INTERPRETATION

  • Definitions: In the Service Agreement, the following terms have the stated meaning:
Term Meaning
Service Agreement Unleashed Integration Subscription Order Details (Service Agreement and Unleashed Integration Subscription Order Details and (General Terms).
Confidential Information the terms of the Service 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 Service Agreement.  Intellectual Property owned by the Supplier (or its licensors), including the Unleashed Integration Service, is the Supplier’s Confidential Information.  The Data is the Client’s Confidential Information.
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 Unleashed Integration Subscription Service.
Fees the fees set out in the Unleashed Integration Subscription Order Details, as updated from time to time in accordance with clause 5.4.
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.

GST goods and services tax, value added tax, sales tax, or any equivalent tax, applicable to the supply of the Services.
Intellectual Property Rights includes copyright and all worldwide rights 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.
Unleashed Integration Subscription Order Details the Service Agreement specific details set out in Unleashed Integration Subscription Order Details of the Service Agreement.
Logon the online access at the domain set out in the Unleashed Integration Subscription Order Details, or such other site notified to the Client by the Supplier.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, potentially harmful, or unlawful in any way.
Payment Terms the payment terms set out in the Unleashed Integration Subscription Order Details (if any).
Personal Information information about an identifiable individual.
Integration Service the service having the core functionality provided to the Client via the Logon to our Unleashed Integration Platform.
Unleashed Integration Service the software owned by the Supplier (and its licensors) that is used to provide the Unleashed Integration Service.
Services the Unleashed Integration Service, the Support Services and any additional services that the Supplier agrees to provide to the Client under the Service Agreement.
Start Date the start date set out in the Unleashed Integration Unleashed Integration Subscription Order – Commencement of Service Details.
Subscription Term the subscription term set out in the Unleashed Integration Subscription Order Details.
Support Services has the meaning given in clause 8.1.
Third Party Applications the third party applications set out in the Unleashed Integration Subscription Order Details in the description of the Unleashed Integration Subscription Service, as may be updated from time to time on written Service Agreement of the parties.
Underlying Systems the Unleashed Integration Service, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
User A user of the Unleashed Integration Subscription Service.  A ‘user’ will be identified by an individual email address. These are ‘named users’ e.g. one ‘licence’ per person.
Year a 12 month period starting on the Start Date or the anniversary of that date.
  • 1 Interpretation: In the Service Agreement:
    • 1.1 clause and other headings are for ease of reference only and do not affect the interpretation of the Service Agreement;
    • 1.2 words in the singular include the plural and vice versa;
    • 1.3 a reference to:
      • a) a party to the Service Agreement includes that party’s permitted assigns;
      • b) personnel includes officers, employees, contractors and agents, but a reference to the Client’s personnel does not include the Supplier;
      • c) 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;
      • d) including and similar words do not imply any limit; and
      • e) 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;
    • 1.4 no term of the Service Agreement is to be construed against a party because the term was first proposed or drafted by that party; and
    • 1.5 if there is any conflict between and Unleashed Integration Subscription Order Details of the Service Agreement, Unleashed Integration General Terms and Conditions prevails unless expressly stated otherwise in Unleashed Integration Subscription Order Details.
  • 2 SERVICES
    • 2.1 General: The Supplier must use best efforts to provide the Services:
      • a) in accordance with the Service Agreement and New Zealand law;
      • b) exercising reasonable care, skill and diligence; and
      • c) using suitably skilled, experienced and qualified personnel.
    • 2.2 Non-exclusive: The Supplier’s provision of the Services to the Client is non-exclusive.  Nothing in the Service 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 Unleashed Integration Subscription Service is available on a 24/7 basis. However, it is possible that on occasion the Unleashed Integration Subscription 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 notify the Client advance details of any unavailability.
      • b) Through the use of web services and APIs, the Unleashed Integration Subscription Service interoperates with a range of third party service features. The Supplier does not make any warranty or representation on the availability of those features.  Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, the Supplier may cease to make available that feature to the Client.  To avoid doubt, if the Supplier exercises its right to cease the availability of a third party feature, the Client is not entitled to any refund, discount or other compensation.
      • c) The Supplier does not make any warranty or representation as to the availability or operability of any third party application (including Third Party Applications).
    • 2.4 Additional services:
      • a) The Supplier may, from time to time, make available additional services to supplement the Unleashed Integration Subscription Service.
      • b) At the request of the Client and subject to the Client paying the applicable Fees, the Supplier may agree to provide to the Client those additional services on the terms of the Service Agreement.
  • 3 CLIENT OBLIGATIONS
    • 3.1 General use: The Client and its personnel must:
      • a) use the Services in accordance with the Service Agreement solely for:
        • i) the Client’s own internal business purposes; and
        • ii) lawful purposes (including complying with any applicable anti-spam laws and regulations);
      • b) not resell or make available the Services to any third party, or otherwise commercially exploit the Services; and
      • c) use any Third Party Applications in accordance with the applicable third party service providers’ terms of use.
    • 3.2 Access conditions: When accessing the Unleashed Integration Subscription 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 Unleashed Integration Subscription Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Unleashed Integration Subscription Service;
      • e) not attempt to view, access or copy any material or data other than that to which the Client is authorised to access; and
      • f) neither use the Unleashed Integration Subscription Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and
      • g)comply with the maximum number of Users permitted under the relevant Fees option.
    • 3.3 Personnel: A breach of any term of the Service Agreement by the Client’s personnel is deemed to be a breach of the Service Agreement by the Client.
    • 3.4 Authorisations:
      • a) 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.
      • b) The Client must arrange all consents and approvals that are necessary to enable the Supplier to use the Third Party Applications for the purpose of providing the Services.
  • 4 DATA
    • 4.1 Supplier access to Data:
      • a) The Client acknowledges that:
        • i) the Supplier may require access to the Data to exercise its rights and perform its obligations under the Service Agreement; and
        • ii) to the extent that this is necessary but subject to clause 7, the Supplier may authorise a member or members of its personnel to access the Data for this purpose.
      • The Client must arrange all consents and approvals that are necessary for the Supplier to access the Data as described in clause 4.1a.
    • 4.2 Agent:
      • a) The Client acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, the Supplier is acting as an agent of the Client for the purposes of the New Zealand Privacy Act 1993 and any other applicable privacy laws and regulations.
      • b) The Client must obtain all necessary consents from the relevant individual to enable the Supplier to collect, use, hold and process that information in accordance with the Service Agreement.
    • 4.3 Backups of Data: While the Supplier will take standard industry measures to back up all Data stored using the Services, the Client agrees to keep a separate back-up copy of all Data uploaded by it onto the Unleashed Integration Subscription Service.
    • 4.4 International storage of Data:  The Client agrees that the Supplier may store Data (including any Personal Information) in secure servers in New Zealand and/or [ ] and may access that Data (including any Personal Information) in those territories from time to time.  The Client acknowledges that the Supplier does not have control of or responsibility for how or where third party service providers of Third Party Applications store or handle data (including Personal Information).
    • 4.5 Client Indemnities: 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:
      • a) 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; or
      • b) any use by the Client of a Third Party Application in breach of any applicable third party terms.
  • 5 FEES
    • 5.1 Fees: The Client must pay to the Supplier the Fees.
    • 5.2 Invoicing and payment:
    • 5.3 The Supplier will provide the Client with valid GST tax invoices on the dates set out in the Payment Terms, or if there are none, monthly in advance for the Fees due for that month.
    • 5.4 The Fees exclude GST, which the Client must pay on taxable supplies under the Service Agreement.
    • 5.5 The Client must pay the Fees:
      • a) on or before the dates set out in the Payment Terms, or if there are none, by the 15th of the month the invoice is dated; and
      • b) electronically in cleared funds without any set off or deduction.
    • 5.6 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.
    • 5.7 Increases
      • a) By giving at least 30 days’ notice, the Supplier may increase the Fees once each Year (but not the first Year) up to the greater of:
        • i) 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; or
        • ii) 10%.
  •        Fees updated under this clause are deemed to be the Fees listed in the Unleashed Integration Subscription Order Details.
    • 5.8 If the Client does not wish to pay the increased Fees, it may terminate the Service Agreement on no less than 20 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 Service 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 6.1b, 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 dispute that ownership.
      • 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 Service Agreement, including to monitor, maintain and improve the Unleashed Integration Subscription Service.
    • 6.2 Know-how: To the extent not owned by the Supplier, the Client grants the Supplier a royalty-free, transferable, irrevocable and perpetual licence to use for the Supplier’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by the Supplier in the provision of the Services.
    • 6.3 Feedback: If the Client provides the Supplier with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
      • a) all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Supplier; and
      • b) the Supplier may use or disclose the feedback for any purpose.
    • 6.4 Third party sites and material: The Client acknowledges that the Unleashed Integration Subscription Service may link to third party websites or feeds that are connected or relevant to the Unleashed Integration Subscription Service.  Any link from the Unleashed Integration Subscription Service does not imply any Supplier endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators.  To the maximum extent permitted by law, the Supplier excludes all responsibility or liability for those websites or feeds.
    • 6.5 Third party Intellectual Property Rights indemnity:
      • a) The Supplier indemnifies the Client against any claim or proceeding brought against the Client to the extent that claim or proceeding alleges that the Client’s use of the Unleashed Integration Subscription Service in accordance with the Service Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to the Client:
        • i) promptly notifying the Supplier in writing of the IP Claim;
        • ii) making no admission of liability and not otherwise prejudicing or settling the IP Claim, without the Supplier’s prior written consent; and
        • iii) giving the Supplier complete authority and information required for the Supplier to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for the Supplier’s account.
      • b) The indemnity in clause 6.5a does not apply to the extent that an IP Claim arises from or in connection with:
        • i) the Client’s breach of the Service Agreement;
        • ii) use of the Unleashed Integration Subscription Service in a manner or for a purpose not reasonably contemplated by the Service Agreement or otherwise not authorised in writing by the Supplier;
        • iii) any third party data or any Data; or
        • iv) any third party applications or any Third Party Applications.
      • c) If at any time an IP Claim is made, or in the Supplier’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, the Supplier may (at the Supplier’s option):
        • i) obtain for the Client the right to continue using the items which are the subject of the IP Claim; or
        • ii) modify, re-perform or replace the items which are the subject of the IP Claim so they become non-infringing.
  • 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 7.1a and 7.1b.
    • 7.2 Permitted disclosure: The obligation of confidentiality in clause 7.1a does not apply to any disclosure or use of Confidential Information:
      • a) for the purpose of performing the Service Agreement or exercising a party’s rights under the Service 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 Service 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 Service Agreement with the third party on terms no less restrictive than this clause 7.
  • 8 SUPPORT SERVICES
    • 8.1 .Except where the parties have entered into a separate support Service Agreement, the Supplier will provide support to the Client in accordance with this clause 8 (Support Services):
    • 8.2 Where the Client considers on reasonable grounds that the Unleashed Integration Subscription Service is not materially performing in accordance with the Service Agreement, the Cient may place a request for support in accordance with clause 8.3 (Support Request). On receipt of a Support Request, the Supplier will use reasonable efforts to assist in the resolution of the issue (taking into account the nature and severity of the issue) by providing telephone and email support in the form of consultation, assistance and advice.  Resolution may include providing a work around.
    • 8.3 The Supplier’s provision of support is conditional on the Client:
      • a) being up to date with all Fees due and not otherwise in breach of the Service Agreement;
      • b) first using reasonable efforts to resolve the issue using any documentation or other information made available by the Supplier to enable the Client to use the Unleashed Integration Subscription Service;
      • c) logging a request for support via one of the following methods:
        • i) email to support@featureit.co.nz ; or
        • ii) telephone on +64 9 475 9761.
      • d) providing the Supplier with all information and access reasonably required to enable it to provide the requested support; and
      • e) liaising with the Supplier through the Client’s authorised contact set out in the Unleashed Integration Subscription Order Details(Authorised Contact).
    • 8.4 Nothing in the Service Agreement requires the Supplier to provide Support Services:
      • a) to any person other than the Authorised Contact;
      • b) where that support is:
        • i) required as a result of:
          • a breach of the Service Agreement by the Client or its personnel; or
          • the use of the Unleashed Integration Subscription Service in a manner or for a purpose not reasonably contemplated by the Service Agreement and not otherwise authorised in writing by the Supplier; or
        • ii) in connection with:
          • any third party application (including Third Party Application); or
          • any data (including Data); or
        • iii) in the nature of training (including computer training, software training, third party application training, any other general technical and/or internet training).
      • c) The Supplier may, at its discretion, provide Support Services which are excluded under clause 8.4. Any such services will be charged at NZD150 per hour.
      • d) Without limiting any other provision of this clause 8, and unless agreed otherwise in writing with the Supplier, a fee of NZD150 per hour (minimum NZD 150) will be charged for any time spent by the Supplier in relation to:
        • i) investigation and analysis of the Support Request or underlying issue;
        • ii) issue resolution, including carrying out modifications to the Unleashed Integration Service to resolve the issue; and/or
        • iii) any communication with the Client and/or third party application (including Third Party Application) service providers.
      • The Supplier’s liability for any failure to provide support in accordance with the Service Agreement is limited to resupplying the Support Services to the extent required to remedy the failure. This obligation sets out the Client’s sole remedy under the Service Agreement for any failure by the Supplier to provide support in accordance with the Service Agreement.
  • 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 Service 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 Service Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise 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:
        • meet the Client’s requirements or be suitable for a particular purpose
        • be secure, free of viruses or other harmful code, uninterrupted or error free.
      • c) Not a consumer: The Client agrees and represents that it is acquiring the Services, and entering the Service Agreement, for the purpose of a business and that any laws and regulations in relation to consumer goods and services do not apply to the supply of the Services or the Service Agreement.
      • d) Limitation of remedies: Where legislation or rule of law implies into the Service Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Service Agreement.  However, the liability of the Supplier for any breach of that condition or warranty is limited, at the Supplier’s option, to:
        • i) supplying the Services again; and/or
        • ii) paying the costs of having the Services supplied again.
  • 10 LIABILITY
    • 10.1 Maximum liability: The maximum aggregate liability of the Supplier under or in connection with the Service 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 Service 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 10.1 includes the cap set out in clause 9.2a.
    • 10.2 Unrecoverable loss: Neither party is liable to the other under or in connection with the Service Agreement or the Services for any:
      • loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
      • consequential, indirect, incidental or special damage or loss of any kind.
    • 10.3 Unlimited liability:
      • a) Clauses 10.1 and 10.2 do not apply to limit the Supplier’s liability:
        • i) under the indemnity in clause 6.5a; or
        • ii) under or in connection with the Service Agreement for:
          • personal injury or death;
          • fraud or wilful misconduct; or
          • a breach of clause 7.
        • iii) Clause 10.2 does not apply to limit the Client’s liability:
          • to pay the Fees;
          • under the indemnities in clause 4.5; or
          • for those matters stated in clause 10.3a ii.
        • iv) No liability for other’s failure: Neither party will be responsible, liable, or held to be in breach of the Service Agreement for any failure to perform its obligations under the Service Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Service Agreement, or by the negligence or misconduct of the other party or its personnel.
        • v) 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 Service Agreement.
  • 11 TERM, TERMINATION AND SUSPENSION
    • 11.1 Duration: Except as otherwise agreed in writing between the parties, unless terminated earlier in accordance with its terms, the Service Agreement starts on the Start Date and continues for successive periods of the Subscription Term, unless and until a party gives no less than 30 days’ notice that the Service Agreement will end on the expiry of the relevant Subscription Term.
    • 11.2 Other Termination rights:
      • a) Either party may, by notice to the other party, immediately terminate the Service Agreement if the other party:
        • i) breaches any material provision of the Service 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 Service Agreement for 30 days or more due to Force Majeure.
      • b) If the remedies in clause 6.5c are exhausted without remedying or settling the IP Claim, the Supplier may, by notice to the Client, immediately terminate the Service Agreement.
    • 11.3 Consequences of termination or expiry:
      • a) Termination or expiry of the Service Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.
      • b) On termination or expiry of the Service Agreement, the Client must pay all Fees for Services provided prior to that termination or expiry.
      • c) No compensation is payable by the Supplier as a result of termination of the Service Agreement for whatever reason, and any Fees paid by the Client prior to termination are non-refundable except to the extent required at law.
      • 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 Service Agreement, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
      • e) At any time prior to one month after the date of termination or expiry, the Client may request:
        • i) a copy of any Data stored using the Unleashed Integration Subscription Service, provided that the Client pays the Supplier’s reasonable costs of providing that copy. On receipt of that request, the Supplier must provide a copy of the Data in a common electronic form.  The Supplier does not warrant that the format of the Data will be compatible with any software; and/or
        • ii) deletion of the Data stored using the Unleashed Integration Subscription Service, in which case the Supplier must use reasonable efforts to promptly delete that Data.
    • 11.4 Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of the Service Agreement, including clauses 4.5, 6, 7, 10, 11.3, 11.4, and 12, continue in force.
    • 11.5 Suspending access: Without limiting any other right or remedy available to the Supplier, the Supplier may restrict or suspend the Client’s access to the Unleashed Integration Subscription Service where the Client (including any of its personnel):
      • a) undermines, or attempts to undermine, the security or integrity of the Unleashed Integration Subscription Service or any Underlying Systems;
      • b) uses, or attempts to use, the Unleashed Integration Subscription Service:
        • i) for improper purposes; or
        • ii) in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Unleashed Integration Subscription Service;
      • c) has fallen 2 months in arrears of any Fees; or
      • d) has otherwise materially breached the Service Agreement (in the Supplier’s reasonable opinion).
    • 11.6 Notice: The Supplier must notify the Client where it restricts or suspends the Client’s access under clause 11.5

To avoid doubt, the Supplier is not required to comply with clause 11.3eii to the extent that the Client previously requested deletion of the Data.

Transition services are not dealt with here.  This will need to be addressed on a case-by-case basis if the Client requests them.

  • 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 Service Agreement through good faith negotiations.
    • 12.3 Obligations continue: Each party must, to the extent possible, continue to perform its obligations under the Service Agreement even if there is a dispute.
    • 12.4 Right to seek relief:  This clause 12 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 Service 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.
    • 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 Service Agreement.
    • 13.3 Waiver: To waive a right under the Service Agreement, that waiver must be in writing and signed by the waiving party.
    • 13.4 Independent contractor: Subject to clause 4.2, the Supplier is an independent contractor of the Client, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Service Agreement.
    • 13.5 Notices: A notice given by a party under the Service Agreement must be delivered to the other party via email using the email address set out in the Unleashed Integration Subscription Order Detailsor 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: Any illegality, unenforceability or invalidity of a provision of the Service Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Service Agreement.
    • 13.7 Variation: Any variation to the Service Agreement must be in writing and signed by both parties.
    • 13.8 Entire Service Agreement: The Service 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 Service Agreement relating to the subject matter of the Service Agreement that is not expressly set out in the Service Agreement, and no such representation, warranty or Service Agreement has any effect from the Start Date.  Without limiting the previous sentence, the parties agree that sections 9, 12A and 13 of the New Zealand Fair Trading Act 1986 and, to the extent permitted by law, any other laws or regulations in relation to unreasonable contract terms, do not apply to the Service Agreement.
    • 13.9 Subcontracting and assignment:
      • a) The Client may not assign, novate, subcontract or transfer any right or obligation under the Service 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 Service 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 13.9a. In this clause change of control means any transfer of shares or other arrangement affecting the Client or any member of its group which results in a change in the effective control of the Client.
    • 13.10 Law: The Service 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 Service Agreement.
    • 13.11 Counterparts:  The Service Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same Service Agreement.  A party may enter the Service Agreement by signing and emailing a counterpart copy to the other party.