FarmRoad terms and conditions
Last updated 25 Oct 2023 NZT
1. APPLICATION OF TERMS
1.1. These terms apply to any SaaS Service and/or HaaS supplied by WayBeyond Limited to the Customer, unless there is a separate written agreement signed by both parties which excludes these Terms.
1.3. The Company may change these Terms at any time by giving 28 days’ notice to the Customer by email. Unless stated otherwise, any change takes effect from the date set out in the notice.
1.4 . The Customer is responsible for ensuring that it is familiar with the latest Terms.
1.5. Terms and Conditions last updated: These Terms were last updated on 25 October 2023 NZT.
In the Agreement, the following terms have the stated meaning:
Company - WayBeyond Limited, a New Zealand Company, company number 616577.
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 Company’s Confidential Information includes Intellectual Property owned by the Company (or its licensors), including the SaaS Software. The Customer’s Confidential Information includes the Data.
Customer - The Customer named in the Order.
Data - All data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Customer that is stored using, or inputted into, the Services.
Early Termination - Has the meaning given in clause 13.3bii.
Fees - The fees set out in the Order, as updated from time to time in accordance with clause 8.4.
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.
HaaS - Hardware that is specified in an Order as being provided on a hardware-as-as-service basis.
HaaS Term – For any HaaS, the period starting on the Start Date and ending the date that is the earlier of:
▲ the expiry of the Initial Term; or
▲ the date title to the HaaS passes to the Customer in accordance with clause 4.3b.
Initial Term - The Initial Term that is specified in the Order or otherwise agreed by the parties in writing.
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 trademarks 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.
Order - A document entitled Order that references these Terms and is signed by both parties.
Objectionable - Includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
Payment Terms - The payment terms set out in the Order (if any).
Permitted Users - Those personnel of the Customer who the Customer has provided access and use the Services on the Customer’s behalf in accordance with clause 6.4.
Personal Information - Means information about an identifiable individual, 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 Order that the Company may provide from time to time, and/or any additional services that the Company agrees to provide to the Customer under the Agreement.
ROI Information - The following financial data and information provided by the Customer to the Company for calculation of the Customer’s ROI:
▲ weekly average crop prices ($/kg), and contract pricing;
▲ Customer sales strategies, including any information regarding the impact of the Customer’s yield prediction confidence on its sales strategies;
▲ Customer pricing data, including relevant data on the impact of over/under supply to the Customer’s pricing;
▲ any relevant Customer contractual terms including contractual penalties for the Customer’s failure or delay to meet its contractual obligations; and
▲ the cost to the Customer of a lost customer from the Customer’s failure or delay to meet its contractual obligations, e.g. fill rate.
SaaS Service - The software-as-a-service having the core functionality described in the Order.
SaaS Software - The software owned by the Company (and its licensors) that is used to provide the SaaS Service.
Services - The SaaS Service, provision of the HaaS and any Related Service.
Start Date - The start date set out in the Order.
Terms - These WayBeyond standard terms.
Underlying Systems - The SaaS Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
Year - A 12 month period starting on the Start Date or the anniversary of that date.
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 Customer’s personnel does not include the Company;
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 these Terms and the Order, these Terms prevail unless expressly stated in the Order.
The Company must use reasonable efforts to provide the SaaS Service and Related 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.
The Company’s provision of the Services to the Customer is non-exclusive. Nothing in the Agreement prevents the Company from providing the Services to any other person.
a Subject to clause 3.3b, the Company will use reasonable efforts to ensure the SaaS Service is available on a 24/7 basis. However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. The Company will use reasonable efforts to publish on its website and notify you by email advance details of any unavailability.
b Through the use of data feeds, web services and APIs, the SaaS Service interoperates with a range of third party services, including the Conversational AI Services (as defined in clause 7.2) and third party data, including the outputs of the Conversational AI Services. The Company does not make any warranty or representation on the availability of those services or data and, to the maximum extent permitted by law, the Company excludes all responsibility or liability for those services and data and their operators. Without limiting the previous sentence, if a third party service or data provider ceases to provide that service or data or ceases to make that service or data available on reasonable terms, the Company may cease to make available the service or data to the Customer. To avoid doubt, if the Company exercises its right to cease the availability of a third party service or third party data, the Customer is not entitled to any refund, discount or other compensation.
3.4. Additional Related Services
a The Company may, from time to time, make available additional services to supplement the SaaS Service.
b At the request of the Customer and subject to the Customer paying the applicable Fees, the Company may agree to provide to the Customer an additional Related Service on the terms of the Agreement.
This clause 4 applies if the Order states that the Company is providing the Customer with HaaS.
4.2 . Provision and use
During the HaaS Term:
a the Company will provide the Customer with the HaaS; and
b the Customer must use the HaaS solely in connection with the SaaS Service (Approved Use).
a Legal and beneficial ownership of the HaaS remains with the Company until ownership passes to the Customer in accordance with clause 4.3b.
b Legal and beneficial ownership of the HaaS will pass to the Customer on the earlier of:
i completion of the Initial Term, subject to the Customer having paid all Fees that relate to the Initial Term; or
ii if there is an Early Termination, on payment of the early termination fee referred to in clause 13.3ci or payment of the purchase price referred to in clause 13.3cii.
Risk in the HaaS passes to the Customer:
a where the Customer is installing the HaaS, when the Company ships the HaaS to the Customer; and
b where the Company is installing the HaaS, when the Company completes installation of the HaaS.
4.5. Customer Obligations
During the HaaS Term, the Customer must:
a take proper care of the HaaS, including (where the Customer is installing the HaaS) installing, and maintaining, the HaaS:
i in accordance with the technical manuals and documentation provided by the Company (Documentation);
ii using suitably skilled, experienced and qualified technicians; and
iii with due care, skill and diligence and in accordance with accepted industry practice;
b not relocate the HaaS to a premises other than the premises specified in the Order, except with the Company’s prior written approval;
c not resell or make available the HaaS to any third party, or otherwise commercially exploit the HaaS;
d not repair the HaaS;
e not reverse-engineer, tamper with, disassemble, decompile, or modify the HaaS or any software running on the HaaS;
f use, and ensure that all persons who use the HaaS use, the HaaS solely for the Approved Use and in the manner it is designed to be used:
g immediately notify the Company of any loss, theft or damage to the HaaS. The Customer is liable for any loss, theft or damage to the HaaS, however caused;
h not remove, deface or obscure, and not allow any other person to remove, deface or obscure, any marks of identification or ownership or registration on the HaaS;
i effect and maintain standard commercial insurance against standard risks, including fully insuring all HaaS for full replacement value, with the Company’s interest in the HaaS noted on the applicable policy, and not allow anything to be done that might prejudice that insurance.;
j provide the Company with evidence of the Customer’s compliance with clause 4.5i on request by the Company; and
k use all reasonable efforts to protect the Company’s rights in the HaaS, including making it clear to others that the Company (and not the Customer) owns the HaaS;
l not allow the HaaS to become subject to any security, encumbrance or lien of any kind; and
m not allow the HaaS to be used or installed in a way that results in it becoming a fixture to any land, including real property.
4.6. Product Warranty
The product warranty set out at www.waybeyond.io/waybeyond-product-warranty (Product Warranty) applies to the HaaS, provided that:
a the warranty period will be deemed to commence:
i where the Customer is installing the HaaS, when the Company ships the HaaS to the Customer; and
ii where the Company is installing the HaaS, when the Company completes installation of the HaaS;
b if the warranty period expires before the end of the Initial Term, the warranty period will be deemed to be extended until the end of the Initial Term, unless there is an Early Termination, in which case the warranty period will be as set out in the Product Warranty, subject to clause 4.6a (and to avoid doubt, if the Customer exercises the option in clause 13.3cii, the warranty period does not restart);
c in addition to the warranty exclusions set out in the Product Warranty, the Company will have no obligation to repair or replace HaaS that is defective as a result of the Customer’s failure to comply with clause 4.5;
d replacements may be either a new or refurbished product; and
e where HaaS needs to be removed for repair or replacement under warranty, the Customer must deinstall the HaaS and return it to the Company, and reinstall the repair or replacement HaaS once the Company delivers it to the Customer.
Without limiting the Company’s rights at law, the Company (or the Company’s agent) is permitted to enter onto the premises at which the HaaS is installed at any reasonable time to:
a inspect the HaaS; and/or
b where the Customer is in breach of these Terms (including failing to pay any payment when due), to deinstall and repossess the HaaS,
and the Customer must provide the Company (or the Company’s agent) reasonable and safe access to the premises where the HaaS is located for these purposes.
5. PREVIEW SERVICES
In this clause 5, Preview Services means:
a the SaaS Service, if made available by the Company with limited functionality or for a limited time for the purposes of a trial, at no charge or at a reduced cost; and
b any feature of the SaaS Service designated by the Company as early access, beta, pilot, limited release, preview, non-production, evaluation, trial or similar.
5.2. As is basis
The Preview Services are provided on an as is and as available basis, and, despite any other provision in these Terms, all conditions, warranties, guarantees and indemnities in relation to the Preview Services are excluded by the Company to the fullest extent permitted by law.
Despite any other provision in these Terms, the Customer acknowledges that the Company may change or disable all or any part of the Preview Services at any time and for any reason without notice and without liability of any kind.
5.4. No obligation
Nothing in these Terms imposes any obligation:
a on the Customer, at the termination or expiry of the availability of the Preview Services, to sign up to a commercial version of the Preview Services; or
b on the Company:
i at the termination or expiry of the availability of the Preview Services, to provide a commercial version of the Preview Services or an equivalent service; or
ii to include or maintain any feature or part of the Preview Services in the commercial version of the SaaS Service or any other service.
6. CUSTOMER OBLIGATIONS
6.1. Customer Data
The parties acknowledge that the continued performance of the SaaS Service is reliant on the provisions of prompt and accurate Customer Data inputs. On the Company’s reasonable request, the Customer must promptly provide any Required Data (as that term is defined in the Order) specified in the Order.
6.2. General use
The Customer and its personnel must:
a use the Services in accordance with the Agreement solely for:
i the Customer’s own internal business purposes;
ii lawful purposes; and
b not resell or make available the Services to any third party, or otherwise commercially exploit the Services.
6.3. Access conditions
When accessing the SaaS Service, the Customer and its personnel must:
a not impersonate another person or misrepresent authorisation to act on behalf of others or the Company;
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:
i that which the Customer is authorised to access; and
ii to the extent necessary for the Customer and its personnel to use the SaaS Service in accordance with this Agreement; and
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/data protection rights) or is Objectionable, incorrect or misleading.
a Without limiting clause 6.3, no individual other than a Permitted User may access or use the SaaS Service.
b The Customer may authorise any member of its personnel to be a Permitted User by providing that person access to the SaaS Service, in which case the Customer will provide the Company with the Permitted User’s name and other information that the Company reasonably requires in relation to the Permitted User.
c The Customer must procure each Permitted User’s compliance with clauses 6.1 and 6.3 and any other reasonable condition notified by the Company to the Customer.
d A breach of any term of the Agreement by the Customer’s Permitted Users or other personnel is deemed to be a breach of the Agreement by the Customer.
The Customer is responsible for procuring all licences, authorisations and consents required for it and its Permitted Users and other personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.
7.1. Company access to Data
The Customer acknowledges that:
a the Company may require access to the Data to exercise its rights and perform its obligations under the Agreement; and
b to the extent that this is necessary but subject to clause 10, the Company may authorise a member or members of its personnel to access the Data for this purpose.
7.2. Conversational AI Services
a The Customer:
i acknowledges that the SaaS Service may interoperate with third party natural language processing and artificial intelligence services to provide chat-based/conversational features (Conversational AI Services); and
ii acknowledges and agrees that the providers of the Conversational AI Services (Conversational AI Providers) may:
▲ run Data inputted into or outputted by the Conversational AI Services (Conversation Data) through automated content classifiers to create metadata which does not contain Conversation Data;
▲ access and use Conversation Data to provide support, investigate potential platform abuse, or where required by applicable law; and
▲ retain Conversation Data for 30 days for the purposes set out above.
b The Company will not, unless separately agreed by the Customer in writing, allow any Conversational AI Provider to use or retain Conversation Data for artificial intelligence/machine learning training purposes.
The Customer must arrange all consents and approvals that are necessary for:
a the Company to access the Data as described in clause 7.1; and
b the Conversational AI Providers to access and use Conversation Data as described in clause 7.2aii.
7.4. Analytical Data
The Customer acknowledges and agrees that:
a the Company may:
i use Data and information about the Customer’s use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
ii use Analytical Data for the Company’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights.
b the Company’s rights under clause 7.4aii will survive termination of expiry of the Agreement; and
c title to, and all Intellectual Property Rights in, Analytical Data is and remains the Company’s property.
7.5. Agent / Data Processor / Service Provider
a The Customer acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, the Company is acting as an agent of, and/or data processor for, and/or service provider to, the Customer for the purposes of applicable privacy and data protection laws. The Customer must obtain all necessary consents from the relevant individual to enable the Company to collect, use, hold and process that information in accordance with the Agreement.
b The Customer acknowledges and agrees that, to the extent Conversation Data contains Personal Information, a Conversational AI Provider that collects, holds, processes, or discloses that information is not acting as an agent of, and/or data processor for, and/or service provider to, the Customer for the purposes of applicable privacy and data protection laws. The Customer must not input Personal Information into, or request Personal Information using, Conversational AI Services unless the Customer has obtained all necessary consents from the relevant individual to enable the Conversational AI Provider to collect, use, hold and process that information for the purposes of providing the Conversational AI Services and the purposes described in clause 7.2aii.
7.6. Backups of Data
While the Company will take standard industry measures to back up all Data stored using the Services, the Customer agrees to keep a separate back-up copy of all Data uploaded by it onto the SaaS Service.
7.7. International storage of Data
The Customer agrees that the Company may store Data (including any Personal Information) in secure Amazon Web Services (AWS) servers, which have data centres in a number of jurisdictions including the United States of America and Japan, and may access that Data (including any Personal Information) in United States of America, Japan and New Zealand from time to time.
The Customer indemnifies the Company against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by the Company’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/data protection rights) or that the Data is Objectionable, incorrect or misleading.
The Customer must pay the Company the Fees.
8.2. Invoicing and payment
a The Company will provide the Customer with valid tax invoices on the dates set out in the Payment Terms, or if there are none, quarterly in advance for the Fees due.
b The Fees exclude taxes, which the Customer must pay on taxable supplies under the Agreement.
c The Customer must pay the Fees:
i on the dates set out in 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.
8.3. Overdue amounts
The Company 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 Company’s primary trading bank as at the due date (or, if the Company’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.
a By giving at least 90 days’ notice, the Company may increase the Fees once each Year (but not the first Year). Fees updated under this clause are deemed to be the Fees set out in the Order.
b If the Customer does not wish to pay the increased Fees, it may terminate the Agreement on no less than 10 days’ notice, provided the notice is received by the Company before the effective date of the Fee increase. If the Customer does not terminate the Agreement in accordance with this clause, it is deemed to have accepted the increased Fees.
9. INTELLECTUAL PROPERTY
a Subject to clause 9.1b, title to, and all Intellectual Property Rights in, the Services and all Underlying Systems is and remains the property of the Company (and its licensors). The Customer 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 Customer. The Customer grants:
i the Company 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 the Company’s rights and performance of its obligations in accordance with the Agreement; and
ii the Conversational AI Providers (as defined in clause 7.2) a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Conversation Data (as defined in clause 7.2) for the purposes of providing the Conversational AI Services and the purposes described in clause 7.2aii.
To the extent not owned by the Company, the Customer grants the Company a royalty-free, transferable, irrevocable and perpetual licence to use for the Company’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by the Company in the provision of the Services.
If the Customer provides the Company 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 Company; and
b the Company may use or disclose the feedback for any purpose.
9.4. Third party sites and data feeds
The Customer acknowledges that the SaaS Service may link to third party websites or data feeds that are connected or relevant to the SaaS Service. Any link from the SaaS Service does not imply any Company 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 Company excludes all responsibility or liability for those websites or feeds.
9.5. Third party Intellectual Property Rights indemnity
a The Company indemnifies the Customer against any claim or proceeding brought against the Customer to the extent that claim or proceeding alleges that the Customer’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 Customer:
i promptly notifying the Company in writing of the IP Claim;
ii making no admission of liability and not otherwise prejudicing or settling the IP Claim, without the Company’s prior written consent; and
iii giving the Company complete authority and information required for the Company to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for the Company’s account.
b The indemnity in clause 9.5a does not apply to the extent that an IP Claim arises from or in connection with:
i the Customer’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 Company; or
iii any third party data or any Data.
c If at any time an IP Claim is made, or in the Company’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, the Company may (at the Company’s option):
i obtain for the Customer 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.
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 10.1a and 10.1b.
10.2. Permitted disclosure
The obligation of confidentiality in clause 10.1 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 Company 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 Company enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 10.
By agreement with the Customer, the Company may, make the following information publicly available, including on its website:
a any Customer testimonial; and
b the identity of the Customer, including its logo.
At least 10 days before making any information publicly available, the Company must provide the Customer with a copy of the Customer testimonial in substantially the form it intends to release publicly to provide the Customer opportunity to request changes necessary to remove any information the Customer considers highly sensitive to its business.
10.4. Treatment of ROI Information
In addition to the obligations of confidentiality, protection and use of information set out in this Agreement, ROI Information must be:
a kept in strictest confidence and only made available to the Company’s staff on a need to know basis;
b used only for the purpose of calculating the Customer’s return on investment for the Services or Related Services; and
c at the request of the Customer, promptly deleted and/or returned to the Customer once return on investment calculations have been completed with the exception of ROI Information contained in system-backup media, such as for example email backup tapes, need not be returned or destroyed so long as the backup media are maintained in confidence and are not readily accessible to users.
As soon as practical after the return on investment calculations have been completed the Company will confirm in writing compliance with clause 10.4c.
11.1. 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.
11.2. No implied warranties
To the maximum extent permitted by law:
a the Company’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; and
b the Company makes no representation concerning the quality of the Services and does not promise that the Services will:
i meet the Customer’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. Parties in trade
The Customer 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, no consumer protection legislation applies to the supply of the Services or the Agreement; and
b it is fair and reasonable that the parties are bound by this clause 11.3.
11.4. 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 Company for any breach of that condition or warranty is limited, at the Company’s option, to:
a supplying the Services again; and/or
b paying the costs of having the Services supplied again.
12.1. Maximum liability
The maximum aggregate liability of the Company 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 Customer under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Customer from the Start Date to the date of the first event giving rise to liability). The cap in this clause 12.1 includes the cap set out in clause 11.2a.
12.2. 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.
12.3. Unlimited liability
a Clauses 12.1, 12.2 and 12.2 do not apply to limit the Company’s liability:
i under the indemnity in clause 9.5a; or
ii under or in connection with the Agreement for:
▲ personal injury or death;
▲ fraud or wilful misconduct; or
▲ a breach of clause 10.
b Clause 12.2 does not apply to limit the Customer’s liability:
i to pay the Fees;
ii under the indemnity in clause 7.8; or
iii for those matters stated in clause 12.3aii.
12.4. 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.
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.
13. TERM, TERMINATION AND SUSPENSION
Unless otherwise terminated under this clause 13, the Agreement:
a starts on the Start Date continues for the Initial Term; and
b at the end of the Initial Term, continues for successive terms of 13 months unless a party gives at least 60 days’ notice to the other party that the Agreement will terminate on the expiry of the then-current term.
13.2 . 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 9.5c are exhausted without remedying or settling the IP Claim, the Company may, by notice to the Customer, immediately terminate the Agreement.
13.3. 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 Customer must pay all Fees for Services provided prior to that termination or expiry.
c If the Company is providing the Customer with HaaS under the Agreement, on termination or expiry of the Agreement prior to the expiry of the Initial Term (Early Termination):
i other than by the Customer under clause 13.2ai or ii or the Company under clause 13.2b, the Customer must pay an early termination fee equal to the Fees that, but for such termination, would have been payable for the period from the date of termination to the date of expiry of the Initial Term; and
ii by the Customer under clause 13.2ai or ii or the Company under clause 13.2b, the Customer will have an option to purchase the HaaS by paying the Company, within 30 days of such termination, a purchase price calculated on the remaining hardware cost plus finance cost remaining on the term.
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 13.3e, 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 Customer may request:
i a copy of any Data stored using the SaaS Service, provided that the Customer pays the Company’s reasonable costs of providing that copy. On receipt of that request, the Company must provide a copy of the Data in a common electronic form. The Company 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 Company must use reasonable efforts to promptly delete that Data.
To avoid doubt, the Company is not required to comply with clause 13.3ei to the extent that the Customer previously requested deletion of the Data.
13.4. Obligations continuing
Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 7.8, 9, 10, 12, 13.3, 13.4 and 14, continue in force.
13.5. Rights to restrict
Without limiting any other right or remedy available to the Company, the Company may restrict or suspend the Customer’s access to the Service and/or delete, edit or remove the relevant Data if the Company considers that the Customer (including any of its personnel) has:
a undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;
b used, or attempted to use, the Service:
i for improper purposes; or
ii in a manner, other than for normal operational purposes, that materially reduces the operational performance of the 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/data protection rights), or that is or may be Objectionable, incorrect or misleading; or
d otherwise materially breached the Agreement.
a The Company must notify the Customer where it restricts or suspends the Customer’s access, or deletes, edits or removes Data, under clause 13.5.
b Clause 13.3di will not apply to the extent that it relates to Data deleted or removed under clause 13.5.
14.1. 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.
14.2. Obligations continue
Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.
14.3. Right to seek relief
This clause 14 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
15.1. 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.
15.2. Rights of third parties
No person other than the Company and the Customer has any right to a benefit under, or to enforce, the Agreement.
To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
15.4. Independent contractor
Subject to clause 7.5, the Company is an independent contractor of the Customer, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
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 Order 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.
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 15.6a 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.
Subject to clause 8.4, any variation to the Agreement must be in writing and signed by both parties.
15.8. 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.
15.9. Subcontracting and assignment
a The Customer may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of the Company, that consent not to be unreasonably withheld. The Customer 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 Customer is deemed to be an assignment for which the Company’s prior written consent is required under clause 15.9a. In this clause change of control means any transfer of shares or other arrangement affecting the Customer or any member of its group which results in a change in the effective control of the Customer.
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.
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.