These terms and conditions (“Terms”) apply to the use of and/or subscription to the product known as Talent Habitat (“Product”), including the modules to which you subscribe as set out in your Order Form.
The Product is made available by Talent Habitat Limited, a company incorporated in New Zealand (company number 9260627) having its registered office at 51 Lucerne Road, Remuera, Auckland (“Supplier”, “we”, “us”, “our”) to an end customer to whom we or a Reseller grants access to the Product (in these Terms, referred to as “Customer”, “you”, “your”).
These Terms apply to the exclusion of any terms which you purport to apply between you and us relating to your use of the Product.
If you subscribe to the Product through a Reseller rather than directly from us:
If you subscribe to the Product through a managed service provider rather than directly from us:
a. your arrangements relating to your access to the Product will be governed solely by the agreement you enter into with the managed service provider;
b. we have no liability to you in relation to the Product, whether under these Terms or otherwise;
c. if you, with the consent of the managed service provider, opt to transfer your access to the Product to a direct arrangement with us, your access to the Product will only be governed by these Terms if and when we and you agree an Order Form in the manner contemplated by clause 3.1.
Where we agree to grant you access to the Product on a free trial basis only:
a. your access to the Product will be valid for 30 days, or such other period as we agree with you (“Trial Period”);
b. to subscribe to the Product after the Trial Period, we and you (or a Reseller acting on your behalf) must agree an Order Form in the manner contemplated by clause 3.1;
c. notwithstanding any other provision of these Terms, we will only make the Product available to you to use during the Trial Period on an “as is” basis, for the purpose of you trialling the Product and its functionality;
d. notwithstanding clause 8.2, our aggregate liability to you due to, under and/or arising out of or in connection with these Terms, your use of the Product (including any inability to use the Product) and/or the performance of any Services in contract, tort (including negligence), breach of statutory duty or otherwise, will not exceed $1.00 in either Australian or New Zealand currency.
We may update these Terms by:
a. posting an updated document at https://www.talenthabitat.io/eula
; and/or
b. giving notice to you in accordance with clause 15.
Any updates we make in accordance with clause 1.7 will take effect:
a. immediately, in the case of non-material updates (such as grammatical changes), the inclusion of changes to accommodate the introduction of new services or features, or changes which a reasonable person would consider are beneficial to Customers;
b. in the case of all other updates, upon the next Renewal Date.
These Terms will apply to your use of any version or updates of the Product that we release from time to time and make available to you, including any new features or modifications to features of the Product introduced by a new version or update.
In these Terms, unless the context otherwise requires:
“Actual Uptime” has the meaning given to it in clause 4.2(b).
“Additional Services” means any services or works contemplated by a Work Order.
“Additional Service Fees” means the fees applicable to the performance of Additional Services, as contemplated by the relevant Work Order.
“Applicable Law” means any legislation or regulation which is binding on a party and/or which applies to the Product or Services.
“Arbitration Notice” has the meaning given to it in clause 14.2.
“Available” has the meaning given to it in clause 4.2(c).
“Business Day” means a day (other than Saturday or Sunday) on which registered banks are open for business in Auckland, New Zealand, but excludes any day in the period from 24 December in any year to 5 January in the following year (both inclusive).
“Change” has the meaning given to it in clause 6.2.
“Change Request” has the meaning given to it in clause 6.2.
“Confidential Information” means any financial, commercial or operational information of Customer which is marked confidential or which a reasonable person would consider was confidential taking into account the circumstances in which it was disclosed or made available to us.
“Customer Data” means:
a. all data inputted or created in connection with the Products by you or a person using the Products with your authority; and
b. any other data collected by you or on your behalf and made available to us in connection with the Products.
“Customer IPR” means all IPR in any materials that you provide to us.
“Dispute” means a dispute, difference, controversy, or claim arising out of, relating to, or in connection with these Terms (including any question regarding its existence, validity, or termination), the Products, or any Services.
“Dispute Notice” has the meaning given to it in clause 14.1.
“First-Line Support” means initial first-line support in connection with any basic troubleshooting regarding the operation of the Product, and the triage of any more complicated issues arising in connection with your use of the Product.
“Force Majeure Event” means an event or circumstances outside a party’s reasonable control, including:
a. fire, flood, explosion, earthquake, storm or other natural disaster;
b. civil commotion, hostilities (whether war is declared or not), sabotage, an act of terrorism, chemical or biological contamination;
c. the acts of any public authority or imposition of any government sanction, embargo or similar action;
d. strikes, industrial action and other labour disputes; or
e. pandemics, epidemics, infectious disease outbreaks or other multinational health issues.
“Implementation Fee” means the fees applicable to the performance of Implementation Services, as specified in or contemplated by the relevant Order Form.
“Implementation Services” means the implementation services (if any) contemplated by the relevant Order Form.
“Indemnified Claim” has the meaning given to it in clause 11.8.
“Initial Subscription Term” means the “Initial Subscription Term” specified in the relevant Order Form.
“Insolvency Event”, in relation to a party, means that:
a. the party ceases or takes steps to cease to conduct its business in the normal manner;
b. the party goes into receivership or has a receiver, trustee or manager (including a statutory manager) appointed in respect of that party and/or all or any of its property;
c. the party enters into voluntary administration;
d. the party is unable to pay its debts when they are due or is presumed to be unable to pay its debts as they fall due;
e. the party makes an assignment for the benefit of, or enters into or makes any arrangement or composition with, its creditors;
f. any resolution is passed or any proceeding is commenced for the winding up or liquidation of the party (whether on a voluntary or involuntary basis); or
g. any analogous demand, appointment or procedure is instituted or occurs in relation to the party.
“IPR” means:
a. all intellectual property rights throughout the world, including rights in respect of copyright, patents, trade marks, designs, trade secrets, know-how, and circuit layouts (in each case, whether registered or unregistered); and
b. any application or right to apply for registration of any of the rights referred to in paragraph (a) above.
“Liability” means, in respect of a Third Party Claim:
a. costs, expenses, damages, liabilities, judgments, fines, penalties (whether civil, criminal or otherwise) incurred in defending or settling the Third Party Claim;
b. amounts paid or payable in settlement of the Third Party Claim, including all interest, assessments and other charges paid or payable in connection with or in respect of any of the foregoing; and
c. all legal costs and expenses incurred (including solicitor-client costs) in connection with the defence or settlement of the Third Party Claim.
“Notice Period” means three months.
“Order Form” has the meaning given to it by clause 3.1.
“Payment Notice” has the meaning given to it in clause 9.3(b).
“Personal Information” has the meaning given to it by Privacy Law.
“Privacy Breach” means that, with respect to any Customer Data which is Personal Information:
a. the Customer Data is the subject of a “privacy breach” for the purposes of the Privacy Act 2020 (New Zealand); or
b. the Customer Data is the subject of an “eligible data breach” for the purposes of the Privacy Act 1988 (Cth) (Australia).
“Privacy Law” means any Applicable Law regulating privacy, data protection and/or the use of Personal Information, including:
a. in New Zealand, the Privacy Act 2020;
b. in Australia, the Privacy Act 1988 (Cth).
“Product” has the meaning given to it by clause 1.1.
“Regulatory Authority” means any regulatory, supervisory, or self-regulatory authority or body having jurisdiction over some or all of the business and affairs of a party and/or in respect of the Product and/or any Services.
“Renewal Date” means the date immediately following the expiry of the Initial Subscription Term and/or the then-current Renewal Subscription Term (as the case may be).
“Renewal Subscription Term” means the “Renewal Subscription Term” specified in the relevant Order Form.
“Reseller” means a reseller through whom you subscribe to the Product.
“Service Fees” means:
a. the Implementation Fee;
b. the Support and Maintenance Fees; and/or
c. the Additional Service Fees (if any).
“Services” means, as the context requires:
a. the Implementation Services;
b. the Support and Maintenance Services; and/or
c. any Additional Services.
“Subscription Commencement Date” means the “Subscription Commencement Date” specified in the relevant Order Form.
“Subscription Fee” means, subject to clause 10.6, the “Subscription Fee” specified in the relevant Order Form.
“Subscription Term” means the subscription term described in clause 3.4.
“Subscription Year” means each 12-month period during the Subscription Term, starting on the Subscription Commencement Date.
“Supplier Brand” means any trade marks or service marks used to identify the Product, in whatever form and however stylised.
“Support and Maintenance Fee” means, subject to clause 10.6, the “Support and Maintenance Fee” specified in the relevant Order Form.
“Support and Maintenance Services” means the Services which are described as Support and Maintenance Services in the relevant Order Form.
“Supplier IPR” means:
a. all IPR in the Products;
b. all IPR in the Services and in any materials or documentation prepared by us in connection with the Services, except to the extent such IPR are Customer IPR.
“Target Implementation Date” means the “Target Implementation Date” (if any) specified in the relevant Order Form.
“Target Uptime” has the meaning given to it in clause 4.2(g).
“Third Party Claim” means a proceeding or claim against a party by any person other than the other party.
“Trial Period” has the meaning given to it in clause 1.6(a).
“Work Order” means each work order entered into in accordance with clause 6 or which the parties otherwise agree in writing is a work order for the purposes of these Terms.
In interpreting these Terms, the following rules must be applied unless the context otherwise requires:
a. Headings: Clause and other headings are for reference only and are not an aid in interpretation.
b. Statutes: References to statutory provisions will include references to all regulations, orders, rules or notices made under that statute, and references to a statute or regulation will be construed as references to those statutes or regulations as they may be amended or re-enacted or as their application is modified by other provisions from time to time.
c. Clauses: References to clauses are to clauses of these Terms.
d. Periods of time: All periods of time include the day on which the period commences and also the day on which the period ends.
e. Number: Words importing the plural include the singular and vice versa.
f. Person: A reference to a “person” includes a natural person, company, corporation, partnership, firm, joint venture, association of persons (whether corporate or unincorporated), trust, organisation, Government department, Minister of the Crown, state or agency of a state (in each case, whether or not having separate legal personality).
g. Includes: The word “includes” in any form is not a word of limitation.
h. Interpretation: Nothing in these Terms is to be interpreted against us solely on the ground that we put forward these Terms or any part of them.
i. Currency: References to $ or to dollars are references to New Zealand dollars (currency code: NZD) for clients and partners in New Zealand and Australian dollars (currency code: AUD) for clients and partners in Australia.
If there is any inconsistency between the documents that form part of these Terms, the following descending order of precedence applies (in that provisions or documents will prevail over provisions or documents listed below them to the extent of any inconsistency):
a. the relevant Order Form or Work Order;
b. any amendment to these Terms agreed by the parties in accordance with clause 16.3;
c. clauses 1 to 16 of these Terms; and
d. any other documents incorporated by reference into these Terms.
References in these Terms to the “relevant Order Form” and “relevant Work Order” are references to the Order Form or Work Order under or in connection with which the relevant Products and Services are being provided.
If these Terms contemplate that a matter is subject to a party’s prior approval, that approval:
a. is only valid if given in writing; and
b. must not be unreasonably withheld, delayed, or made subject to conditions.
To subscribe to the Product, you (or a Reseller acting on your behalf) and we must agree a valid order form (“Order Form”) which records the terms on which you will subscribe to the Product.
No Order Form is binding on us unless and until we have signed it and returned it to you (or the Reseller acting on your behalf).
The Subscription Fees payable by you in connection with your access to the Product and the Service Fees payable by you in connection with the provision by us of the Services will be:
a. if you subscribe through a Reseller, as notified by the Reseller to you; or
b. for all other Customers, as set out in the relevant Order Form.
The Subscription Term:
a. commences on the Subscription Commencement Date;
b. unless earlier terminated in accordance with clause 9, will continue until the expiry of the Initial Subscription Term;
c. following expiry of the Initial Subscription Term, will continue for additional periods equal to the Renewal Subscription Term unless terminated by either party giving the other party notice of no shorter period than the Notice Period to terminate, such notice to take effect on the next Renewal Date.
Where contemplated by the relevant Order Form, we will carry out the Implementation Services, and where we do so, we will use reasonable endeavours to complete the Implementation Services by the Target Implementation Date.
Where contemplated by the relevant Order Form, we will carry out the Support and Maintenance Services.
If the relevant Order Form does not contemplate that we will carry out any Support and Maintenance Services, you will be solely responsible for arranging the provision of any support, maintenance, updates, new releases or any other assistance in connection with the Product.
We will use reasonable endeavours to ensure that the Actual Uptime of the Product during each calendar month during the Subscription Term is no less than the Target Uptime.
In clause 4.1:
a. “Actual Available Minutes” means the number of minutes during the calendar month in which the Product was Available.
b. “Actual Uptime” means Actual Available Minutes as a percentage of Monthly Available Minutes.
c. “Available” means available for use with no material errors in functionality.
d. “Excluded Event” means any failure of systems, hardware, software, communications equipment, networks or other equipment used to access the Product, other than those for which we are responsible for delivering or otherwise making available under these Terms.
e. “Monthly Available Minutes” means the aggregated number of minutes in the relevant calendar month, excluding any time during which the Product was not available by reason of:
i. an Excluded Event; and/or
ii. a Force Majeure Event; and/or
iii. Scheduled Downtime.
f. “Scheduled Downtime” means any time during which the Product is not Available due to us undertaking scheduled maintenance.
g. “Target Uptime” means 99%.
4.3 No other performance warranties
Except as set out in clause 4.1, we do not warrant that:
a. the Product will be available at all times;
b. the Product will operate without error; or
c. any third party features that we make available through the Product (including through the use of APIs) will be available at all times.
We may withdraw or modify any of the non-material functionality of the Product from time to time without notice to you.
We must:
a. use reasonable endeavours to carry out the Services with reasonable care, skill and diligence;
b. use reasonable endeavours to complete the Services within the timeframe indicated, or if no timeframe is indicated, within a reasonable timeframe following confirmation of Customer’s instructions;
c. comply with all reasonable instructions given by Customer.
Other than the warranties and representations set out in clauses 4.1 and 4.5, we give no warranties and make no representations (including any statutory warranties other than those which we are not permitted to exclude under applicable law) in connection with your use of the Product and/or the Services.
We may revoke or suspend your access to the Products, without notice and without incurring liability to you:
a. where we reasonably consider that:
i. your access is being misused or has been compromised;
ii. to do so is desirable to protect the security and integrity of the Product generally, and/or any systems underpinning the delivery of the Product;
b. to undertake maintenance (scheduled or otherwise) of the Product generally, and/or any systems used to deliver the Product;
c. if required to do so by a third party on whom we rely for the provision of the Product.
4.8 Restrictions on use
You must not:
a. reverse engineer, disassemble, modify, decompile, decode, translate, or make any derivative works from the Product, or attempt to do so;
b. attempt to learn the source code, structure, algorithms, or internal ideas underlying the Product;
c. use the Product to store or transmit any viruses, software routines, or other code designed to permit unauthorised access, to disable, erase, or otherwise harm software, hardware, or data, or to perform any other harmful actions;
d. gain access to the Product or any of its functionality (including any data or other information made available through the Product) which you do not have our authority to access, or attempt to do so;
e. copy, frame, mirror, alter, modify, transmit or reproduce the Product or any of its functionality, or attempt to do so;
f. use the Product in a way that:
i. breaches, or causes us to breach, Applicable Law; or
ii. infringes any person’s IPR; and
g. remove, alter, or obscure the Supplier Brand, or any proprietary or copyright notices which we have configured the Product to display.
Any breach of your obligations under clause 4.8 is a material breach that is incapable of remedy.
You must implement, at our request:
a. maintenance releases;
b. new features; and/or
c. new versions,
of the Products (to the extent such releases, features or versions are not automatically deployed and/or deployed by us within the scope of the Support and Maintenance Services), and we may by notice to you cease to provide support in respect of where you have failed to implement a release, feature or version when reasonably requested to do so.
If:
a. you subscribe to the Product through a Reseller, that Reseller will be responsible for providing you with the First-Line Support unless we and the Reseller agree otherwise;
b. you subscribe to the Products directly through us, we will provide you with the First-Line Support in respect of your use of the Products.
During the Subscription Term, the parties may enter into Work Orders setting out details of Additional Services that we will carry out for you in accordance with this clause 6.
If:
a. you wish to add to or remove features or functionality of the Product or otherwise reconfigure the Product;
b. you require assistance to transfer any Customer Data; or
c. either party wishes to vary an existing Work Order,
(each a “Change”), either party may by notice to the other party (“Change Request”) request that the parties enter into a Work Order.
We will, within 20 Business Days after receiving or submitting a Change Request, prepare the form of Work Order to give effect to the Change, which Work Order will set out, in relation to the Change:
a. the additional Fees; and
b. the indicative timeframe for completion of the Additional Services.
Upon receipt of a proposed Work Order under clause 6.3, Customer:
a. in the case of a Change requested by Customer, may withdraw the Change Request; or
b. in the case of a Change requested by us, must not unreasonably refuse to implement the Change contemplated by, and in accordance with, the proposed Work Order.
No Work Order, nor any obligation to perform any Additional Services contemplated by a Work Order, will be binding on us unless the Work Order is signed by both parties.
All Work Orders, once signed by both parties, form part of these Terms, and the performance of Additional Services contemplated by such Work Orders will be governed by these Terms and the terms of the Work Order.
We will use reasonable endeavours to apply technical and organisational measures that are consistent with usual market practice with a view to protecting all Customer Data from misuse or unauthorised disclosure.
We may use (including by retaining copies of) all Customer Data:
a. for the purposes of providing the Product and all of its functionality to you;
b. for the purposes of undertaking maintenance, support, upgrades and revisions of the Product and its functionality;
c. in an aggregated or anonymised manner for the purposes of undertaking analytics or improving the functionality of the Product;
d. where you grant us permission to do so (whether in the Order Form or otherwise), in an aggregated or anonymised manner and otherwise in such a way so as to avoid identifying you or any person employed by you, for the purposes of market analysis, including for the purposes of reporting on salary data (which we may commercialise for our own benefit); and
e. in order to ensure our records are up to date.
In connection with the provision of the Product to you, we may disclose the Customer Data to service providers who are responsible for hosting the Customer Data on our behalf.
You warrant that where the Customer Data includes any Personal Information, the disclosure of the Customer Data to us for the purposes of us processing the Customer Data in the manner contemplated by these Terms, and our processing of the Customer Data in that manner, will comply with Privacy Law (without the need for us to make any further disclosures to any person).
We will back up all Customer Data at least once during each 24-hour period of the Term.
We may in our discretion cooperate with you in connection with any request made of you by any person in connection with our processing of Customer Data (including requests made by your client, and requests made by a Regulatory Authority), and we may charge you a reasonable fee in connection with such cooperation.
You must reasonably cooperate with us, at your cost, in connection with any Privacy Breach that occurs in respect of any of your Customer Data, including by:
a. promptly advising us as soon as you become aware of the occurrence of a Privacy Breach;
b. notifying the relevant Regulatory Authority and any other person, if you are required to do so by Applicable Law;
c. assisting us, at our request, to notify the relevant Regulatory Authority and any other person, if we are required to do so by Applicable Law;
d. cooperating with any audit or investigation in connection with the Privacy Breach.
We will not be liable to you whether in contract, tort (including negligence), breach of statutory duty or otherwise, under or in connection with these Terms, your use of the Product (including any inability to use the Product), and/or the performance of any Services for any of the following:
a. any loss or damage arising from any failure of systems, hardware, software, communications equipment, networks or other equipment used by you to access the Product;
b. any loss or damage caused by or arising from a distributed denial-of-service attack, viruses, or other technologically harmful material that may infect or corrupt your computer hardware, software, data or devices arising from your use of the Product;
c. any loss of anticipated savings and/or wasted expenditure, loss or corruption of data, loss of goodwill or loss of reputation (in each case, whether direct or indirect);
d. any indirect or consequential loss;
e. loss or corruption of any Customer Data, other than arising from our breach of clause 7.5; and/or
f. any loss or damage arising as a result of any third party bringing a claim in respect of any of the above types of loss.
Subject to clauses 1.6(c) and 8.3, our aggregate liability to you due to, under and/or arising out of or in connection with these Terms, your use of the Product (including any inability to use the Product) and/or the performance of any Services in contract, tort (including negligence), breach of statutory duty or otherwise:
a. in respect of any liability arising under a Work Order, will not exceed the Additional Service Fees actually paid or payable to us under that Work Order;
b. in respect of any other liability, will not exceed an amount equal to the aggregate of the Subscription Fees, the Implementation Fee, and the Support and Maintenance Fees actually paid or payable to us in the 12-month period prior to the date on which the event giving rise to the liability occurs.
8.3 Where exclusions and limitations do not apply
Nothing in these Terms in any way excludes or limits our liability for:
a. fraud or fraudulent misrepresentation; and/or
b. any matter for which it would be illegal to exclude or attempt to exclude our liability.
We may terminate your subscription to the Product if you commit any material breach of your obligations under these Terms (whether or not these Terms expressly contemplate that such breach is a material breach):
a. in the case of a breach which is capable of remedy, if you fail to remedy the breach after being given five Business Days’ notice specifying the breach and requiring it to be remedied;
b. in the case of a breach which is incapable of remedy, immediately by notice to you.
We may terminate these Terms immediately by notice to you if you become subject to an Insolvency Event.
If:
a. you fail to pay any amount that is payable under these Terms within two Business Days after the due date for payment; and
b. we give you notice stating that the amount payable has not been paid by the due date, specifying the amount, the basis on which such amount is payable, and the due date for payment (“Payment Notice”); and
c. you fail to pay the amount payable under the Payment Notice within a further two Business Days after the date you receive the Payment Notice,
we may terminate these Terms immediately by notice to you.
You may terminate your subscription to the Product if the Actual Uptime of the Product in three consecutive calendar months is less than the Target Uptime.
Your right to terminate your subscription under clause 9.4 and your right to a pro-rated refund of the Subscription Fee under clause 9.6 is your sole remedy arising from or in connection with the Product not being Available.
Termination of these Terms will not entitle you to a refund of the Subscription Fee, other than in the case of your termination of these Terms under clause 9.5 (in which case you will be entitled on request to a refund of the Subscription Fee, pro-rated on the basis of the actual months that have elapsed during the then-current Subscription Year).
Termination or expiry of these Terms will not affect the rights or liabilities of either party accrued prior to termination or expiry or any terms intended expressly or by implication to survive termination or expiry, including your obligation to pay any amount payable under these Terms which has not been invoiced as at the date of termination or expiry.
If you subscribe to the Product through a Reseller, the Reseller will be responsible for invoicing you for the Subscription Fees and the Service Fees.
If you subscribe to the Product directly through us, we may invoice you for:
a. the Subscription Fee:
i. in respect of the first Subscription Year, on or before the Subscription Commencement Date;
ii. in respect of each subsequent Subscription Year, at any time on or before the anniversary of the Subscription Commencement Date;
b. the Implementation Fees on or immediately following the Subscription Commencement Date;
c. the Support and Maintenance Fees monthly in arrears or as otherwise contemplated by the relevant Order Form; and
d. the Additional Service Fees monthly in arrears or as otherwise contemplated by the relevant Work Order.
You must pay, and we may invoice you at any time for, all actual and reasonable out-of-pocket expenses that we incur in carrying out any of the Services.
You must pay each invoice we issue you within seven days after the date of invoice.
All Fees are stated exclusive of Sales Tax, which, if applicable, will be payable by you at the rate applicable at the time of supply.
We may increase:
a. the Subscription Fee; and/or
b. any of the Service Fees,
with effect from the next Renewal Date, by giving you notice prior to the Renewal Date of no shorter period than the Notice Period plus ten Business Days.
You must pay all invoices we issue in full, without set off, counterclaim, withholding or deduction.
If you do not pay the full amount of an invoice when due, without limiting our rights of termination under clause 9.3, we:
a. may charge late payment interest on the amount outstanding:
i. at a rate of 5% per annum, compounding monthly;
ii. for a period which starts on the date the amount falls due for payment and ends on the date you pay the amount outstanding in full; and
b. may recover from you all costs of recovery incurred in connection with the late payment.
If you dispute any invoice:
a. you must pay the full amount of the invoice when due;
b. you may notify us of the dispute, which will constitute a Dispute to which clause 14 applies; and
c. if you have overpaid us, we may:
i. refund the overpayment; or
ii. apply a credit to the value of the overpayment to subsequent invoices.
As between the parties:
a. all right, title and interest in the Supplier IPR will remain in the ownership of, or will vest in (upon its creation), us (or our licensors); and
b. you (or your licensors) will own all Customer IPR.
We hereby grant you a non-exclusive, non-transferable and non-sublicensable licence of the Supplier IPR, for the Subscription Term, solely to the extent necessary to enable you to:
a. use the Product as configured by us; and
b. receive the Services.
You hereby grant to us a non-exclusive, royalty-free licence of the Customer IPR to the extent necessary or desirable to enable us to:
a. carry out the Services; and
b. implement and configure the Product.
If any right, title, or interest in any IPR is acquired by or otherwise vests in a party contrary to the intention set out in clause 11.1, that party:
a. hereby assigns to the other party (or agrees to assign, where not capable of a present assignment of future rights) all of its right, title, and interest in any and all of that IPR; and
b. will upon the reasonable request of the other party execute any documents and do or procure any acts which may reasonably be required to give effect to such assignment.
You must indemnify us on demand for all Liability we incur arising out of or in connection with any Third Party Claim alleging that the incorporation in the Product of any materials which are provided to us by you or on your behalf infringes the IPR or any other rights of any other person.
We must indemnify you on demand for all Liability you incur arising out of or in connection with any Third Party Claim against you alleging that your use of the Product as permitted under these Terms infringes another person’s IPR.
Without limiting our obligation under clause 11.6, if we become or reasonably consider that you or we may become the subject of a claim by any person that the Product and/or your use of the Product in accordance with these Terms does or may infringe that person’s IPR, we may, at our option:
a. obtain such rights as we reasonably consider necessary to ensure that you may continue to use the Product without infringing that person’s IPR; or
b. replace or modify the Product (or any of its functionality) in such a way as to not substantially compromise the primary functionality of the Product.
If any person makes a Third Party Claim or notifies an intention to make a Third Party Claim against you which may reasonably be considered likely to give rise to our obligation to indemnify you under clause 11.6 (“Indemnified Claim”):
a. you:
i. must as soon as reasonably practicable, give us notice of the Indemnified Claim, specifying the nature of the Indemnified Claim;
ii. must not make any admission of liability, agreement, or compromise in relation to the Indemnified Claim without our prior approval; and
iii. must take all reasonable steps to assist us in respect of the Indemnified Claim, including providing at its own expense all information and assistance we reasonably require; and
b. we:
i. may take over the defence or settlement of the Indemnified Claim at our sole discretion and cost; and
ii. without limiting clause 11.8(b)(i) and our duties to the court, must not make statements or submit evidence about you without your prior approval.
We will:
a. only use the Confidential Information for the purpose of carrying out the Services;
b. not disclose the Confidential Information, other than to:
i. any person, for or in connection with the purpose of carrying out the Services, on terms which require that person to treat the Confidential Information as confidential; or
ii. a legal or professional advisor to us, for the purpose of obtaining advice; and
c. apply the same security precautions to preserve the confidentiality of the Confidential Information as we apply to information that is confidential to us.
The obligations under clause 12.1 do not apply to any Confidential Information that:
a. is in the public domain, other than as a result of our breach of clause 12.1; or
b. subject to clause 12.3, we are required by law to disclose.
If we are required by law to disclose any Confidential Information, we may do so:
a. to the extent necessary;
b. to the proper recipient; and
c. unless we consider (acting reasonably) that we are prevented from doing so by law, if we have first used reasonable endeavours to give you prior notice of the requirement and the nature of the information to be disclosed.
Neither party will be liable to the other party for its inability to perform, or delay in performing, any obligations under these Terms caused by a Force Majeure Event.
If a Dispute arises, either party may by notice to the other party (“Dispute Notice”) refer the Dispute to the other party with a view to resolving the Dispute by way of good faith negotiations.
If the Dispute cannot be settled by good faith negotiation between the parties within 20 Business Days after the date of the Dispute Notice, either party may by notice to the other party (“Arbitration Notice”) refer the Dispute to the arbitration of a single arbitrator agreed between the parties or, in the absence of agreement within five Business Days after the date of the Arbitration Notice, appointed by the President for the time being of the Arbitrators’ and Mediators’ Institute of New Zealand.
Unless the parties otherwise agree:
a. the seat of arbitration will be Auckland, New Zealand;
b. the law applicable to the arbitral proceedings and the matters that are the subject of the Dispute will be the laws of New Zealand; and
c. the arbitration will otherwise be conducted in accordance with the Arbitration Act 1996.
Nothing in this clause 14 will prevent either party commencing court proceedings to seek urgent injunctive relief or any other equitable remedy.
Any notice given under these Terms must be in writing and will only be validly given to a party if personally delivered, posted, or sent by email to that party’s address for service as set out below (or such other address as that party subsequently notifies to the other party):
a. to your contact details as specified in the Order Form; or
b. to us:
i. by post to 51 Lucerne Road, Remuera, Auckland 1050, New Zealand (attention: Simon Hughes); or
ii. by email to [email protected]
Notices will be deemed to be received:
a. if sent by post, on the fifth Business Day after the date the notice was posted; and
b. if sent by email, at the time of transmission by the sender, unless the sender was put on notice that the transmission was unsuccessful,
but if the time and day on which a notice would be deemed to have been received in accordance with the above is not between 9:00am and 5:00pm on a Business Day, then the notice will be deemed to be received at 9:00am on the next Business Day.
These Terms (including each Order Form and Work Order entered into under these Terms) and all documents incorporated into these Terms by reference:
a. contain the entire agreement between the parties with respect to their subject matter;
b. set out the only conduct relied on by the parties; and
c. supersede all earlier conduct and prior agreements, representations and understandings between the parties in connection with their subject matter.
Nothing in these Terms or arising out of the relationship established under these Terms:
a. constitutes you as our agent or grants you any authority to make any commitments on our behalf; or
b. will create any trust, joint venture or commercial partnership between the parties.
No amendment to these Terms, any Order Form, or any Work Order will be effective unless it is in writing and signed by both parties.
Nothing in these Terms confers a benefit upon any person who is not a party, whether under Part 2 of the Contract and Commercial Law Act 2017 or otherwise.
No exercise or failure to exercise or delay in exercising any right or remedy by either party will constitute a waiver by that party of that or any other right or remedy available to that party.
You must not assign, charge, encumber, or otherwise deal with any rights and/or obligations under these Terms, or attempt or purport to do so, without our prior consent.
We may at any time by notice to you assign any or all of our rights and transfer any or all of our obligations under these Terms to any person who acquires all or substantially all of our assets and undertaking, and we will be released from our obligations under these Terms with effect from the date of such notice.
If any provision of these Terms or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of these Terms and its application will not be affected and will remain enforceable to the greatest extent permitted by law.
A party may enter into these Terms or any Order Form by signing a counterpart copy and sending that copy to the other party (including by email).
Each party’s rights under these Terms are cumulative and are not exclusive of any other rights and remedies available to the party.
These Terms and each Order Form will be construed and take effect as a contract made in New Zealand and will be governed by New Zealand law.
Subject to clause 14, the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.
