Terms and Conditions
ZenContract Limited (the Supplier) agrees to supply the Services to you, the Customer, via the internet in return for payment of the price for those Services subject to the terms and conditions of this agreement. Acceptance of receipt of any Services will (notwithstanding any statement to the contrary by the Customer or its employees or agents) constitute acceptance of the terms and conditions of this agreement. If there is more than one of you, your liability is joint and several.
1. User subscriptions
1.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 1 and clause 8.1, the restrictions set out in this clause 1 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
1.2 In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation will not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User will no longer have any right to access or use the Services and/or Documentation;
(c) it will maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier's written request at any time or times;
(d) it will permit the Supplier or the Supplier's designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer's data processing facilities to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter, at the Supplier's expense, and this right will be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
(e) if any of the audits referred to in clause 1.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier's other rights, the Customer will promptly disable such passwords and the Supplier will not issue any new passwords to any such individual; and
(f) if any of the audits referred to in clause 1.2(e) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier's other rights, the Customer will pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in paragraph 1 of Schedule 1 within 5 Business Days of the date of the relevant audit.
1.3 The Customer must not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
1.4 The Customer must not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties; or
(d) subject to clause 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 1; or
(f) introduce or permit the introduction of, any Virus or Vulnerability into the Supplier's network and information systems.
1.5 The Customer must use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
1.6 The rights provided under this clause 1 are granted to the Customer only, and will not be considered granted to any subsidiary or holding company of the Customer.
2. Additional user subscriptions
2.1 The Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in paragraph 1 of Schedule 1 and the Supplier will grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement. If such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees will be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
3. Services
3.1 The Supplier will, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
3.2 The Supplier will use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am NZ time; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours notice in advance.
3.3 The Supplier will, as part of the Services and in consideration of the support fees set out in Schedule 1, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.
4. Data protection
4.1 Both parties will comply with all applicable requirements of the Privacy Act 2020. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Privacy Act 2020.
5. Third party providers
5.1 The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and will have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
6. Supplier's obligations
6.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
6.2 The undertaking at clause 6.1 will not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.
6.3 The Supplier:
(a) does not warrant that:
(i) the Customer's use of the Services will be uninterrupted or error-free; or
(ii) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
(iii) the Software or the Services will be free from Vulnerabilities or Viruses; or
(iv) the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.4 This agreement will not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
6.5 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
7. Customer's obligations
7.1 The Customer will:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by the Supplier;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and will be responsible for any Authorised User's breach of this agreement;
(e) obtain and will maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
7.2 The Customer will own all right, title and interest in and to all of the Customer Data that is not personal data and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
8. Charges and payment
8.1 The Customer must pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with the Supplier’s payment policy, as updated from time to time, and Schedule 1 and the support fees in accordance with clause 3.3 and Schedule 1.
8.2 The Customer must on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and the Customer hereby authorises the Supplier to bill such credit card:
(a) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(b) on each Renewal Date for the Subscription Fees payable in respect of the next Renewal Period.
8.3 If the Supplier has not received payment within 5 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and the Supplier will be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest will accrue on a daily basis (and will be capitalised monthly) on such due amounts at an annual rate equal to 18%, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.4 All amounts and fees stated or referred to in this agreement:
(a) will be payable in New Zealand dollars;
(b) are, subject to clause 12.2(b), non-cancellable and non-refundable;
(c) are exclusive of goods and services tax, which will be added to the Supplier's invoice(s) at the appropriate rate.
8.5 If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Documentation, the Supplier will charge the Customer, and the Customer will pay, the Supplier's then current excess data storage fees. The Supplier's excess data storage fees current as at the Effective Date are set out in Schedule 1.
8.6 The Supplier will be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 1, the support fees payable pursuant to clause 3.3 and/or the excess storage fees payable pursuant to clause 8.5 on or after each anniversary of the Initial Date upon 90 days’ prior notice to the Customer.
9. Proprietary rights
9.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
9.2 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
10. Confidentiality and compliance with policies
10.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives whether before or after the date of this agreement in connection with the provision of the Services, including but not limited to:
(a) any information that would be regarded as confidential by a reasonable business person relating to:
(i) the business, assets, affairs, customers, clients, suppliers, o] plans , intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
(ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);
(b) any information developed by the parties in the course of carrying out this agreement and the parties agree that:
(i) details of the Services, and the results of any performance tests of the Services, will constitute Supplier Confidential Information; and
(ii) Customer Data will constitute Customer Confidential Information .
Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
10.2 The provisions of this clause will not apply to any Confidential Information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
(b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
(c) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
(d) the parties agree in writing is not confidential or may be disclosed; or
(e) is developed by or for the receiving party independently of the information disclosed by the disclosing party.
10.3 Each party will keep the other party’s Confidential Information secret and confidential and will not:
(a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement ( Permitted Purpose ); or
(b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 11.
10.4 A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
(a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
(b) at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.
10.5 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure .
10.6 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this agreement are granted to the other party, or to be implied from this agreement.
10.7 On termination or expiry of this agreement, each party will:
(a) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information;
(b) erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
(c) certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause will continue to apply to any such documents and materials retained by a recipient party, subject to clause 13 (Termination).
10.8 No party will make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
10.9 Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
10.10 The above provisions of this clause 10 will survive for a period of five years from termination or expiry of this agreement.
11. Indemnity
11.1 The Customer will defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
(c) the Customer is given sole authority to defend or settle the claim.
11.2 The Supplier will defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation in accordance with this agreement infringes any New Zealand patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and will indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and
(c) the Supplier is given sole authority to defend or settle the claim.
11.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.4 In no event will the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than the Supplier; or
(b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
(c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
11.5 The foregoing and clause 12.2(b) state the Customer's sole and exclusive rights and remedies, and the Supplier’s (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12. Limitation of liability
12.1 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer (including the accuracy, adequacy, validity, reliability, availability or completeness of any document or sets of documents uploaded or provided to the Supplier in connection with the Services), and for conclusions drawn from such use. The Supplier will have no liability for any damage caused by errors or omissions in any information, document or sets of documents, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement;
(c) the Services and the Documentation are provided to the Customer on an “as is” basis;
(d) The Customer acknowledges and agrees that:
(i) any template documentation the Supplier provides to the Customer as part of the Services is for use as a guide and for general information purposes only and does not constitute legal advice;(ii) the Supplier is not a law firm and makes no representation or warranty of any kind, express or implied, regarding the accuracy, adequacy, validity, reliability, availability, or completeness of any information contained in any such template documentation;
(iii) the Supplier has advised the Customer to obtain independent legal advice before taking or refraining from any action on the basis of the content in any such template documentation; and
(iv) it is responsible for ensuring that its access to and use of any template documentation is not illegal or prohibited, and for its compliance with applicable laws; and
(e) The Customer agrees to use template documentation provided by the Supplier solely at its own risk and will fully release and indemnify the Supplier from any liability associated with the use of any such template documentation.
12.2 Subject to clause 12.1:
(a) the Supplier will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
(b) the Supplier's total aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement will be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
12.3 Nothing in this agreement excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights.
13. Term and termination
13.1 This agreement will, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and will continue for the Initial Subscription Term and, thereafter, this agreement will be automatically renewed for successive Renewal Periods, unless:
(a) The Customer notifies the Supplier of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement will terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods will constitute the Subscription Term .
13.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than five days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 15 Business Days after being notified in writing to do so;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) an application is made to court, or an order is made, for the appointment of an administrator or liquidator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(f) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(g) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(h) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(i) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy .
13.3 The Supplier may terminate this agreement at any time, without cause, by giving not less than 30 Business Days’ notice of termination.
13.4 On termination of this agreement for any reason:
(a) all licences granted under this agreement will immediately terminate [and the Customer will immediately cease all use of the Services and/or the Documentation];
(b) each party will return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier will use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer will pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination will not be affected or prejudiced.
14. Force majeure
14.1 Neither party will be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations will be extended accordingly. If the period of delay or non-performance continues for three months, the party not affected may terminate this agreement by giving 30 days’ written notice to the affected party.
15. Conflict
15.1 If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement will prevail.
16. Variation
16.1 No variation of this agreement will be effective unless it is accepted in writing by the Supplier. Where the Supplier varies the terms of this Agreement, the Customer will be deemed to have accepted the variation if it continues to subscribe to the Services after having been notified of the change of terms.
17. Waiver
17.1 A waiver of any right or remedy is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy.
17.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy will not waive that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.
18. Rights and remedies
18.1 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
19. Severance
19.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of this agreement.
19.2 If any provision or part-provision of this agreement is deemed deleted under clause 19.1 the parties will negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
20. Entire agreement
20.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
20.2 Each party acknowledges that in entering into this agreement it does not rely on, and will have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
20.3 Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
20.4 Nothing in this clause will limit or exclude any liability for fraud.
21. Assignment
21.1 The Customer will not, without the prior written consent of the Supplier, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
21.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
22. No partnership or agency
22.1 Nothing in this agreement is intended to or will operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party will have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
23. Third party rights
23.1 This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns).
24. Interpretation
24.1 The definitions and rules of interpretation in this clause 27 apply in this agreement.
Authorised Users : those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 1.2(d).
Business Day : a day other than a Saturday, Sunday or public holiday in New Zealand when banks in Christchurch are open for business.
Confidential Information : information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.1.
Customer Data : the data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Effective Date : the date the Customer signs up to use the Services.
[Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User relating to security of network and information systems and security breach and incident reporting requirements.]
Initial Date : the first date of the Initial Subscription Term.
Initial Subscription Term : the initial term of subscription as selected by the Customer upon sign up to the Services, being one (1) month or (1) year.
Normal Business Hours : [8.30 am to 5.00 pm] local NZ time, each Business Day.
Renewal Date: if the Initial Subscription Term is one (1) month, the date that is [thirty (30) days] after the Initial Date and each subsequent date that is [thirty (30) days] after a Renewal Date. If the Initial Subscription Term is one (1) year, the anniversary date of the Initial Date and each subsequent anniversary of a Renewal Date.
Renewal Period : if the Initial Subscription Term is one (1) month, each successive renewal period of [thirty (30) days]. If the Initial Subscription Term is one (1) year, each successive renewal period of one (1) year.
Software : the software applications provided by the Supplier as part of the Services.
Subscription Fees : the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in paragraph 1 of Schedule 1.
Subscription Term : has the meaning given in clause 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
User Subscriptions : the user subscriptions purchased by the Customer pursuant to clause 8.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.
Virus : any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability : a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities will be interpreted accordingly.
24.2 Clause, schedule and paragraph headings will not affect the interpretation of this agreement.
24.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) [and that person's legal and personal representatives, successors or permitted assigns].
24.4 A reference to a company will include any company, corporation or other body corporate, wherever and however incorporated or established.
24.5 Unless the context otherwise requires, words in the singular will include the plural and in the plural will include the singular.
24.6 Unless the context otherwise requires, a reference to one gender will include a reference to the other genders.
24.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
24.8 A reference to a statute or statutory provision will include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
24.9 A reference to writing or written excludes fax but not email.
24.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
25. Governing law
25.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by and interpreted in accordance with the law of New Zealand.
26. Jurisdiction
26.1 Each party irrevocably agrees that the courts of New Zealand will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
Schedule 1 Subscription Fees
1. Subscription Fees
The Subscription Fees are available online at https://www.zencontract.com/pricing or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
2. Additional User Subscription Fees
Additional User Subscriptions may be purchased by the Customer in accordance with our online pricing schedule available at https://www.zencontract.com/pricing.
3. Support Fees
The Supplier's standard and enhanced support fees are available online at https://www.zencontract.com/pricing
