TERMS & CONDITIONS

BWARE LIMITED

GENERAL TERMS

1. INTERPRETATION

1.1 Definitions: In the Agreement, the following terms have the stated meaning:

Terms	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 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 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: • 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.
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.
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:

(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;

2. SERVICES

2.1 General: The Supplier must use reasonable efforts to provide the Services:

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:

3. CLIENT OBLIGATIONS

3.1 General use: The Client and its personnel must:

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:

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. DATA

4.1 Supplier access to Data:

4.2 Analytical Data: The Client acknowledges and agrees that:

4.3 Agent:

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. FEES

5.1 Fees: The Client must pay to the Supplier the Fees

5.2 Invoicing and payment:

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

6. INTELLECTUAL PROPERTY

6.1 Ownership:

(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):

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:

7. CONFIDENTIALITY

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. PRIVACY

(a) Information collected BWARE Limited collects information from and about the Client, including but not limited to the Client’s name and contact details, upon applying for the licence. Such information is provided by the Client voluntarily. So far as reasonably possible, the use and payment for any services offered by BWARE Limited will be de-identified for the Client’s security.
(b) Storage and use BWARE Limited will store Confidential Information on its secure servers in data centres of its choice. Any Confidential Information the Client provides to BWARE Limited will only be used by BWARE Limited for its statistical purposes.
(c)Disclosure BWARE Limited will not supply Confidential Information to anyone without first obtaining the Client’s consent, unless BWARE Limited is obliged or

8.1 Information collected: BWARE Limited collects information from and about the Client:

8.2 Confidential Information: BWARE Limited will:

8.3 Client permission: The Client warrants that they give BWARE Limited permission to access and use their Confidential Information as described in this Agreement and that the Client is aware BWARE Limited relies on that warrant.

9. WARRANTIES

9.1 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

9.2 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:

9.3 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:

9.4 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:

10. LIABILITY

10.1 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).

10.2 Unrecoverable loss: Neither party is liable to the other under or in connection with the Agreement or the Services for any:

10.3 Unlimited liability:

10.4 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.

10.5 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.

11. TERM, TERMINATION AND SUSPENSION

11.1 Duration: Unless terminated under clause 10.2, of the Agreement

11.2 Termination rights:

11.3 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.

11.4 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.

11.5 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:

11.6 Process:

11.7 Refunds

12. DISPUTES

12.1 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.

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

12.3 Right to seek relief: This clause 11 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

13. GENERAL

13.1 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:

13.2 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.

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

13.4 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.

13.5 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.

13.6 Severability:

13.7 Variation: Subject to clause 5.5, any variation to the Agreement must be in writing and signed by both parties.

13.8 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.

13.9 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.

13.10 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.

13.11 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.

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