Terms of business

APPLICATION OF TERMS

1.1

These Terms of Business apply to:

our supply of Hardware, Software and/or Services to you; and

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:

you agree to these Terms and the Agreement; and

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 authorised 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 authorised to download, install, access or use the Software, and you must immediately stop doing so.

CHANGES

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 28th March 2022

INTERPRETATION

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.

Fees means:

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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 10.6; or

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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

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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.

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 licence 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.

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:

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the parties enter into a Statement of Work;

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you accept a quote or proposal issued by us in accordance with clause 4.2;

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we accept an Order placed by you in accordance with clause 4.6; or

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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 [insert URL], 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.

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:

the quote or proposal is valid for acceptance for a maximum of 30 days from the date we provide it to you; and

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 15, the Statements of Work, Accepted Quotes/Proposals and Accepted Orders cannot be varied or cancelled except with the written agreement of both parties.

SUPPLY OF HARDWARE

5.1

Unless otherwise stated in the Statement of Work, Accepted Quote/Proposal or Accepted Order:

all Hardware will be sold and delivered ex-works our premises; and

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

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 of loss in Hardware passes to you when the Hardware is Delivered.

5.4

Title in Hardware passes to you when full payment for the Hardware is received by us.

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:

during each Subscription Term for which you have paid the applicable Fees; and

on the terms and conditions of the Agreement.

PROVISION OF SERVICES (INCLUDING THE SAAS SERVICE)

7.1

We must provide the Services:

in accordance with the Agreement and New Zealand law;

exercising reasonable care, skill and diligence; and

using suitably skilled, experienced and qualified personnel;

using reasonable efforts to provide the Services in accordance with:

the Service Levels; and

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:

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

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 13.3, 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.

YOUR OBLIGATIONS

8.1

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.

8.2

You and your personnel must:

use the Software in accordance with the Agreement solely for:

your own internal business purposes; and

lawful purposes ; and

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

8.3

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-licence, make available the Software to any third party or otherwise deal in the Software except:

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as expressly provided for in the Agreement; or

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to the extent expressly permitted by law;

ensure the Software is protected at all times from misuse, damage, destruction or any form of unauthorised use, copying or disclosure;

iii

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 which may suggest that any person may have unauthorised 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

vii

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; and

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.

8.4

When accessing and using the SaaS Service, you and your personnel must:

not impersonate another person or misrepresent authorisation to act on behalf of others or us;

correctly identify the sender of all electronic transmissions;

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

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;

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

that which you are authorised to access; and

to the extent necessary for you to use the SaaS Service in accordance with the Agreement; and

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.

8.5

A breach of any of the Agreement by your personnel is deemed to be a breach of the Agreement by you.

8.6

You are responsible for procuring all licences, authorisations 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.

DATA

9.1

This clause 9 applies where you are subscribed to the SaaS Service.

9.2

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 licence 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.

9.3

You acknowledge that:

we may require access to the Data to exercise our rights and perform our obligations under the Agreement; and

to the extent that this is necessary but subject to clause 12, we may authorise a member or members of our personnel to access the Data for this purpose.

9.4

You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 9.3.

9.5

You acknowledge and agree that:

we may:

use Data and information about your and your end users’ use of the SaaS Service to generate anonymised and aggregated statistical and analytical data (Analytical Data); and

use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights.

our rights under clause 9.5aii above will survive termination or expiry of the Agreement; and

title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.

9.6

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.

9.7

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.

9.8

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.

9.9

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.

FEES

10.1

You must pay us the Fees.

10.2

We will invoice you:

for On-premises Licences and SaaS Software subscriptions with a monthly Subscription Term, monthly in advance;

for On-premises Licences and SaaS Software subscriptions with an annual Subscription Term, annually in advance;

for Hardware, following Delivery of the Hardware, unless otherwise stated in the Statement of Work, Accepted Quote/Proposal or Accepted Order;

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

prior to the due date for payment.

10.3

The Fees exclude Sales Tax, which you must pay where appliable, subject to us providing you with a valid tax invoice.

10.4

You must pay the Fees:

by the 20^th of the month following the date of invoice or as otherwise stated in the Statement of Work, Accepted Quote/Proposal or Accepted Order; and

electronically in cleared funds without any set off or deduction.

10.5

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.

10.6

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 15.1aii. If you do not terminate the On-premises Licence or SaaS Software subscription in accordance with clause 15.1aii, you are deemed to have accepted the increased Fees.

FEES

11.1

Subject to clause 9.2, 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.

11.2

The following Intellectual Property (including any modification, enhancement or derivative work of that Intellectual Property) remains the property of the current owner:

Intellectual Property that existed prior to the date of a Statement of Work, Accepted Quote/Proposal or Accepted Order; and

Intellectual Property that was developed independently of a Statement of Work, Accepted Quote/Proposal or Accepted Order.

11.3

Subject to clauses 9.2 and 11.2, 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.

11.4

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.

11.5

If you provide us with ideas, comments or suggestions relating to the Hardware, Software, Services or Underlying Systems (together feedback):

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

we may use or disclose the feedback for any purpose.

11.6

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.

CONFIDENTIALITY

12.1

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

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

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

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 12.1a and 12.1b.

12.2

The obligation of confidentiality in clause 12.1 does not apply to any disclosure or use of Confidential Information:

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

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

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

which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or

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 12.

CONFIDENTIALITY

13.1

Each party warrants that it has full power and authority to enter into, and perform its obligations under, the Agreement.

13.2

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.

13.3

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.

13.4

To the maximum extent permitted by law:

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

we make no representation concerning the quality of the Hardware, Software or Services and do not promise that the Hardware, Software or Services will:

meet your requirements or be suitable for a particular purpose, including that the use of the Hardware, Software or Services will fulfil or meet any statutory role or responsibility you may have; or

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

13.5

You agree and represent that you are acquiring the Hardware, Software and Services, and entering the Agreement, for the purpose of trade. The parties agree that:

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

it is fair and reasonable that the parties are bound by this clause 13.5.

13.6

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:

for Hardware:

repairing or resupplying the Hardware so that it meets or satisfies that condition or warranty; or

subject to you returning the Hardware to us in the same condition as supplied to you, refunding the Fees paid for the Hardware;

for Software:

remedying the Software so that it meets or satisfies that condition or warranty; or

terminating your On-premises Licence or SaaS Software subscription and refunding any Fees paid in advance for the period after termination; and

for Services (other than the SaaS Service):

supplying the Service again; and/or

ii paying the costs of having the Service supplied again.

LIABILITY

14.1

Our maximum aggregate liability, whether in contract, tort (including negligence), breach of statutory duty or otherwise:

relating to any Hardware must not exceed an amount equal to the Fees paid by you for the Hardware;

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;

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

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 14.1d includes the caps set out in clauses 14.1a to c.

14.2

Neither party is liable to the other under or in connection with the Agreement or the Hardware, Software or Services for any:

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

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

14.3

Clauses 14.1 and 14.2 do not apply to limit our liability under or in connection with the Agreement for:

personal injury or death;

fraud or wilful misconduct; or

a breach of clause 12.

14.4

Clause 14.2 does not apply to limit your liability:

to pay the Fees;

under the indemnity in clause 9.9; or

for those matters stated in clause 14.3a to 14.3c.

14.5

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.

14.6

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.

TERM, TERMINATION AND SUSPENSION

15.1

Unless the Agreement is terminated under this clause 15:

unless otherwise specified in a Statement of Work, Accepted Quote/Proposal or Accepted Order, your right to access and use the Software:

starts on the date that:

▲

the Statement of Work is signed by both parties;

▲

you accept a quote or proposal issued by us for the provision of the Software in accordance with clause 4.2; or

▲

we accept an Order placed by you for the provision of the Software in accordance with clause 4.6,

as applicable; and

continues until a party gives at least 30 days’ notice that your On-premises Licence or SaaS Software subscription (as applicable) will terminate on the expiry of the then-current Subscription Term; and

each Statement of Work, Accepted Quote/Proposal or Accepted Order for Services other than the SaaS Service starts on the start date set out in the Statement of Work, Accepted Quote/Proposal or Accepted Order or, if there is none, on the date we commence providing the Services.

15.2

Either party may, by notice to the other party, immediately terminate the Agreement and your right to access and use the Software if the other party:

breaches any material provision of the Agreement and the breach is not:

remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or

capable of being remedied; or

becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.

15.3

Each Statement of Work, Accepted Quote/Proposal or Accepted Order for Services (other than the SaaS Service) will terminate:

on termination of the Agreement under clause 15.2;

on the end date (if any) specified in the Statement of Work, Accepted Quote/Proposal or Accepted Order or if there is none, when the Services under the Statement of Work, Accepted Quote/Proposal or Accepted Order are complete; or

in accordance with any additional rights to terminate set out in the Statement of Work, Accepted Quote/Proposal or Accepted Order.

15.4

Where a party has a right to terminate the Agreement under clause 15.2 it may, at its discretion and to the extent practicable, instead of terminating the Agreement in full, terminate:

an On-premises Licence or SaaS Software subscription; or

an affected Statement of Work, Accepted Quote/Proposal or Accepted Order.

15.5

Termination of the Agreement, an On-premises Licence or SaaS Software subscription or a Statement of Work, Accepted Quote/Proposal or Accepted Order does not affect either party’s rights and obligations that accrued before that termination.

15.6

On termination, you must pay all Fees for the Hardware, Software and Services provided prior to that termination.

15.7

No compensation is payable by us to you as a result of termination of the Agreement for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.

15.8

Clauses which, by their nature, are intended to survive termination of the Agreement, including clauses 9.9, 11, 12, 14 and 15.5 to 15.10, continue in force.

15.9

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 15.10, 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.

15.10

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 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

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 15.10a to the extent that you have previously requested deletion of the Data.

15.11

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:

undermined, or attempted to undermine, the security or integrity of the SaaS Service or any Underlying Systems;

used, or attempted to use, the SaaS Service:

for improper purposes; or

as applicable; and

in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service;

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

otherwise materially breached these the Agreement.

GENERAL

16.1

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:

immediately notifies the other party and provides full information about the Force Majeure;

uses best endeavours to overcome the Force Majeure; and

continues to perform its obligations as far as practicable.

16.2

No person other than you and us has any right to a benefit under, or to enforce, the Agreement.

16.3

For a party to waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.

16.4

Subject to clause 9.6, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.

16.5

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 support@countculture.com.

16.6

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.

16.7

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.

16.8

Subject to clauses 2.1 and 10.6, any variation to the Agreement must be in writing and signed by both parties.

16.9

The Agreement sets out everything agreed by the parties relating to the Hardware, Software and Services, and supersede and cancel 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 16.9.

16.10

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.

Terms of business

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