- not allow the Rental Hardware to become subject to any security, encumbrance, or lien of any kind; and
- not allow the Rental Hardware to be used or installed in a way that results in it becoming a fixture to any land, including real property.
9. YOUR OBLIGATIONS
9.1. In addition to your other obligations under the Agreement, you must:
- perform the other functions, tasks, and responsibilities, and provide the other personnel, materials, or other resources set out in the Statement of Work, Accepted Quote/Proposal, or Accepted Order in a timely manner; and
- promptly make decisions (including approvals) and provide us with all information reasonably required to provide the Services.
9.2. You and your personnel must:
- use the Software in accordance with the Agreement solely for:
- your own internal business purposes; and
- lawful purposes;
- not resell or make available the Software to any third party, or otherwise commercially exploit the Software.
9.3. Where you use the Software under an On-premises Licence:
- You must:
- not copy (except for making copies for your own back-up or archival purposes), reproduce, translate, decompile, reverse-engineer, resell, modify, vary, sub-license, make available the Software to any third party, or otherwise deal in the Software except:
- as expressly provided for in the Agreement; or
- to the extent expressly permitted by law;
- ensure the Software is protected at all times from misuse, damage, destruction, or any form of unauthorized use, copying, or disclosure;
- maintain all proprietary notices on the Software;
- not transfer, assign, or otherwise deal with or grant a security interest in the Software;
- notify us in writing immediately after you become aware of any circumstance that may suggest that any person may have unauthorized knowledge, possession, or use of the Software;
- provide backup and disaster recovery services for the Software and any infrastructure on which the Software is dependent in accordance with accepted industry practice; and
- provide log extracts, external system information, system or component restarts, or other actions as may be reasonably required for us to provide the Services.
- You acknowledge that some Software issues may be due to issues of the computing environment in which the Software is operating.
- Except to the extent we are responsible for maintenance and upgrade of that computing environment under a Statement of Work, Accepted Quote/Proposal, or Accepted Order, you accept responsibility for the maintenance and upgrade of that computing environment.
9.4. When accessing and using the SaaS Service, you and your personnel must:
- a. not impersonate another person or misrepresent authorization to act on behalf of others or us;
- 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 you are authorized to access; and
- ii. to the extent necessary for you to use the SaaS Service in accordance with the 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.
9.5. A breach of any of the Agreement by your personnel is deemed to be a breach of the Agreement by you.
9.6. You are responsible for procuring all licenses, authorizations, and consents required for you and your personnel to use the Software, including to use, store and input Data into, and process and distribute Data through, the SaaS Service.
10.1. This clause 10 applies where you are subscribed to the SaaS Service.
10.2. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable license to use, store, copy, modify, make available and communicate the Data for the purposes of the exercise of our rights and performance of our obligations in accordance with the Agreement.
10.3. You acknowledge that:
- a. we may require access to the Data to exercise our rights and perform our obligations under the Agreement; and
- b. to the extent that this is necessary but subject to clause 13, we may authorize a member or members of our personnel to access the Data for this purpose.
10.4. You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 10.3.
10.5. You acknowledge and agree that:
- a. we may:
- i. use Data and information about your and your end users’ use of the SaaS Service to generate anonymized and aggregated statistical and analytical data (Analytical Data); and
- ii. use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights.
- b. our rights under clause 10.5aii above will survive termination or expiry of the Agreement; and
- c. title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
10.6. We warrant that, to the extent the SaaS Service processes video footage that contains personal information, that personal information is held for transitory processing purposes only, and is deleted following that processing and not stored.
10.7. You acknowledge and agree that to the extent Data contains personal information (e.g. user names and email addresses), in collecting, holding and processing that information through the SaaS Service, we are acting as your agent and/or as data processor and/or as service provider for the purposes of the New Zealand Privacy Act 2020 and any other applicable privacy or data protection laws. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with the Agreement.
10.8. You agree that we may store Data (including the limited personal information that is held at Data) in secure servers in Australia and may access that Data (including that personal information) in New Zealand from time to time.
10.9. You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our 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.
11.1. You must pay us the Fees.
11.2. We will invoice you:
- a. for On-premises Licences and SaaS Software subscriptions with a monthly Subscription Term, monthly in advance;
- b. for On-premises Licences and SaaS Software subscriptions with an annual Subscription Term, annually in advance;
- c. for Hardware (other than Rental Hardware), following Delivery of the Hardware, unless otherwise stated in the Statement of Work, Accepted Quote/Proposal or Accepted Order;
- d. for Rental Hardware, monthly in advance from the date of Delivery of the Hardware, unless otherwise stated in the Statement of Work, Accepted Quote/Proposal or Accepted Order;
- e. for Services other than the SaaS Service, monthly in arrears, unless otherwise stated in the Statement of Work, Accepted Quote/Proposal or Accepted Order; and
- f. prior to the due date for payment.
11.3. The Fees exclude Sales Tax, which you must pay where applicable, subject to us providing you with a valid tax invoice.
11.4. You must pay the Fees:
- a. by the 20th of the month following the date of the invoice or as otherwise stated in the Statement of Work, Accepted Quote/Proposal or Accepted Order; and
- b. electronically in cleared funds without any set off or deduction.
11.5. We may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or, if our primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
11.6. We may increase the Fees for On-premises Licences and SaaS Software with effect from the start of a Subscription Term by giving at least 30 days’ notice. If you do not wish to pay the increased Fees, you may terminate the On-premises Licence or SaaS Software subscription in accordance with clause 16.1aii. If you do not terminate the On-premises Licence or SaaS Software subscription in accordance with clause 16.1aii, you are deemed to have accepted the increased Fees.
12. INTELLECTUAL PROPERTY
12.1. Subject to clause 10.2, title to, and all Intellectual Property Rights in, the Software and all Underlying Systems is and remains our property (and our licensors’ property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
12.2. The following Intellectual Property (including any modification, enhancement or derivative work of that Intellectual Property) remains the property of the current owner:
- a. Intellectual Property that existed prior to the date of a Statement of Work, Accepted Quote/Proposal or Accepted Order; and<
- b. Intellectual Property that was developed independently of a Statement of Work, Accepted Quote/Proposal or Accepted Order.
12.3. Subject to clauses 10.2 and 12.2, and unless otherwise agreed by us in writing (including in a Statement of Work, Accepted Quote/Proposal), all new Intellectual Property created or developed by us in providing the Services is owned by us.
12.4. To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
12.5.: If you provide us with ideas, comments or suggestions relating to the Hardware, Software, 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 us; and
- b. we may use or disclose the feedback for any purpose.
12.6. You acknowledge that the Software may link to third party websites or feeds that are connected or relevant to the Software. Any link from the Software does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
13.1. 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 unauthorized 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, clauses 13.1a and 13.1b.
13.2. The obligation of confidentiality in clause 13.1 does not apply to any disclosure or use of Confidential Information:
- a. for the purpose of performing a party’s obligations, 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 from a third party without restriction and without breach of any obligation of confidentiality; or
- e. by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 13.
14.1. Each party warrants that it has full power and authority to enter into, and perform its obligations under, the Agreement.
14.2. We do not give any warranty to you relating to the Hardware, other than the warranties (if any) for which we cannot exclude our liability. We will use commercially reasonable efforts to transfer to you the benefit of any warranties provided by the relevant Hardware manufacturer.
14.3. Through the use of web services and APIs, the Software interoperates with a range of third-party service features. We do 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, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third-party feature, you are not entitled to any refund, discount or other compensation.
14.4. To the maximum extent permitted by law:
- a. our 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 of merchantability or fitness for purpose) are expressly excluded; and
- b. we make no representation concerning the quality of the Hardware, Software or Services and do not promise that the Hardware, Software or Services will:
- i. meet your requirements or be suitable for a particular purpose, including that the use of the Hardware, Software or Services will fulfill or meet any statutory role or responsibility you may have; or
- ii. be secure, free of viruses or other harmful code, uninterrupted or error-free.
14.5. You agree and represent that you are acquiring the Hardware (other than Rental Hardware), renting the Rental Hardware, and acquiring Software and Services, and entering the Agreement, for the purpose of trade. The parties agree that:
- a. to the maximum extent permissible by law, no consumer protection laws apply to the supply of the Hardware, Software or Services or the Agreement; and
- b. it is fair and reasonable that the parties are bound by this clause 14.5.
14.6. 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, our liability for any breach of that condition or warranty is limited, at our option, to:
- a. for Hardware:
- i. repairing or resupplying the Hardware so that it meets or satisfies that condition or warranty; or
- ii. that is not Rental Hardware and subject to you returning the Hardware to us in the same condition as supplied to you (fair wear and tear excepted), refunding the Fees paid for the Hardware; or
- iii. that is Rental Hardware and subject to you returning the Hardware to us in the same condition as supplied to you (fair wear and tear excepted), terminating the rental and refunding any Fees paid in advance for the period after termination;
- b. for Software:
- i. remedying the Software so that it meets or satisfies that condition or warranty; or
- ii. terminating your On-premises Licence or SaaS Software subscription and refunding any Fees paid in advance for the period after termination;
- c. for Services (other than the SaaS Service):
- i. supplying the Service again; and/or
- ii. paying the costs of having the Service supplied again.
15.1. Our maximum aggregate liability, whether in contract, tort (including negligence), breach of statutory duty or otherwise:
- a. relating to any Hardware must not exceed an amount equal to the Fees paid by you for the Hardware;
- b. relating to the Software must not exceed an amount equal to the Fees paid by you relating to the Software in the previous Year (which in the first Year is deemed to be the total Fees paid by you from the Start Date to the date of the first event giving rise to liability;
- c. relating to any Services other than the SaaS Service must not exceed an amount equal the Fees paid by you for the Services (other than the SaaS Service) under the Statement of Work, Accepted Quote/Proposal or Accepted Order giving rise to liability; and
- d. under or in connection with the Agreement 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 you under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by you from the Start Date to the date of the first event giving rise to liability). The cap in this clause 15.1d includes the caps set out in clauses 15.1a to c.
15.2. Neither party is liable to the other under or in connection with the Agreement or the Hardware, Software or 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.
15.3. Clauses 15.1 and 15.2 do not apply to limit our liability under or in connection with the Agreement for:
- a. personal injury or death;
- b. fraud or wilful misconduct; or
- c. a breach of clause 13.
15.4. Clause 15.2 does not apply to limit your liability:
- a. to pay the Fees;
- b. under the indemnity in clause 10.9; or
- c. for those matters stated in clause 15.3a to 15.3c.
15.5. 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.
15.6. 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 or the Hardware, Software or Services.
16. TERM, TERMINATION AND SUSPENSION
16.1. Unless the Agreement is terminated under this clause 16:
- a. Your right to access and use the Software:
- i. Starts on specific events and continues until a 30 days’ notice is given for the termination of your On-premises Licence or SaaS Software subscription.
- ii. The rental of Rental Hardware starts upon delivery and extends for an Initial Rental Term, continuing into Rental Extension Terms unless terminated.
- iii. Statements of Work, Accepted Quote/Proposal, or Accepted Orders for Services, other than the SaaS Service, begin as stated or from the date when Services commence.
- b. Either party may terminate the Agreement and Software access immediately if:
- i. A material provision breach is not remedied within 10 days or is incapable of being remedied.
- ii. The other party faces insolvency, administration, or ceases business operations.
- c. Statements of Work, Accepted Quote/Proposal, or Accepted Orders for Services (other than the SaaS Service) will terminate under specific conditions.
16.4. If a party has the right to terminate the Agreement under clause 16.2, they can selectively terminate:
- a. An On-premises Licence or SaaS Software subscription
- b. The rental of Rental Hardware
- c. An affected Statement of Work, Accepted Quote/Proposal, or Accepted Order
16.5. The termination of the Agreement, On-premises Licence, SaaS Software subscription, rental of Rental Hardware, or a Statement of Work, Accepted Quote/Proposal or Accepted Order does not affect accrued rights and obligations.
16.6. On termination, payment for all Hardware, Software, and Services provided before the termination is required.
16.7. If we terminate the Agreement or the rental of Rental Hardware under clause 16.2 or 16.4 before the Initial Rental Term expires, immediate payment for the Rental Hardware is necessary for the period between termination and the original Initial Rental Term's end date.
16.8. No compensation will be paid, and no refund of any previously paid Fees is applicable upon termination of the Agreement, regardless of the cause.
16.9. Clauses that are inherently intended to continue even after the Agreement is terminated, such as clauses 10.9, 12, 13, 15, and 16.6 to 16.11, will remain in effect.
16.10. Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of the Agreement but subject to clause 16.11, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
16.11. If a SaaS Service subscription is terminated or, at the time the Agreement is terminated, where you are using the SaaS Service, at any time prior to 14 days after the date of termination, you may request:
- a. a copy of any Data stored using the SaaS Service, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software; and/or
- b. deletion of the Data stored using the SaaS Service, in which case we must use reasonable efforts to promptly delete that Data.
To avoid doubt, we are not required to comply with clause 16.11a to the extent that you have previously requested deletion of the Data.
16.12. Where you are using the SaaS Service, without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the SaaS Service and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have:
- a. undermined, or attempted to undermine, the security or integrity of the SaaS Service or any Underlying Systems;
- b. used, or attempted to use, the SaaS Service:
- for improper purposes; or
- in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service;
- c. transmitted, inputted, or stored any Data that breaches or may breach the Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect, or misleading; or
- d. otherwise materially breached these the Agreement.
17.1. Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:
- a. Immediately notifies the other party and provides full information about the Force Majeure;
- b. Uses best endeavors to overcome the Force Majeure; and
- c. Continues to perform its obligations as far as practicable.
17.2. No person other than you and us has any right to a benefit under, or to enforce, the Agreement.
17.3. For a party to waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
17.4. Subject to clause 10.6, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust, or partnership) exists under the Agreement.
17.5. If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with the Agreement by emailing email@example.com.
17.6. The Agreement, and any dispute relating to the Agreement or Hardware, Software, or Services, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with the Agreement or the Hardware, Software, or Services.
17.7. If any part or provision of the Agreement is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability, or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from the Agreement. The remainder of the Agreement will be binding on you.
17.8. Subject to clauses 2.1 and 11.6, any variation to the Agreement must be in writing and signed by both parties.
17.9. The Agreement sets out everything agreed by the parties relating to the Hardware, Software, and Services, and supersedes and cancels anything discussed, exchanged, or agreed prior to the Start Date. The parties have not relied on any representation, warranty, or agreement relating to the Service that is not expressly set out in the Agreement, and no such representation, warranty, or agreement has any effect from the Start Date. The parties agree that it is fair and reasonable that the parties are bound by this clause 17.9.
17.10. You may not assign, novate, subcontract, or transfer any right or obligation under the Agreement without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under the Agreement despite any approved assignment, subcontracting, or transfer.