APPENDIX III Standard Provisions
1 Definitions and interpretation
1.1 In this agreement:
“Additional Support Services” means the provision of additional support services defined in Annexure III.
“Agreed Requirements” means the requirements that are documented by the Supplier and approved by the Customer as being its requirements, as a result of the SOW Services provided under the first Statement of Work.
“Agreement Year” means any twelve-month period commencing on the Effective Date or any anniversary thereof.
“Assura Proposal” means the Supplier’s proposal to the Customer dated [Date].
“Confidential Information” means any information disclosed in confidence to one party by the other party, whether of a business, financial, technical or nontechnical nature or otherwise and whether existing in hard copy form, electronically or otherwise.
“Documentation” means the documentation (whether in hard copy or electronic form) relating to the Software supplied by the Supplier for use with the Software.
“Customisations” means code developed specifically for the Customer pursuant to a separate services agreement and as may be more particularly specified in that agreement or in the Schedule.
“Effective Date” means the date this agreement has been signed by both parties.
“Fair Use” means the definition outlined in Clause 4 of Schedule 2.
“Fault” means a failure by the Software to meet the Agreed Requirements of the Customer or the Specifications;
“Fees” means the respective fees set out in Schedules 1 and 2 and any fees payable under a Statement of Work.
“Go Live” means the date the implementation project covered by one or more Statements of Work has successfully completed user acceptance testing in accordance with the Statement of Work.
“Hosting Services” means the hosting services as specified in Section 5 of Schedule 1 and any other services that are necessary for, or customarily provided as part of, those services.
“Installation” means the instalment of the Software, whether by physical or by remote means, on to the platform that is used to provide the Hosting Services to the state that the Software is ready to be configured for the Customer.
“Licence” means a non-transferable, non-exclusive licence to use the Documentation and Software during the Term (including any renewal period in accordance with this agreement) in the Operating Environment and via the Hosting Services.
“Licence Fee” means the respective fees set out in Schedules 1 and 2.
“Operating Environment” means the operating system and network protocols as described in Schedule 1 that the Customer’s devices must meet in order to access the Software via the Hosting Services.
“Payment Schedule” means the payment schedule specified in Schedule 1.
“Server” means the server specified in Schedule 1.
“Services” means the Hosting Services, the Support Services, the SOW Services, and, if applicable, the Transition Out Services.
“Sites” means the sites specified in Schedule 1.
“Software” means software owned and licensed to the Customer by the Supplier.
“Specifications” means the technical description of the Software set out in the guide provided by the Supplier from time to time.
“Statement of Work” means the written agreement, if any, executed by the parties for the provision of SOW Services relating to the Software.
“SOW Services” means consultancy, implementation, configuration services or other similar services, to be provided by the Supplier as agreed and set out in a Statement of Work.
“Support Charges” means the charges for the support services that are provided outside the standard hours or apply in addition to the Additional Support Services, as specified in Schedule 2.
“Support Portal” means the website (https://support.assurasoftware.co.nz) provided by the Supplier for the purposes of lodging faults and queries.
“Support Services” means the services specified in Schedule 2.
“Support Fee” means the monthly fee payable for the Services set out in Schedule 2;
“System” means the Customer’s operating environment specified in Schedule 1 which the Customer’s devices must meet in order to access the Software via the Hosting Services.
“Term” means the term specified in Schedule 1 and includes any renewal of the Term in accordance with the agreement.
“Type of Use” means the type of use specified in Schedule 1.
“Updates” means enhancements or modifications to improve the basic functionality of the Software but does not include new or additional performance features, functions or enhancements that extend the basic functionality of the Software.
“Upgrades” means any new or additional performance functions or options that extend the basic functionality of the Software.
“Users” means the maximum number of users specified in Schedule 1.
“Warranty Period” means a period of 30 days from the date of Go Live.
“Working Day” means any day of the week other than a Saturday, Sunday or public holiday on which registered banks are open for over the counter business in Christchurch, New Zealand, excluding the period 24 December to 10 January (inclusive) of each year.
1.2 In this agreement unless the context requires otherwise:
(a) references to clauses and schedules are to clauses of and schedules to this agreement;
(b) derivatives of any defined word or term shall have a corresponding meaning;
(c) the headings to clauses shall be ignored in construing this agreement;
(d) the word including and other similar words do not imply any limitation;
(e) any party to this agreement or any other agreement includes its successors and permitted assignees and transferees; and
(f) the plural includes the singular and vice versa.
1.3 Goods and Services Tax: All payments in this agreement are exclusive of Goods and Services Tax (GST). GST will be added to all invoices and payments under this agreement.
2.1 The term and renewal of the agreement is set out in Schedule 1.
The Supplier warrants and confirms that during the Warranty Period when the Software is accessed via the Operating Environment set out in Schedule 1 the Software will perform in all material respects with the Agreed Requirements and Specifications.
4 Charges and Payment
4.1 The Customer shall pay the Supplier all fees as per agreed in Schedule 1, Schedule 2, any agreed Statement of Work or agreed in writing.
4.2 The Supplier has no obligation to make available the Software until payment of the Licence Fee has been received by the Supplier.
4.3 The Supplier may amend its Fees by giving 30 days written notice, provided that it shall not do so within 12 months of the date of execution of this agreement and that no more than once in any 12 month period. Any increase will be limited to a maximum of 5% per annum.
4.4 Upon receipt of the Supplier’s valid invoice the Customer will make payments of undisputed amounts on the 20th day of the month following the date of the invoice or the previous business day if the 20th days falls on a weekend.
4.5 All payments shall have GST added and the Supplier shall provide an invoice to the Customer for GST purposes. Both parties warrant they are and will remain registered for GST purposes.
4.6 Invoices are payable without withholding, deduction or setoff of any kind except in the case of a genuinely disputed invoice in which case the Customer may withhold the amount disputed provided it gives notice to the Supplier that the invoice is disputed within 14 days of receipt of that invoice. Any dispute arising as to the payment of the Fees must be dealt with in accordance with clause 12 of this agreement. Once the disputed payment is resolved the Customer shall pay any outstanding amounts to the Supplier within 14 days of resolution.
4.7 If payment for undisputed amounts is not made on the due date the Supplier may at its option exercise all or any of the following:
(a) suspend providing the Services until payment is made by the Customer;
(b) cancel this agreement after the payment is in default for one calendar month;
(c) charge interest at the rate of 8% per annum on any outstanding amounts, from the date that the amount fell due to the date of actual payment; and
(d) The Customer shall pay the Supplier’s costs, including legal costs on a solicitor and client basis, incurred in collecting any sums due under this agreement (including interest).
5.1 In addition to the provisions of Appendix II, clause 4 above the Supplier warrants that:
(a) It has the authority to enter this agreement;
(b) It possesses the necessary rights to grant the Customer the rights granted pursuant to this agreement;
(c) To the best of its knowledge and belief the Software does not infringe any intellectual property rights of any third party;
5.2 Subject only to clause 5.1 above and the warranties in clause 3, the Supplier gives no other warranties or representations in relation to the Software, its use or operation and all warranties and provisions (including, but not limited to warranties of description, design, merchantability or fitness for a particular purpose) express or implied by statute, common law or otherwise are excluded to the maximum extent permissible. The Customer acknowledges that the Software may not be accessible at all times due to maintenance or repair of the Software (provided that maintenance or repair is carried out in accordance with Schedule 2) or factors outside the reasonable control of the Supplier.
5.3 At the Supplier’s option, in the event of the Customer advising the Supplier in writing of any material defects in the Software during the Warranty Period, the Supplier will:
(a) Replace materially defective Software or;
(b) Repair material defects in the Software without charge,
provided that the Customer has advised the Supplier of such defects in writing as soon as practicable and no later than seven days after the conclusion of the Warranty Period.
5.4 The warranties referred to above do not cover any:
(a) Functionality, or the consequences of any functionality, added to the Software or modifications made to the Software, by the Customer or any third party without the prior approval of the Supplier;
(b) Errors or defects caused in whole or in part by the failure of any hardware or other equipment to function in accordance with the specifications of the applicable manufacturer (other than the equipment used by the Supplier’s hosting partner in respect of the Hosting Services, for which the Supplier is responsible for providing);
(c) Changes to the operating environment of the Customer’s devices that access the Hosting Services that affect the performance of the Software; or
(d) Services or consequences of any services provided by a third party to the Customer in connection with the Software without the prior approval of the Supplier.
6 Limitation of Liability
6.1 A party (the Liable Party) will be liable to the other party under this agreement only for the other party’s losses, costs, expenses and damages (Loss) caused as a direct result of the Liable Party’s breach of this agreement, regardless of whether such claim for Loss arose in tort (including negligence), equity, or otherwise.
6.2 Unless specified otherwise in a Statement of Work, neither party shall be liable to the other party for any loss of profits, revenue, loss of business opportunity, loss of contract, or any consequential or indirect losses or damage arising out of or in connection with this agreement howsoever caused.
6.3 Subject to clauses 6.1 and 6.34, each party’s maximum aggregate liability arising out of or in connection with this agreement, however such liability may arise (including without limitation under tort, equity or otherwise and whether arising out of that party’s negligence) in respect of all events occurring in any Agreement Year shall be limited to the aggregate amount of the Fees payable by the Customer to the Supplier in that Agreement Year.
6.4 Nothing in this agreement limits a party’s liability under or in relation to this agreement:
(a) for any indemnity under clause 7.1 or breach of clause 8;
(b) for any Fees due and owing by the Customer under and in accordance with this agreement;
(c) for fraud, or the wilful breach or misconduct of this agreement by that party.
7.1 Subject to clauses 7.2 and 7.3 below, the Supplier shall indemnify and hold harmless the Customer from direct costs (including reasonable solicitor/client costs) arising from claims, demands and actions alleging that the Software or the Documentation infringes a third party’s intellectual property rights.
7.2 The indemnity referred to in clause 7.1 above shall only apply if the Customer:
(a) Notifies the Supplier in writing as soon as practicable when the allegation of infringement is made to the Customer;
(b) Makes no admission of infringement or liability other than with the express prior written consent of the Supplier;
(c) Gives the Supplier the option to be a party to the defence of the claim;
(d) Provides the Supplier with all reasonable assistance in conducting the defence of the claim (at the Supplier’s cost);
(e) Permits the Supplier to modify, alter or substitute all or part of the Software, at its own expense and at its own discretion, to render the Software non-infringing; and
(f) Authorises the Supplier to procure for the Customer the authority to continue to use the Software.
7.3 The indemnity referred to in clause 7.1 above shall not apply if:
(a) The alleged infringement arises from any modification or alteration to the Software or use of the Software except as expressly permitted by this agreement; or
(b) The Customer is in or has been in breach of any term of this agreement and that breach has given rise to the alleged infringement.
8.1 Each party will:
(a) take all reasonable security safeguards to keep confidential at all times the Confidential Information of the other party;
(b) not use, communicate, make available or resupply the other party’s Confidential Information to any person other than for the purposes of performing this agreement; and
(c) effect and maintain adequate security measures to safeguard the other party’s Confidential Information from access or use by unauthorised persons.
8.2 Neither party may use or disclose any Confidential Information other than:
(a) to its employees, directors or contractors to the extent necessary in the performance of this agreement, or in the case of the Supplier, to its Hosting Services service provider provided that the service provider is subject to equivalent obligations of confidentiality and privacy; or
(b) with the express prior written consent of the other party; or
(c) to its professional advisers.
8.3 The obligations of confidentially do not apply to the extent that any disclosure of Confidential Information:
(a) is required by law or the rules of any stock exchange, in which case, if permitted by law or the rules of the relevant stock exchange (as applicable) and as soon as reasonably practicable, the party required to disclose such information will notify the other party of the requirement, the information it will disclose and the date on which it will disclose the information;
(b) is for the purposes of exercising its rights under, or enforcing, this agreement;
(c) is of information that is publicly available through no fault of the recipient of the Confidential Information; or
(d) in relation to which the other party agrees in advance and in writing to the disclosure of;
(e) which was rightfully received from a third party without restriction or without breach of this agreement.
8.4 For the avoidance of doubt, the Supplier acknowledges and agrees that the Customer’s data is the Customer’s Confidential Information.
9 Precedence of documents
9.1 In the event of any conflict of meaning, or ambiguity, the documents which comprise this agreement shall have the order of precedence set out below:
(a) Any written variation to the schedule(s) or Statements of Work agreed between the parties. Any such variations shall have the order of precedence of the later variation prevailing over any inconsistent earlier variation;
(b) A Statement of Work;
(c) The schedule(s) to this agreement;
(d) These terms and conditions.
10.1 Either party has the right to terminate this agreement immediately and without notice if:
(a) the other party breaches any term of this agreement and such breach, being capable of remedy, is not remedied within ten Working Days of receiving a notice in writing specifying the default;
(b) the other party breaches any term of this agreement and such breach is incapable of remedy;
(c) the other party is deemed unable to pay its debts as they fall due, a resolution is passed or order made for its liquidation, or it is placed into statutory management, liquidation, administration or receivership.
10.2 The Supplier has the right to terminate this agreement by giving the Customer 30 days’ notice in the event that the Customer fails to pay any undisputed amount in accordance with this agreement and that amount remains unpaid despite the Supplier giving 5 Working Days’ further notice that amount remains unpaid.
10.3 The expiry or termination of this agreement shall be without prejudice to the rights of the parties accrued up to the date of such expiry or termination.
10.4 On termination of this agreement for any reason:
(a) All rights granted to the Customer will terminate;
(b) The Customer shall immediately cease all use of the Software;
(c) The Customer shall immediately pay to the Supplier all outstanding amounts up to the date of termination;
(d) All obligations that are intended to continue, or to come into force, after termination of this agreement shall continue or shall come into force; and
(e) The Supplier will return to the Customer or destroy all Confidential Information of the Customer (other than the Customer’s data, which the Supplier will assist the Customer to extract in accordance with clause 10.4(f));
(f) The Supplier will assist the Customer to extract relevant data prior to cessation of use (e.g. create a copy of the SQL database in a format reasonably requested by the Customer). Services provided will be carried out on a Time and Materials basis at the Supplier’s then current rates applying at the time the Services are provided.
11 Promotional Material
Provided the Customer has provided its prior written consent (which is to be given by the Customer at its sole discretion), the Customer shall permit the supplier to include Customer logos and any documents or quotes agreed to by both parties in the Supplier’s promotional material.
12 Dispute Resolution
12.1 In the event of any dispute arising between the parties in relation to this agreement, no party may commence any proceedings relating to the dispute (except where the party seeks urgent interlocutory relief) unless that party has complied with the procedures in this clause 12.
12.2 The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The other party must within fourteen days of receipt of the notice, give written notice to the first party naming its representative for the negotiations (“Other Party’s Notice”). Each nominated representative will have authority to settle or resolve the dispute. The parties will co-operate with each other and endeavour to resolve the dispute through discussion and negotiation.
12.3 If the dispute is not resolved within one month following the date of the Other Party’s Notice (or such longer period as may be agreed upon by the parties in writing), either party can commence any proceedings as that party sees fit.
13.1 Notices: All notices to be given under this agreement will be in writing and will be sent to the usual business address of the other party, or any other address the other party may designate by notice given in accordance with this clause. Notices may be delivered personally, by email, or by air mail pre-paid letter. Notices will be deemed to have been received:
(a) By hand delivery – at the time of delivery;
(b) By mail – on the second Working Day after the date of mailing;
(c) By email – immediately on transmission;
provided that any notice received after 5pm or not on a Working Day shall be deemed to have been received at 9am the next Working Day, and that no notice shall be deemed to have been received if the sender receives a system-generated indication of failure of transmission or sending.
13.2 Non reliance: Each party to this agreement acknowledges that it has relied on its own judgment in respect of all matters under this agreement.
13.3 Further assurances: Each party shall do all such things as are necessary to implement the provisions of this agreement.
13.4 Assignment: The Customer may not sell, transfer, assign or sub-contract all or any part of his or her interest in this agreement without the express written consent of the Supplier, such consent not to be reasonably withheld. For the purposes of this clause, a merger with another entity shall be deemed to be an assignment.
13.5 Force majeure: Neither party shall be liable for failure to perform its obligations under this agreement if such failure results from circumstances beyond its reasonable control, including but not limited to acts of God, government intervention, fire, explosion, earthquake, volcanic activity, extreme adverse weather conditions, war, terrorism, civil commotion and sabotage, but does not include any circumstance or event that could have been avoided, prevented, or circumvented by the affected party by the exercise of reasonable care (the “Force Majeure Event”). If such failure persists for more than two months after the Force Majeure Event, then the non-affected party may terminate the agreement by giving 10 Working Days written notice.
13.6 Waiver: No waiver of any breach of any term of this agreement shall be effective unless in writing signed by the party having the right to enforce such breach and no such waiver shall be construed as a waiver of any subsequent breach.
13.7 Variation: This agreement may only be varied by agreement in writing by the parties, or in accordance with express provisions of this agreement. A failure, delay or indulgence by any party in exercising any power or right shall not operate as a waiver of that power or right. A single exercise or partial exercise of any power or right shall not preclude further exercises of that power or right or the exercise of any other power or right.
13.8 Entire agreement: This agreement constitutes the entire agreement between the parties in relation to the subject matter of this agreement. Any prior arrangement, agreements, representations or undertakings are expressly superseded and extinguished.
13.9 Costs: Each party shall bear their own costs incurred in connection with the preparation and execution of this agreement.
13.10 Severance: Any illegality, or invalidity or unenforceability of any provision in this agreement is not to affect the legality, validity or enforceability of any other provisions.
13.11 Governing law: This agreement shall be governed by the laws of New Zealand and subject to the exclusive jurisdiction of the New Zealand courts.
13.12 Execution: This agreement may be signed in any number of counterparts (including by scanned electronic copies) and provided that each party has signed a counterpart, the counterparts, when taken together, will constitute a binding and enforceable agreement between the parties.