Subscription Agreement
WHEN & HOW THIS AGREEMENT APPLIES
1. This Agreement applies to your use of the Services. By signing (or submitting to us) an Order Form for the provision of the Services, clicking “I agree” (or similar) in the course of an online sign-up process, or accessing or using the Services:
a. you agree to this Agreement; and
b. where your access and use is on behalf of another person (such as a company), you confirm that you are authorised to agree to this Agreement on that person’s behalf so that person is bound by this Agreement.
2. If you do not agree to this Agreement, you are not authorised to access and use the Services, and you must immediately stop doing so.
3. We are not bound by this Agreement until we have accepted it. Our acceptance occurs when we notify you by email that we accept your Order Form or we commence supplying the Services to you (whichever occurs first). If, after we have accepted this Agreement, you submit a subsequent Order Form to us, we are not bound by that Order Form until we notify you by email that we accept that Order Form, or commence supplying the relevant Services to you (whichever occurs first).
4. This Agreement applies to any terms included, or incorporated by reference, in any request for quote, purchase order or other correspondence between us.
INTERPRETATION
5. In this Agreement:
a. words in the singular include the plural and vice versa.
b. a reference to 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.
c. the following words have the following meanings:
Agreement
this Subscription Agreement, including the Schedules and the Order Forms.
Affiliate
our authorised resellers, distributors, integration partners and similar.
Business Day
as set out in the Published Service Levels.
Business Hours
as set out in the Published Service Levels.
Confidential Information
any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Services. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the Underlying Systems. Your Confidential Information includes the Content.
Content
means all data, content, and information (including personal information) owned, held, used or created by you or your Permitted Users or on your or your Permitted Users’ behalf that is stored or processed using, or inputted into, the Platform Services.
Extended Hours
as set out in the Published Service Levels.
Fees
the fees for Paid Services (including any feature of Paid Services that you subsequently subscribe to), as set out in the Order Form or as agreed otherwise in writing with us, and as may be updated from time to time in accordance with this Agreement.
Force Majeure
an event that is beyond the reasonable control of a party, excluding:
(i) an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
(ii) a lack of funds for any reason.
Intellectual Property Rights
includes copyright and all rights 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.
Minimum Terms
the minimum terms set out in the Schedule, as updated by us from time to time by notice to you.
Objectionable
includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
Order Form
an ordering document or online order specifying the Services to be provided under this Agreement that is entered into between you and us, including any documents attached to that document or order.
Out of Hours
as set out in the Published Service Levels.
Overage Charges
the applicable Fees for use of the Services in excess of the limits stated in the Order Form.
Paid Service
a Platform Service offered under a fees-based plan.
Party
includes that party’s permitted assigns.
Permitted Users
your Personnel and, if you are a company, your Related Companies and your Related Companies’ personnel who are authorised to access and use the Platform User Interface on your behalf in with this Agreement.
Person
includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
Personal information
means information about an identifiable, living person.
Personnel
includes officers, employees, contractors and agents, but a reference to your personnel does not include us.
Platform Services
the products and services that are ordered by you under an Order Form or provided to you as Trial Services and that are made available online by us, including associated offline or mobile components, but excluding Support Services.
Platform User Interface
the user interface areas of the Platform Services that are accessible by you and your Permitted Users using a User ID.
Product Documentation
the product description statement, architectural documentation and/or other product information relating to the Platform Services that we provide to you.
Published Service Levels
the service level documentation for the Platform Services set out in the Product Documentation.
Related Company
as set out in section 2(3) of the Companies Act 1993 (read as if the expression “company” in that subsection included any body corporate of any jurisdiction).
Sales Tax
sales tax, value added tax, goods and services tax, or equivalent tax payable under any applicable law.
Services
the Platform Services and the Support Services.
Support Services
non-automated services that are provided by us to support and maintain the Platform Services and to assist you in your use of the Platform Services.
Start Date
the date we accept this Agreement in accordance with clause 3.
Trial Services
the Platform Services provided to you under a trial (which may include services which are designated as beta, pilot, limited release, developer preview, non-production, evaluation, or similar), as set out in an Order Form or otherwise made available by us to you.
Underlying Systems
the IT solutions, systems and networks (including software and hardware) used to provide the Platform Services, including any third party solutions, systems and networks.
User ID
a unique name and/or password allocated to you or a Permitted User to allow you or that Permitted User to access certain parts of the Platform Services.
We, us or our
Flock Consulting Limited, a New Zealand company registered under number 7382656, trading as Reportabl.
Year
a 12-month period starting on the Start Date or the anniversary of that date.
You or your
you or, if clause 1.b applies, both you and the other person on whose behalf you are acting.
SERVICES
6. We will provide the Services in accordance with this Agreement and applicable laws including we will:
a. exercise reasonable care, skill and diligence; and
b. use suitably skilled, experienced and qualified personnel.
c. use reasonable efforts to ensure the Platform Services are available on a 24/7 basis. However, it is possible that on occasion the Platform Services may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. Planned outages will occur outside Business Hours only. We must use reasonable efforts to publish through the Platform User Interface or notify you by email in advance of any planned outage.
7. We must provide Platform Services for use for production purposes in accordance with the Product Documentation in all material respects. We may change the Product Documentation at any time by notifying you of the change by email and/or by posting a notice through the Platform User Interface, provided the change has no material adverse effect on you. Unless stated otherwise, this change will take effect from the date set out in the notice. If a third party feature provider changes the terms on which it provides that feature to us, we may change the terms in this Agreement as we consider necessary (acting reasonably).
8. We may, if specified in the Order Form, make available optional services that enable the Platform Services to be delivered using third party messaging channel and/or inter-operate with a range of third party service features (Integration Add Ons). We do not make any warranty or representation on the availability or performance of those features. Without limiting the previous sentence:
a. if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make the relevant messaging channel or Integration Add On available to you.
b. If we cease the availability of a such a channel or Integration Add On where we are charging you a fee for that channel or Integration Add On as a separate item from the Fees for the core Platform Services (Add On Fee):
i. we will cease charging you any portion of the Add On Fee that represents a pass-through of third party costs incurred by us for the use of the third party feature, with effect from the date the third party feature provider ceases charging us that fee; and
ii. we will cease charging you any portion of the Add On Fee that is not a pass-through of third party costs, with effect from the date we cease the availability of the Integration Add On; and
iii. no other refund, discount or other compensation shall be payable by us.
TRIAL SERVICES
9. Where you or your Permitted Users use Trial Services:
a. the Trial Services are provided on an “as is” basis, and, despite any other provision in this Agreement, all liability, conditions, warranties and guarantees in relation to the Trial Services are excluded by us to the maximum extent permitted by law;
b. no Fees are payable for the right to access and use the Trial Services until the end of the advertised trial or availability period, for which you may be charged as set out in the Order Form;
c. the right to access and use the Trial Services will end at the end of the advertised trial or availability period (if applicable);
d. either party may terminate your and your Permitted Users’ right to access and use the Trial Services at any time by giving notice to the other party;
e. nothing in this Agreement requires:
i. you, on termination of the Trial Services, to subscribe to Paid Services or any other service provided by us; or
ii. us, on termination of the Trial Services, to provide you or your Permitted Users with access and use of the Services or any other service, unless you have subscribed to Paid Services; and
f. except as set out in this clause, this Agreement applies to you and your Permitted Users’ access and use of the Trial Services.
SUPPORT
10. If the Order Form specifies that we are providing Support Services to you, we will provide Support Services in accordance with clauses 11 to 15 and the Published Service Levels. We may change the Published Service Levels from time to time by changing the Product Documentation in accordance with clause 7, provided the change has no material adverse effect on you.
11. Where you require Support Services, you may place a request for Support Services in accordance with clause 13 c (Support Request). Subject to the remainder of clauses 12 to 15, on receipt of a Support Request, we will:
a. provide telephone and email support in the form of consultation, assistance and advice; and
b. use reasonable efforts to assist in the resolution of the issue (taking into account the nature and severity of the issue), which may include providing a work around.
12. Support Services during Business Hours are included in the Fees. Support Services during Extended Hours and/or Out of Hours may be included in the Fees and/or subject to an additional charge, as set out in the Order Form. If we agree to provide Support Services outside of the hours agreed to in the Order Form, we will invoice you for (and you must pay for) those Support Services at the rates set out in the Order Form.
13. Our provision of Support Services is conditional on:
a. there being no overdue Fees that have not been paid within 10 days of us giving you notice of the overdue amount and not otherwise in breach of any of this Agreement;
b. you first using reasonable efforts to resolve the issue using any documentation or other information made available by us (including through the Platform User Interface) to enable you and your Permitted Users to use the Platform Services;
c. you logging a request for support via email or other method as supplied by us; and
d. you providing us with all information and access reasonably required to enable us to provide the requested Support Services.
14. Our Support Services do not include the development or provision of new features or functionality (including new integrations). Nothing in this Agreement requires us to provide Support Services where support is required as a result of:
a. a breach of this Agreement by you or a Permitted User; or
b. the use of the Platform Services in a manner or for a purpose not reasonably contemplated by this Agreement and not otherwise authorised in writing by us.
15. Any response and/or resolution times provided by us (in this Agreement or otherwise) are targets only and we will have no liability to you for any failure to meet those response and/or resolution times. Our liability for any failure to provide Support Services in accordance with this Agreement is limited to resupplying the Support Services to the extent required to remedy the failure. This obligation, and your rights of termination set out in this Agreement are your sole remedies under this Agreement for any failure to provide Support Services in accordance with this Agreement.
PRODUCT ENHANCEMENTS
16. At your request, we may from time to time agree to develop or provide new features or functionality, subject to:
a. you and us agreeing (or you and us agreeing with an Affiliate) the terms and conditions that are to apply to the development and/or provision of such features or functionality. In some cases, a separate professional services agreement and a statement of work may need to be entered into to govern the development and/or provision of such features or functionality;
b. you paying the applicable fees; and
c. us owning all intellectual property rights in such new features or functionality.
PERMITTED USERS
17. No individual other than a Permitted User may access or use the Platform User Interface.
18. You may authorise any member of your personnel and, if you are a company, any Related Company and any member of your Related Companies’ personnel to be a Permitted User, in which case you must provide us with the Permitted User’s name and other information that we reasonably require in relation to the Permitted User. You must procure each Permitted User’s compliance with clauses 19 and 20 and any other reasonable condition notified by us to you.
19. You and your Permitted Users must:
a. use the Services in accordance with this Agreement solely for:
i. in the case of Paid Services, the products and services set out in the Order Form;
ii. your and, if you are a company, your Related Companies’ own business purposes; and
iii. lawful purposes (including complying with any anti-spam laws and regulations); and
b. except expressly as set out in this Agreement, not resell or make available the Services to any third party, or otherwise commercially exploit the Services.
20. When accessing the Platform Services, you and your Permitted Users must:
a. keep your and their User IDs secure including not disclosing it or permitting any third party to use it, and notify us immediately on becoming aware that any person has unauthorised access or use of your or their User ID;
b. not impersonate another person or misrepresent authorisation to act on behalf of others or us;
c. correctly identify the sender of all electronic transmissions;
d. not attempt to undermine the security or integrity of the Platform Services or the Underlying Systems;
e. not use, or misuse, the Platform Services in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Platform Services;
f. not attempt to view, access or copy any material or data other than:
i. that which you and they are authorised to access; and
ii. to the extent necessary for you and them to use the Services in accordance with this Agreement;
g. neither use the Platform Services in a manner, nor transmit, input or store any Content, that breaches any third party right (including Intellectual Property Rights and rights of privacy or publicity) or is Objectionable, incorrect or misleading;
h. not remove any copyright notice, trade mark or other proprietary indication appearing on or in relation to the Platform Services; and
i. not decompile, disassemble, reverse engineer or otherwise attempt to derive the source code of any software from object code except to the extent expressly permitted by applicable law or treaty despite this limitation.
21. A breach of any of this Agreement by any of your Related Companies or your or your Related Companies’ personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of this Agreement by you. You warrant to us that, prior to making any third party services interact or integrate with our Services, you must have ensured that their terms of use are consistent with this Agreement.
22. You are responsible for ensuring you have:
a. all equipment, facilities and services (including internet access) required to enable you to access and use the Platform Services; and
b. all licenses, authorisations and consents required for you, your Permitted Users to use the Platform Services, including to use, store and input Content into, and process and distribute Content through, the Platform Services.
CONTENT
23. You agree that we (including our personnel) may collect, use, hold and process Content (or material which is the same as or similar to the Content):
a. to perform our obligations and exercise our rights under this Agreement during the term of this Agreement and for a decommissioning period of no more than 30 days following its expiry or termination;
b. to build and improve the data models and algorithms contained within the Platform Services through the use of machine learning processes and techniques,
c. to be incorporated into the data models and algorithms that are used by the Platform Services to understand and generate natural language;
d. both during the term of this Agreement and following its expiry or termination, be further improved through the use of machine learning processes and AI techniques; and
e. be used on an aggregate and anonymous basis, for our internal research, analytical and product development purposes, and to conduct statistical analysis and identify trends and insights, including publishing anonymised results and supplying anonymised results to third parties, both during the term of this Agreement and following its expiry or termination.
24. We will not be required to delete Content contained in archived computer system backups made in accordance with our standard security and/or disaster recovery procedures.
25. To the extent permitted by law, the parties agree that in collecting, holding and processing your personal information through the Services in accordance with clause 23, we are acting as your agent for the purposes of the Privacy Act 1993 and any other applicable privacy law.
26. You must arrange all consents and approvals that are necessary for us to collect, use, hold and process the Content as described in clause 23.
27. You acknowledge that we do not offer back up services.
28. You agree that we may store and access Content provided to us for testing purposes (including any personal information included in that Content) in non-production environments in secure servers in Australia or New Zealand (at our discretion).
29. You agree that we may store and access personal information in secure servers in Australia or New Zealand (at our discretion) only, unless otherwise agreed in writing. You agree that we may delete, edit or remove Content and other personal information if we consider (acting reasonably) that we are required to do so to comply with applicable law.
FEES
30. You must pay us the Fees:
a. unless otherwise set out in the Order Form, in advance of the Services being enabled or provided or the subscription period to which the Fees relate (as applicable) (except for Overage Charges and additional Support Services provided under clause 13, which are payable on the terms stated in the Order Form); and
b. electronically in cleared funds, without any set-off or deduction.
31. Fees for Platform Services may be based on the size of Service offering that you are using from time to time and Platform Services may be subject to usage limits and Overage Charges (e.g. concurrent sessions, monthly messages), as set out in the Order Form.
32. The Fees exclude Sales Tax, which you must pay on taxable supplies.
33. Unless otherwise set out in the Order Form, we will invoice you for the Fees monthly in advance (except for Overage Charges and Support Services provided under clause 12, which will be invoiced monthly in arrears).
34. We may charge interest on overdue amounts. Before charging interest, we will give you notice of the overdue amount. If you do not pay the overdue amount within 10 days of our notice, interest will be calculated from the 10th day after the date of the notice to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or, if our 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.
35. We may increase the Fees by giving at least 30 days’ notice. If you do not wish to pay the increased Fees, you may terminate this Agreement in accordance with clause 56. If you do not so terminate this Agreement, you are deemed to have accepted the increased Fees.
INTELLECTUAL PROPERTY
36. Subject to clause 37, title to, and all Intellectual Property Rights in, the Services, is and remains our property (and the property of our licensors). You must not dispute that ownership.
37. Title to, and all Intellectual Property Rights in, the Content remains your property (or, where applicable, the property of your licensors).You grant us a worldwide, non-exclusive, fully paid up, non-transferable (except as set out in clause 77), irrevocable license to use, store, copy, modify, make available and communicate, and to allow our third party service providers that provide, host or maintain the Underlying Systems to use, store, copy, modify, make available and communicate, the Content for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with this Agreement.
38. To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
39. If you provide us with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
a. all Intellectual Property Rights in anything we create as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
b. we may use or disclose the feedback for any purpose.
40. You acknowledge that the Platform Services may link to third party websites or feeds that are connected or relevant to the Platform Services. Any link from the Platform Services does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
INDEMNITIES
41. We indemnify you from and against any claim or proceeding brought against you to the extent that claim or proceeding alleges that your use of the Platform Services in accordance with this Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim).The indemnity is subject to you:
a. promptly notifying us in writing of any IP Claim;
b. making no admission of liability and not otherwise prejudicing or settling the IP Claim, without our prior written consent; and
c. giving us complete authority and information required for us to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for our account.
42. The indemnity in clause 41 does not apply to the extent that an IP Claim arises from or in connection with:
a. a breach of this Agreement by you or a Permitted User;
b. the use of the Platform Services in a manner or for a purpose not reasonably contemplated by this Agreement and not otherwise authorised in writing by us;
c. any Content; or
d. the combination or use of the Platform Services with any other device, service, software or system not provided by us if such infringement would not have arisen but for that combination or use.
43. If at any time an IP Claim is made, or in our reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, we may (at our option):
a. obtain for you the right to continue using the items that are the subject of the IP Claim;
b. modify, re-perform or replace the items that are the subject of the IP Claim so they become non-infringing; or
c. if we cannot achieve the remedies in clauses 43 a or 43 b using commercially reasonable efforts, terminate this Agreement.
44. You indemnify us harmless against any liability, claim, proceeding, cost, expense (including the reasonable actual legal fees charged by our attorneys) and loss of any kind suffered or incurred by us arising from:
a. any actual or alleged claim by a third party that any Content infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Content is Objectionable, incorrect or misleading;
b. any warranty, representation or indemnity given by you relating to the Platform Services which is inconsistent with the terms of this Agreement or the Minimum Terms; or
c. any breach of the warranty in clause 21.
CONFIDENTIALITY
45. 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, clauses 45.a and 45.b.
46. The obligation of confidentiality in clause 45 does not apply to any disclosure or use of Confidential Information:
a. for the purpose of performing a party’s obligations, or exercising a party’s rights, under this 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 from a third party without restriction and without breach of any obligation of confidentiality; or
e. by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than clause 45.
47. We may use your name and logo on our marketing website(s)(including www.reportabl.io) and in any other marketing or publicity material for the purpose of identifying that you are or have been our customer. Any such usage must be in accordance with any usage and marketing guidelines provided by you from time to time and must not be Objectionable or otherwise commercially harmful to you.
WARRANTIES
48. Each party warrants that it has full power and authority to enter into, and perform its obligations, under this Agreement. To the maximum extent permitted by law:
a. our warranties are limited to those set out in this Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded; and
b. except as set out in this Agreement, we make no representation concerning the quality of the Services and do not promise that the Services (including information generated through your use of the Services) will:
i. meet your requirements or be suitable for a particular purpose, including that the use of the Services will fulfil or meet any statutory role or responsibility you may have; or
ii. be secure, free of viruses or other harmful code, uninterrupted or error free.
c. You agree and represent that you are acquiring the Services, and accepting this Agreement, for the purpose of a business and that no consumer protection legislation (including the New Zealand Consumer Guarantees Act) applies to the supply of the Services to you or this Agreement.
d. Where legislation or rule of law implies into this Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in this Agreement. However, our liability for any breach of that condition or warranty is limited, at our option, to:
i. supplying the Services again; and/or
ii. subject to clause 49, paying the costs of having the Services supplied again.
LIABILITY
49. Each party’s maximum aggregate liability under or in connection with this Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed an amount equal to the Fees paid by you relating to the Services in the 3 month period prior to the date of the first event giving rise to liability.
50. Neither party is liable to the other under or in connection with this Agreement or the Services for any:
a. loss of profit, revenue, savings, business, use, data (including Content), and/or goodwill; or
b. consequential, indirect, incidental or special damage or loss of any kind.
51. We are not liable to you under or in connection with this Agreement if any undisputed Fees have not been paid.
52. Clauses 49 and 50 do not apply to exclude or limit our liability:
a. under the indemnity in clause 41;
b. for breach of Intellectual Property Rights;
c. under or in connection with this Agreement for:
i. personal injury or death;
ii. fraud, wilful or unlawful misconduct; or
iii. breach of clause 50; or
d. that cannot be excluded or limited at law.
53. Clause 50 does not apply to limit your liability:
a. to pay the Fees;
b. under the indemnities in clause 44;
c. for breach of Intellectual Property Rights;
d. for those matters stated in clause 52 c.
54. Neither party will be responsible, liable, or held to be in breach of this Agreement for any failure to perform its obligations under this Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under this Agreement, or by the negligence or misconduct of the other party or its personnel.
55. 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 this Agreement or the Services.
TERM, TERMINATION AND SUSPENSION
56. Unless terminated earlier in accordance with this Agreement and unless otherwise set out in the Order Form, this Agreement:
a. starts on the Start Date;
b. continues until either one of us gives the other party 30 days prior notice in writing, in which case the date of termination shall be the 30th day following the date of such notice.
57. Either party may, by notice to the other party, immediately terminate this Agreement if the other party:
a. breaches any material provision of this Agreement and the breach is not:
i. remedied within 10 days of the receipt of a notice from the first Party requiring it to remedy the breach; or
ii. capable of being remedied; or
b. 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.
58. In addition to our other rights of termination, either party may terminate this Agreement immediately on notice if required to enable that party to comply with any change to applicable laws or regulations.
59. Termination of this Agreement does not affect either party’s rights and obligations that accrued before that termination.
60. On termination of this Agreement you must pay all Fees for the Services provided to you prior to that termination and we will refund prepaid Fees to the extent those Fees relate to any period after termination.
61. No compensation is payable by us to you as a result of termination of this Agreement for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid except as set out in clause 60 or as required by law.
62. Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of this 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.
63. Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Platform Services and/or delete, edit or remove the relevant Content if we consider (acting reasonably) that:
a. you or any of your personnel have:
i. undermined, or attempted to undermine, the security or integrity of the Platform Services or any Underlying Systems;
ii. used, or attempted to use, the Platform Services:
· for improper purposes; or
· in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Platform Services;
iii. transmitted, inputted or stored any Content that breaches or may breach this Agreement or any third party right (including Intellectual Property Rights and rights of privacy or publicity), or that is or may be Objectionable, incorrect or misleading; or
iv. otherwise materially breached this Agreement; and
any such matter is not remedied within 10 days of the receipt of a notice from us requiring you to remedy the matter; or
b. an immediate restriction, suspension, deletion, edit or removal is required in order to protect the security or integrity of the Platform Services or any Underlying Systems or to comply with applicable law.
DISPUTES
64. Both parties must use their best efforts to resolve any dispute that may arise under, or in connection with, the Agreement through good faith negotiations. If the parties are unable to resolve a dispute by negotiation within a reasonable period of time, either party may require the dispute to be escalated for resolution by their chief executives or equivalent officers.
65. If a dispute is unable to be resolved under clause 64 within 10 Business Days of escalation or such longer period as the parties agree, either party may refer the dispute to mediation by notice to the other party, in which case:
a. The mediation will be subject to the Mediation Protocol of the Arbitrators' and Mediators' Institute of New Zealand Inc. (AMINZ).
b. The mediation will be conducted at a venue and in a manner (such as online) of our selection, by an independent mediator and at a fee agreed to by each party.
c. The cost of the mediator will be borne in equal proportions by the parties.
d. If the parties cannot agree on the mediator and/or the mediator’s fee within 5 Business Days of the referral of the dispute to mediation, the mediator will be selected, and/or the mediator’s fee will be determined, by the President of AMINZ.
66. Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute. These Dispute clauses do not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
CHANGES
67. We may change the terms in this Subscription Agreement at any time:
a. as we consider (acting reasonably) is required as a result of any change in applicable laws;
b. where the change has no material adverse effect on you; or
c. as set out in clause 8 b.
68. Where we make a change referred to in clause 67, we will notify you of the change by email and by posting a notice within the Platform User Interface. Unless stated otherwise, any change takes effect from the date set out in the notice.
a. You are responsible for ensuring you are familiar with the latest Subscription Agreement. By continuing to access and use the Services from the date on which the Terms are changed, you agree to be bound by the changed Master Subscription Agreement.
b. This Subscription Agreement was last updated on July 2020.
GENERAL
69. Neither party is liable to the other for any failure to perform its obligations under this Agreement to the extent caused by Force Majeure.
70. No person other than you and us has any right to a benefit under, or to enforce, this Agreement.
71. For us to waive a right under this Agreement, that waiver must be in writing and signed by us.
72. Subject to clause 25, we are independent contractor with you, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under this Agreement.
73. If we need to contact you, we may do so by email or by posting a notice within the Platform User Interface. You agree that this satisfies all legal requirements in relation to written communications.
74. This Agreement, and any dispute relating to this Agreement or the Services, are 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 this Agreement or the Services.
75. If any part or provision of this Agreement is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from this Agreement. The remainder of this Agreement will be binding on you and us.
76. Except as expressly set out otherwise in this Agreement, any variation to this Agreement must be in writing and signed by both parties.
77. Neither party may assign, novate, subcontract or transfer any right or obligation under this Agreement other than to a Related Company without the other party’s prior written consent, that consent not be unreasonably withheld. You remain liable for your obligations under this Agreement despite any approved assignment, subcontracting or transfer.