Terms of use

INTRODUCTION

1       Application of terms

1.1 These Terms apply to the Client’s use of the Services and/or APIs (as those terms are defined below) and to anyone using the Services and/or APIs under the Client’s account.  By signing a Subscription Form, clicking I agree (or equivalent) to these Terms, or accessing and using the Services and/or APIs, the Client agrees to these Terms.

1.2 If the Client does not agree to these Terms, the Client is not authorised to access and use the Services or APIs, and must immediately stop doing so.

2      Changes

2.1 The Supplier may change these Terms with 40 days’ notice by notifying the Client 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.  The Client is responsible for ensuring that it is familiar with the latest Terms.  If the Client does not agree to the updated Terms, it may terminate the Agreement on no less than 30 days’ notice, provided the notice is received by the Supplier before the effective date of the Terms.  By continuing to access and use (and allowing its personnel to continue to access and use) the Service from the date on which the Terms are changed, the Client agrees to be bound by the changed Terms.

2.2 These Terms were last updated on the 24th of December, 2022.

3      Interpretation

3.1 Definitions

In these Terms and the other documents forming part of the Agreement, the following terms have the stated meaning:

Access Credentials

any token, user name, password or other access credentials that the Supplier provides to the Client to allow it to access and use the APIs and/or the Services.

Agreement

the Subscription Form (if applicable), these Terms and the Data Processing Addendum (if applicable).

API

a secure application programme interface developed from time to time by the Supplier to enable the transfer of data for the provision of the Services.

API Data

data obtained or provided by the Client by use of the APIs.

API Policies

the Supplier’s policies regarding use of the API set out at https://tatou.app/getting-started-with-our-api (as updated from time to time), or as otherwise notified to the Client from time to time.

Confidential Information

the terms of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement. The Supplier’s Confidential Information includes Intellectual Property owned by the Supplier (or its licensors), including the Tātou Software. The Client’s Confidential Information includes the Data, and Intellectual Property owned by the Client (or its licensors).

Client

the client named on the Subscription Form.

Data

all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Client that is stored using, or inputted into, the Services.

Data Processing Addendum

the data processing addendum set out at www.tatou.app/dpa.

End Date

the end date set out in the Subscription Form, or if no end date is specified or if the Client has not signed a Subscription From, the first anniversary of the Start Date.

Fees

the applicable fees as agreed otherwise in the Subscription Form, as those Fees are updated from time to time in accordance with clause 7.4.

Force Majeure

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.

GDPR

the European Union General Data Protection Regulation 2016/679.

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.

Invited User

a person who has been invited by a Client to use the Services in accordance with clause 5.3.

Objectionable

includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

Payment Terms

the payment terms as set out on the Subscription Form or otherwise agreed in writing between the Client and the Supplier.

Personal Information

information about an identifiable, living person, and includes personal data, personally identifiable information and equivalent information under applicable privacy and data protection laws.

Related Services

any related service described in the Subscription Form or as otherwise agreed in writing between the parties, and any further services that the Supplier agrees to provide to the Client under the Agreement.

SaaS Service

the SaaS service having the service features set out on the Subscription Form, and the core functionality for those features described on the Website, and on the Subscription Form (if applicable).

Sales Tax

sales tax or equivalent tax payable under any applicable law.

Services

the SaaS Service and any Related Service.

Special Conditions

the terms set out in a section of the Subscription Form (if applicable) titled “Special Conditions” (if any).

Start Date

the start date set out in the Subscription Form (if applicable), or the date that you set up an account or first access or use the SaaS Service, whichever is the earlier.

Subscription Form

a document entitled “Subscription Form” that references these Terms and is signed by the Supplier and the Client.

Tātou Software

the software owned by the Supplier (and its licensors) that is used to provide the SaaS Service.

Terms

these Tātou Terms of Use

Underlying Systems

the Tātou Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.

Website

the internet site at www.tatou.app, or such other site notified to the Client by the Supplier.

Year

a 12 month period starting on the Start Date or the anniversary of that date.

3.2        Interpretation

In the Agreement:

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

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

c. a reference to:

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

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

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

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

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

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

e. if there is any conflict between the documents comprising the Agreement, those documents have the following descending order of precedence:

i.    the Data Processing Addendum, if applicable;

ii.    the Special Conditions (if any);

iii.    these Terms; and

iv.    the Subscription Form, excluding the Special Conditions.

4            Services

4.1        General:

The Supplier must use reasonable efforts to provide the Services:

a. in accordance with the Agreement and applicable law;

b. exercising reasonable care, skill and diligence; and

c. using suitably skilled, experienced and qualified personnel.

4.2        Non-Exclusive:

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

4.3        Availability:

The Supplier will use reasonable efforts to ensure the SaaS Service is available 24/7.  However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure.  The Supplier will use reasonable efforts to publish on the Website and/or notify the Client by email advance details of any unavailability.

4.4        Additional related services:

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

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

5        Client Obligations

5.1        General Use:

The Client, its personnel and the Invited Users must:

a. use the Services, APIs and API Data in accordance with the Agreement solely for:

i.     the Client’s and the Invited Users’ own internal business purposes; and

ii.     lawful purposes; and

b. not, and not permit any other person to:

i.      copy, translate, modify, or make derivative works of the APIs or API Data;

ii.     reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organization for the whole or any part of the APIs or API Data;

iii.     resell or make available the Services, APIs or API Data to any third party; or

iv.     otherwise commercially exploit the Services, APIs or API Data.

5.2        Access conditions:

When accessing the SaaS Service and/or the APIs, the Client, its personnel and the Invited Users must, and if applicable, the Client must procure that any other person who accesses or uses the APIs on its behalf must:

a. comply with the API call limits specified in the API Policies or as otherwise notified to the Client from time to time, and not attempt to circumvent those limits;

b. not use or access the APIs in order to monitor the availability, performance, or functionality of any of the APIs or Underlying Systems or for any similar benchmarking purposes;

c. not make any modifications to any API Data;

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

e. correctly identify the sender of all electronic transmissions;

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

g. not use, or misuse, the SaaS Service and/or the APIs 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 and/or the APIs;

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

i.     that which the Client, its personnel and the Invited Users are authorised to access; and

ii.     to the extent necessary for the Client, its personnel and the Invited Users to use the SaaS Service and/or the APIs in accordance with the Agreement; and

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

j. comply with any terms of use and API Policies, as updated from time to time by the Supplier.

A breach of any of these Terms by the Client’s personnel, an Invited User or any other person who accesses and uses the APIs on the Client’s or an Invited Users’ behalf is deemed to be a breach of these Terms by the Client.

5.3       Invited Users:

The Client may invite any person to be an Invited User by creating user accounts for those Invited Users with separate login details.  The Client must procure each Invited User’s compliance with these Terms and any other reasonable condition notified by the Supplier to the Client.  The Client is responsible for any Invited User accounts it creates, and must delete the Invited User’s account if the Client no longer wishes the Invited User to have access (e.g., where the Invited User ceases to be the Client’s customer).

5.4         Security:

The Client must:

a. keep its Access Credentials secure;

b ensure that its personnel and its Invited Users, keep their respective Access Credentials secure; and:

c. not permit any person other than its personnel to use the Access Credentials, and ensure that its personnel and Invited Users do not permit any other person to use their Access Credentials, including not disclosing or providing them to any other person; and

d. immediately notify the Supplier if it becomes aware of any disclosure or unauthorized use of its or its personnel’s or Invited Users’ Access Credentials, by sending an email to hello@tatou.app.

5.5        Authorisations:

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

5.6        Feedback:

The Client is encouraged to provide detailed feedback. The feedback refers to all aspects of the software; performance, usability and the impact it has had on processes and business goals.  The Client will be prepared to answer questions or supply further information to clarify feedback if requested.

6         Data

6.1        Supplier access to data:

a. the Client acknowledges that:

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

ii.     to the extent that this is necessary but subject to clause 9, the Supplier may authorise a member or members of its personnel to access the Data for this purpose.

b. the Client must arrange all consents and approvals that are necessary for the Supplier to access the Data as described in clause 6.1a.

6.2        Analytical data:

The Client acknowledges and agrees that:

a. the Supplier may:

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

ii.     use Analytical Data as part of and within the SaaS Service, for the Supplier’s internal research and product development purposes and to conduct and publish statistical analysis and identify and publicise trends and insights; and

iii.     publish reports and other public statements based on Analytical Data and supply Analytical Data to third parties;

b. the Supplier’s rights under clauses 6.2a.ii and iii above will survive termination or expiry of the Agreement; and

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

To avoid doubt, the Supplier will not sell, trade or grant access to third party companies to any Data sets or Analytical Data sets, even if anonymised, that would reasonably be expected to allow identification of the Client, its personnel or Invited Users.

6.3        Agent/Data Processor:

a. the Client acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, the Supplier is acting as an agent of the Client and/or as a data processor for the purposes of applicable privacy law.  If the GDPR or the equivalent laws of the United Kingdom apply, the additional terms in the Data Processing Addendum attached to the Agreement also form part of the Agreement.

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

6.4        Backups of data:

While the Supplier will take standard industry measures to back up all Data stored using the Services, the Client agrees to keep a separate back-up copy of all Data uploaded by it onto the SaaS Service.

6.5        International storage of data:

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

6.6        Indemnity:

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

a. promptly notify the Client in writing of the Claim;

b. make no admission of liability and not otherwise prejudice or settle the Claim, without the Client’s prior written consent; and

c. give the Client complete authority and information required for the Client to conduct and/or settle the negotiations and litigation relating to the Claim.  The costs incurred or recovered are for the Client’s account.

7         Fees

7.1        Fees:

The Client must pay to the Supplier the Fees.

7.2        Invoicing and payment:

a. the Fees exclude Sales Tax, which the Client must pay on taxable supplies under the Agreement.

b.  the Supplier will provide the Client with valid Sales Tax invoices as set out in the Payment Terms, or if there are none, monthly in arrears for the Fees due in the previous month.  The Client must pay the Fees:

i.     in accordance with the Payment Terms, or if there are none, by the 20th of the month following the date of invoice; and

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

c. If the Client elects to pay the Fees by credit / debit card, the Client must also pay the card processing fee charged by the Supplier’s third party payment gateway provider, which fee will be displayed on the payment gateway at the time of payment.

d. If the Supplier is unable to collect the Fees from the Client’s credit / debit card for any reason, including where the Client’s card has expired or there are insufficient funds, the Client remains responsible for any uncollected amounts and the Supplier may suspend or cancel the Client’s access to the Services without giving notice to the Client.

7.3        Overdue Amounts:

The Supplier 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 the Supplier’s primary trading bank as at the due date (or, if the Supplier’s 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.

7.4        Increases:

a. by giving at least 40 days’ notice, the Supplier may increase the Fees once each Year (but not the first Year) by the percentage change in the New Zealand Consumer Price Index (or similar or equivalent index if that index ceases to be published) over the 12 months preceding the last quarterly publication of that index issued by Statistics New Zealand prior to the date of the notice.  Fees updated under this clause are deemed to be the Fees listed in the Subscription Form.

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

8         Intellectual Property

8.1        Ownership:

a. subject to clause 8.1b, title to, and all Intellectual Property Rights in, the Services, the APIs, the Website, and all Underlying Systems is and remains the property of the Supplier (and its licensors).  The Client must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.

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

8.2        Know-How:

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

8.3        Feedback:

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

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

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

8.4        Third Party Intellectual Property Rights Indemnity:

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

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

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

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

b. the indemnity in clause 8.4a does not apply to the extent that an IP Claim arises from or in connection with:

i.     the Client’s breach of the Agreement;

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

iii.    any third party data or any Data.

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

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

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

9         Confidentiality

9.1        Security:

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

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

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

c. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 9.1a and b.

9.2        Permitted Disclosure:

The obligation of confidentiality in clause 9.1 does not apply to any disclosure or use of Confidential Information:

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

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

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

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

e. by the Supplier if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 9.

9.3     Publicity rights: 

Despite anything in this clause 9, the Client agrees that the Supplier may identify the Client as a user of the SaaS Service on the Supplier’s website and in its marketing and other promotional materials.  The Client grants the Supplier a non-exclusive, royalty-free licence to use, publish and display the Client’s name, trade marks, logos and designs (Brands) for these purposes.  The Supplier will use the Brands only in accordance with any usage and marketing guidelines provided by the Client from time to time.  The Client may withdraw the Supplier’s rights under this clause at any time by written notice to the Supplier.

10        Warranties

10.1        Mutual Warranties:

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

10.2       No implied Warranties:

To the maximum extent permitted by law:

a. the Supplier’s warranties are limited to those set out in the Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty of merchantability or fitness for purpose) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to NZD1,000.00; and

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

i.    meet the Client’s requirements or statutory or other legal obligations (including whether it will meet the Client’s obligations under any New Zealand or any other applicable employment law) or be suitable for a particular purpose; or

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

To avoid doubt, the Client has sole responsibility for meeting their obligations as an employer under applicable law.  The Supplier makes no representation or warranty that the Client’s use of the Service or the APIs will fulfil their statutory or legal obligations to pay or compensate any individuals or calculate any holiday or benefits in accordance with any applicable law.  In addition, without limiting this clause 10.2, if the Client’s version of Tatou provides for a wage fluctuation calculation, this calculation calculates the applicable wage top-up to a number (in dollars) specified by the Client.  Any minimum wage or other wage payment requirements under applicable law is not taken into account in the wage fluctuation calculation.

10.3        Consumer protection laws:

The Client agrees and represents that it is acquiring the Services and accessing the APIs, and entering the Agreement, for the purposes of trade.  The parties agree that:

a. to the maximum extent permissible by law, no consumer protection laws apply to the supply of the Services or the Agreement; and

b. it is fair and reasonable that the parties are bound by this clause 10.3.

10.4        Limitation of remedies:

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

a. supplying the Services again; and/or

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

11      Liability

11.1     Maximum Liability:

To the maximum extent permitted by law (and in respect of the APIs, only to the extent that clauses 11.2 and 11.3 do not apply), the maximum aggregate liability of the Supplier under or in connection with the Agreement or relating to the Services and/or the APIs, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by the Client under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Client from the Start Date to the date of the first event giving rise to liability).  The cap in this clause 11.1 includes the cap set out in clause 10.2a.

11.2    API Disclaimer:

a.  the APIs and API Data are provided on an as is and as available basis. 

b.  to the maximum extent permitted by law, the Supplier makes no representation concerning the quality of the APIs or the API Data and do not promise that the APIs and API Data will:

i.     meet the Client’s requirements or be suitable for a particular purpose; or

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

11.3    No Liability for APIs:

To the maximum extent permitted by law:

a.  the Client accesses and uses the APIs and API Data at its own risk; and

b.  the Supplier is not liable or responsible to the Client or any other person for any loss under or in connection with the APIs or API Data, or the Client’s access and use of (or inability to access or use) the APIs or API Data.  This exclusion applies regardless of whether the Supplier’s liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.

11.4     Unrecoverable Loss:

Neither party is liable to the other under or in connection with the Agreement or the Services or APIs 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.

11.5     Unlimited Liability:

a. clauses 11.1 and 11.2 do not apply to limit the Supplier’s liability:

i.    under the indemnity in clause 8.4a; or

ii.    under or in connection with the Agreement for:

·       personal injury or death;

·       fraud or wilful misconduct; or

·       a breach of clause 9.

b.  clause 11.2 does not apply to limit the Client’s liability:

i.    to pay the Fees;

ii.    under the indemnity in clause 6.6; or

iii.    for those matters stated in clause 11.5a.ii.

11.6     No liability for the other’s Failure:

Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.

11.7     Mitigation:

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

12      Term, Termination and Suspension

12.1     Duration:

Unless terminated under this clause 12, and unless otherwise set out on the Subscription Form, the Agreement and the Client’s right to access and use the Services and APIs:

a. starts on the Start Date and ends on the End Date; but

b. where no End Date is set out in the Subscription Form, continues for successive terms of 12 months from the start date unless a party gives at least 30 days’ written notice that the Agreement will terminate on the expiry of the then-current term.

12.2     No fault termination:

Either party may terminate the Agreement on an anniversary of the Start Date by giving at least 30 days’ notice prior to that anniversary date.

12.3    Other termination rights:

a. either party may, by notice to the other party, immediately terminate the Agreement if the other party:

i.    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;

ii.      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; or

iii.    is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.

b. if the remedies in clause 8.4c are exhausted without remedying or settling the IP Claim, the Supplier may, by notice to the Client, immediately terminate the Agreement.

12.4     Consequences of termination or expiry:

a. termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.

b. on termination or expiry of the Agreement, the Client must pay all Fees for Services provided prior to that termination or expiry.

c. if the Client has paid any Fees in advance, and:

i. the Agreement is terminated other than by the Client under clause 12.3ai or ii, no refunds will be provided for the Fees paid in advance unless otherwise agreed in the Subscription Form; or

ii. the Agreement is terminated by the Client under clause 12.3ai or ii, the Supplier will refund the Fees less an amount equal to the Fees for the period from the start of the subscription period to which the Fees relate to the date of termination. 

d. except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of the Agreement and subject to clause 12.4e, 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. 

e. at any time prior to one month after the date of termination or expiry, the Client may request:

i.    a copy of any Data stored using the SaaS Service, provided that the Client pays the Supplier’s reasonable costs of providing that copy.  On receipt of that request, the Supplier must provide a copy of the Data in a common electronic form.  The Supplier does not warrant that the format of the Data will be compatible with any software; and/or

ii.    deletion of the Data stored using the SaaS Service, in which case the Supplier must use reasonable efforts to promptly delete that Data. 

To avoid doubt, the Supplier is not required to comply with clause 12.4ei to the extent that the Client previously requested deletion of the Data.

12.5     Obligations continuing:

Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 6.6, 8, 9, 11, 12.4, 12.5, 13 and 14.10, continue in force.

12.6     Rights to Restrict:

Without limiting any other right or remedy available to the Supplier, the Supplier may restrict or suspend the Client’s access to the SaaS Service and/or the APIs and/or delete, edit or remove the relevant Data if the Supplier considers that the Client (including any of its personnel) has:

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

b. used, or attempted to use, the SaaS Service and/or the APIs:

i.    for improper purposes;

ii.    in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service and/or the APIs; or

iii.   in a manner 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 unlawful;

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 the Agreement.

12.7     Process:

a. the Supplier must notify the Client where it restricts or suspends the Client’s access, or deletes, edits or removes Data, under clause 12.6.

b. clause 12.4e.i will not apply to the extent that it relates to Data deleted or removed under clause 12.6.

13       Disputes

13.1     Good faith negotiations:

Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.

13.2     Obligations continue:

Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.

13.3     Right to seek relief:

This clause does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

14      General

14.1     Force Majeure:

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 efforts to overcome the Force Majeure; and

c. continues to perform its obligations to the extent practicable.

14.2     Rights of third parties:

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

14.3     Waiver:

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

14.4     Independent Contractor:

Subject to clause 6.3, the Supplier is an independent contractor of the Client, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.

14.5     Notices:

A notice given by a party under the Agreement must be delivered to the other party via email using the email address set out in the Subscription Form or otherwise notified by the other party for this purpose.  If the notice is a notice of termination, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address.

14.6     Severability:

a. If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.

b. If modification under clause 14.6a is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.

14.7     Variation:

Subject to clauses 2.1 and 7.4, any variation to the Agreement must be in writing and signed by both parties.

14.8     Entire Agreement:

The Agreement sets out everything agreed by the parties relating to the Services and APIs, 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 subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date.  Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 14.8.

14.9     Subcontracting and assignment:

a. the Client may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of the Supplier, that consent not to be unreasonably withheld.  The Client remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer.  Any assignment, novation, subcontracting or transfer must be in writing.

b.  any change of control of the Client is deemed to be an assignment for which the Supplier’s prior written consent is required under clause 14.9a.  In this clause change of control means any transfer of shares or other arrangement affecting the Client or any member of its group which results in a change in the effective control of the Client.

14.10   Law:

The Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand.  Each party submits to the exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with the Agreement.

14.11   Counterparts:

The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement.  A party may enter the Agreement by signing and emailing a counterpart copy to the other party.

Thank you for taking the time to read these Terms, please get in touch if you have any questions.