BWARE LIMITED
1.1 Definitions: In the Agreement, the following terms have the stated meaning:
Term | Meaning |
|---|---|
Business Day | Means any day other than a Saturday or Sunday or statutory holiday in New Zealand. |
BWARE Software | the software owned by the Supplier (and its licensors) that is used to provide the SaaS Service. |
Confidential | 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 BWARE Software. The Client’s Confidential Information includes the Data. |
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. |
End Date | the end date set out in the Key Details |
Fees | the fees set out in the Key Details, as updated from time to time in accordance with clause 5.5. |
Force Majeure | an event that is beyond the reasonable control of a party, excluding: |
Intellectual Property | 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. |
Key Details | the Agreement specific details set out in Section A of the Agreement |
Objectionable | includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way. |
Payment Terms | the payment terms set out in the Key Details (if any). |
Permitted Users | those personnel of the Client who are authorised to access and use the Services on the Client’s behalf in accordance with clause 3.3. |
Personal Information | has the meaning given in the Privacy Act 2020. |
Related Services | any related service described in the Key Details and any further services that the Supplier agrees to provide to the Client under the Agreement. |
SaaS Service | the service having the core functionality described in the Key Details. |
Services | the SaaS Service and any Related Service. |
Start Date | the start date set out in the Key Details |
Underlying Systems | the BWARE 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 the domain set out in the Key Details, 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. |
1.2 Interpretation: In the Agreement:
(a) clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
(b) words in the singular include the plural and vice versa;
(c) a reference to:
(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 Section B and Section A of the Agreement, Section B prevails unless expressly stated otherwise in Section A.
2.1 General: The Supplier must use reasonable efforts to provide the Services:
(a) in accordance with the Agreement and New Zealand law;
(b) exercising reasonable care, skill and diligence; and
(c) using suitably skilled, experienced and qualified personnel.
2.2 Non-exclusive: The Supplier’s provision of the Services to the Client is non-exclusive. Nothing in the Agreement prevents the Supplier from providing the Services to any other person.
2.3 Availability:
(a) The Supplier will use reasonable efforts to ensure the SaaS Service is available during normal business hours in New Zealand. However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. The Supplier will use reasonable efforts to publish on the Website and/or notify you by email advance details of any unavailability.
(b) Support Services will be provided in accordance with the service levels set out in the Appendix.
2.4 Additional Related Services:
(a) The Supplier may, from time to time, make available additional services to supplement the SaaS Service.
(b) At the request of the Client and subject to the Client paying the applicable Fees, the Supplier may agree to provide to the Client an additional Related Service on the terms of the Agreement.
3.1 General use: The Client and its personnel must:
(a) use the Services in accordance with the Agreement solely for:
(b) not resell or make available the Services to any third party, or otherwise commercially exploit the Services;
(c) attend the required training sessions and give the Supplier reasonable notice where sessions need to be rescheduled;
(d) appoint personnel to act as:
3.2 Access conditions: When accessing the SaaS Service, the Client and its personnel must:
(a) not impersonate another person or misrepresent authorisation to act on behalf of others or the Supplier;
(b) correctly identify the sender of all electronic transmissions;
(c) not attempt to undermine the security or integrity of the Underlying Systems;
(d) not use, or misuse, the SaaS Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service;
(e) not attempt to view, access or copy any material or data other than:
(f) neither use the SaaS Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and
(g) comply with any terms of use on the Website, as updated from time to time by the Supplier.
3.3 Personnel:
(a) Without limiting clause 3.2, no individual other than a Permitted User may access or use the SaaS Service.
(b) The Client may authorise any member of its personnel to be a Permitted User, in which case the Client will provide the Supplier with the Permitted User’s name and other information that the Supplier reasonably requires in relation to the Permitted User.
(c) The Client must procure each Permitted User’s compliance with clauses 3.1 and 3.2 and any other reasonable condition notified by the Supplier to the Client.
(d) A breach of any term of the Agreement by the Client’s personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of the Agreement by the Client.
3.4 Authorisations: The Client is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.
4.1 Supplier access to Data:
(a) The Client acknowledges that:
(b) The Client must arrange all consents and approvals that are necessary for the Supplier to access the Data as described in clause 4.1(a).
4.2 Analytical Data: The Client acknowledges and agrees that:
(a) the Supplier may:
(b) the Supplier’s rights under clause 4.2(a) above will survive termination of expiry of the Agreement; and
(c) title to, and all Intellectual Property Rights in, Analytical Data is and remains the Supplier’s property
4.3 Agent:
(a) The Client acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, the Supplier is acting as an agent of the Client for the purposes of the Privacy Act 2020 and any other applicable privacy law.
(b) The Client must obtain all necessary consents from the relevant individual to enable the Supplier to collect, use, hold and process that information in accordance with the Agreement.
4.4 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 files uploaded by it onto the SaaS Service (i.e. PDF’s, images).
4.5 International storage of Data: The Client agrees that the Supplier may store Data (including any Personal Information) in secure servers in Australia and may access that Data (including any Personal Information) in Australia and New Zealand from time to time.
4.6 Indemnity: The Client indemnifies the Supplier against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by the Supplier’s solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.
5.1 Fees: The Client must pay to the Supplier the Fees
5.2 Invoicing and payment:
(a) The Supplier will provide the Client with valid GST tax invoices on the dates set out in the Payment Terms, or if there are none, monthly in arrears for the Fees due in the previous month.
(b) The Fees exclude GST, which the Client must pay on taxable supplies under the Agreement.
(c) The Client must pay the Fees:
5.3 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.
5.4 Right to suspend: If the Client does not pay any amount due to the Provider under this Agreement, the Supplier may suspend the provision of the Saas Service until the Client’s account is paid in full.
5.5 Increases:
(a) By giving at least 60 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 Key Details.
(b) If the Client does not wish to pay the increased Fees, it may terminate the Agreement on no less than 45 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
(a) Subject to clause 6.1(b), title to, and all Intellectual Property Rights in, the Services, the Website, and all Underlying Systems is and remains the property of the Supplier (and its licensors). The Client must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
(b) Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains the property of the Client. The Client grants the Supplier a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with the Agreement.
6.2 Know-how: To the extent not owned by the Supplier, the Client grants the Supplier a royalty-free, transferable, irrevocable and perpetual licence to use for the Supplier’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by the Supplier in the provision of the Services.
6.3 Feedback: If the Client provides the Supplier with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
(a) all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Supplier; and
(b) the Supplier may use or disclose the feedback for any purpose.
6.4 Third party sites and material: On the Client’s request, the SaaS Service may link to third party websites or feeds that are connected or relevant to the SaaS Service. Any link from the SaaS Service does not imply any Supplier endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, the Supplier excludes all responsibility or liability for those websites or feeds.
6.5 Third party Intellectual Property Rights indemnity:
(a) The Supplier indemnifies the Client against any claim or proceeding brought against the Client to the extent that claim or proceeding alleges that the Client’s use of the SaaS Service in accordance with the Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to the Client:
(b) The indemnity in clause 6.5(a) does not apply to the extent that an IP Claim arises from or in connection with:
(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):
7.1 Security: Each party must, unless it has the prior written consent of the other party:
(a) keep confidential at all times the Confidential Information of the other party;
(b) effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
(c) disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 7.1(a) and 7.1(b).
7.2 Security Breach: If the Supplier becomes aware of any accidental, unauthorised, or unlawful destruction, loss, alteration, or disclosure of, or access to, any Confidential Information (Security Breach) or a potential Security Breach which the Supplier considers, acting reasonably, could have had a material impact, the Supplier must:
(a) Notify the Client as soon as reasonably practicable, but no later than 48 hours, after becoming aware of the Security Breach or potential Security Breach; and
(b) Provide the Client with a description of the Security Breach, at its cost (but on a pro rata basis if the Client contributed to the Security Breach) use reasonable endeavours to remedy the breach, and in consultation with the Client (acting in a timely manner), must mitigate its consequences as soon as reasonably practicable;
(c) In the case of a potential Security Breach, at its cost use best endeavours to ensure that the potential breach does not become an actual breach.
7.3 Permitted disclosure: The obligation of confidentiality in clause 7.1 does not apply to any disclosure or use of Confidential Information:
(a) for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
(b) required by law (including under the rules of any stock exchange);
(c) which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
(d) which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or
(e) by the Supplier if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.
8.1 Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party
8.2 No implied warranties: To the maximum extent permitted by law:
(a) the Supplier’s warranties are limited to those set out in the Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to NZD 1,000.00; and
(b) the Supplier makes no representation concerning the quality of the Services and does not promise that the Services will:
8.3 Consumer Guarantees Act: The Client agrees and represents that it is acquiring the Services, and entering the Agreement, for the purposes of trade. The parties agree that:
(a) to the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Services or the Agreement; and
(b) it is fair and reasonable that the parties are bound by this clause 8.3.
8.4 Limitation of remedies: Where legislation or rule of law implies into the Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Agreement. However, the liability of the Supplier for any breach of that condition or warranty is limited, at the Supplier’s option, to:
(a) supplying the Services again; and/or
(b) paying the costs of having the Services supplied again.
9.1 Maximum liability: The maximum aggregate liability of the Supplier under or in connection with the Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by the Client under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Client from the Start Date to the date of the first event giving rise to liability). The cap in this clause 9.1 includes the cap set out in clause 8.2(a).
9.2 Unrecoverable loss: Neither party is liable to the other under or in connection with the Agreement or the Services for any:
(a) loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
(b) consequential, indirect, incidental or special damage or loss of any kind.
9.3 Unlimited liability:
(a) Clauses 9.1 and 9.2 do not apply to limit the Supplier’s liability:
9.4 No liability for other’s failure: Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.
10.1 Duration: Unless terminated under clause 10.2, of the Agreement
(a) starts on the Start Date and ends on the End Date; but
(b) where no End Date is set out in the Key Details, continues for successive terms of 12 months from the start date
(c) the contract period is for a duration of 12 months
10.2 Termination rights:
(a) Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
(b) If the remedies in clause 6.5(c) are exhausted without remedying or settling the IP Claim, the Supplier may, by notice to the Client, immediately terminate the Agreement.
10.3 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) 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 10.3(d), 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.
(d) At any time prior to one month after the date of termination or expiry, the Client may request:
To avoid doubt, the Supplier is not required to comply with clause 10.3(d)(i) to the extent that the Client previously requested deletion of the Data.
10.4 Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 4.6, 6, 7, 9, 10.3, 10.4 and 11, continue in force.
10.5 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 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 or any Underlying Systems;
(b) used, or attempted to use, 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 the Agreement.
10.6 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 10.5.
(b) Clause 10.3(d)(i) will not apply to the extent that it relates to Data deleted or removed under clause 10.5.
10.7 Refunds
(a) all Licence fees are non-refundable, subject to clause 10.7(b)
(b) in the event of an overpayment for Licence fees, BWARE Limited will refund the amount overpaid back to the client by crediting it to the Client’s nominated credit card account.
11.1 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.
11.2 Obligations continue: Each party must, to the extent possible, continue to
perform its obligations under the Agreement even if there is a dispute.
11.3 Right to seek relief: This clause 11 does not affect either party’s right to seek
urgent interlocutory and/or injunctive relief.
12.1 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.
12.2 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.
12.3 Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
12.4 Independent contractor: Subject to clause 4.3, 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.
12.5 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 Key Details 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.
12.6 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 12.6(a) 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.
12.7 Variation: Subject to clause 5.5, any variation to the Agreement must be in writing and signed by both parties.
12.8 Entire agreement: The Agreement sets out everything agreed by the parties relating to the 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 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 12.8.
12.9 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 12.9(a). 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.
12.10 Law: The Agreement is 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.
12.11 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.
