Standard Terms

1\ definition 1 1 in this agreement agreement means these standard terms, together with any master services agreement and service order between throughline and the customer, if applicable business day means between 9 00am and 5 00pm any day, other than a saturday or a sunday, on which banks are open for the transaction of regular business in the taranaki region of new zealand confidential information means information in any form that is disclosed, by or on behalf of a party to this agreement, including before the commencement date, to a party in connection with this agreement that (a) the party identifies as “confidential”, “proprietary”, or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure confidential information includes the existence of this agreement and the information on any service order, if applicable default interest rate means interest on monies overdue will be charged on a daily basis and be calculated by adding 2% per month to the overdraft rate payable by throughline to its bankers at the time of and during such default, and interest will continue to accrue both before and after judgement fee means the specified fees the customer is required to pay to throughline listed in the service order for throughline’s delivery of the services intellectual property and intellectual property rights means any intellectual property rights, title and interests (including common law rights and interests) in any jurisdiction including (a) patents, trademarks, service marks, copyright, registered designs, trade names, domain names, symbols and logos; (b) patent applications and applications to register trademarks, service marks and designs; and (c) confidential information, trade secrets and know how and rights in tools, techniques, computer program code, databases, data inventions, discoveries, developments, trade secrets, information and logical sequences (whether or not reduced to writing or other machine or human readable form) licenced content refers to the data, work, models, processes, technologies, strategies, documentation, information, services and materials provided by throughline to the customer specified in this agreement licenced content includes, but is not limited to, text, images, videos, audio, metadata, and any other data or information made available by throughline this encompasses both the initial data provided at the commencement of the agreement and any subsequent updates, modifications, or additions provided by throughline loss includes loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis policies include caching policy , limits policy , api access policy , privacy policy , terms of service recipient party means the party receiving such confidential information personal information means information about a person that is capable of identifying that person pre existing intellectual property means any intellectual property of a party which exists at the date of this agreement or is not developed in connection with any part of this agreement services mean the services described in the service order being offered to the customer by throughline 1 2 interpretation in this agreement, unless the context indicates otherwise (a) headings clause and other headings are for ease of reference only and will not affect this agreements interpretation; (b) negative obligations any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done; (c) inclusive expressions wherever the words includes or including (or any similar words) are used, they are deemed to be followed by the words “without limitation”; (d) plural and singular where the context permits, the singular includes the plural and vice versa; (e) parties references to any party mean a party to this agreement and include that party’s successors and permitted assignees (as the case may be); (f) persons where the context permits, references to a person include an individual, firm, company, corporation or unincorporated body of persons, any public, territorial or regional authority, any government, and any agency of any government or of any such authority; and (g) monetary amounts all monetary amounts are in new zealand currency 1 3 statutory provisions references to any statutory provision include any statutory provision which amends or replaces it, and any bylaw, regulation, order, statutory instrument or other determination made under it 2\ services and restrictions on services 2 1 for the term of this agreement and subject to compliance with this agreement, throughline grants the customer, a non exclusive, non transferable, royalty free, non sublicensable licence to the services for the customer’s business purposes only 2 2 the customer must ensure that access and use of the licenced content is only to end users and the customer must further ensure no unauthorised person has access or use of the licenced content through the customer’s services to that end and without limiting the former, the customer agrees to (a) ensure that an end user does not permit any other person to use or access the licenced content; (b) not disclose or permit any end user to disclose or provide any information, link or material that may allow any third party to gain access to and use of the licenced content; and (c) inform throughline in writing immediately of any known or suspected unauthorised access to the licenced content 2 3 the customer must not (a) resell or resupply (otherwise than in accordance with this agreement) the services or the output (or any part of the output) of the services to any person or entity; (b) make the services available to any nonindividual third party, unless explicitly authorised by this agreement or otherwise approved by throughline in writing; (c) reveal, modify, adapt, reproduce or otherwise use the services (including any software, documentation or data related to the services) for any purpose not explicitly authorised by this agreement; (d) extract, disassemble, decompile, reverse engineer, translate, creative derivative works or otherwise seek to reveal the operating logic of any part of the services; (e) use the services to derive the source code, underlying ideas, algorithms, structure or organisation, or store data/output of the services, or any similar action, in a manner that facilitates the creation or development of an application programming interface or any functionality of services; (f) use or permit (whether directly or indirectly) the use of the services for the purpose of training artificial intelligence technologies to generate text, including technologies that are capable of generating works in the same style as any part of the services; (g) conduct, facilitate, authorise or permit any text or data mining or web scraping for any purpose in relation to the services, or information featured in it this includes using (or permitting, authorising or attempting the use of) i any automated analytical technique aimed at analysing text and data in digital form to generate information which includes but is not limited to patterns, trends and correlations; or ii any “robot”, “bot”, “spider”, “scraper”, “ai tool” or other automated device, program, tool, algorithm, code, process or methodology to access, obtain, copy, monitor or republish any portion of the services or information featured in it; (h) defeat, avoid, by pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the services (or any part of them), including, without limitation, any such mechanism (including the website) used to restrict or control the functionality of the services (or any part of them); (i) act in a way, or use or introduce anything (including any virus, worm, trojan horse, timebomb, keystroke logger, spyware or other similar feature) that in any way damage, interfere with or compromises, in any way, any of the services, websites, underlying system and data; and (j) unless authorised by throughline in writing, access throughline’s websites and services via nonstandard web browsers or any other method that allows or facilitates scraping, deep linking, harvesting, data mining, use of a robot or spider, automation, or any similar data gathering, extraction or monitoring methods 2 4 the customer will comply with all applicable laws, rules and regulations, together with all guidelines, procedures and policies notified by throughline from time to time (including those set out in the service order) the customer must not use or permit the use (whether directly or indirectly) of the services (a) in a way that violates the privacy rights or civil liberties of any person (including in a way that prevents the exercise of them); (b) in a way that attempts to circumvent, or is otherwise inconsistent with, the customer’s obligations in (and anticipated by) this agreement; (c) for any illegal, unlawful or otherwise improper purpose; (d) to analyse or research the data underlying the services in a way that isolates a small group of individuals or any single individual for any purposes; (e) to collect personal information about third parties, including without limitation, e mail addresses; or (f) in such a way that would ordinarily be considered inconsistent with the reasonable expectation of privacy of an individual and any data that relates to that individual 2 5 the customer may not use the services in a manner that may damage, disable, overburden or impair either the services or the networks connected to the services 2 6 the customer must not attempt to gain unauthorised access to the services, including but without limitation, through hacking or password mining and must not use the services to collect personal information about third parties, including without limitation, e mail addresses 3\ fees and payment terms 3 1 during the term of this agreement, the customer will pay throughline the fees (in accordance with the fee and payment period provisions in the service order) 3 2 throughline will be entitled to adjust the fees, provided that any adjustment will be effective only at the start of a renewal period and with 60 business days prior notice before the start of such renewal period 3 3 all payments under this agreement are to be made in cleared and immediately available funds, without any set off, deduction or withholding whatsoever 3 4 all fees exclude new zealand goods and services tax ( gst ) 3 5 the customer will pay any taxes, goods and services tax, government levies or other government charges (“taxation”) in connection with the fees in accordance with the laws applicable to the customer 3 6 in the event that payment in full of any amount owing to throughline is not made by the customer within 20 business days of the invoice date, throughline or its agent may send the customer a written requirement for payment and if payment is not received within 10 business days of the date of that notice, throughline may (a) charge the customer default interest at the default interest rate on all amounts owing to throughline under this agreement which remains outstanding for payment until all such outstanding amounts has been paid in full this provision will not constitute a waiver of the customer's default and the default interest is not an extension of credit to the customer; (b) terminate this agreement in accordance with clause 8 3; and (c) exercise any rights that throughline has under this agreement or that are available to throughline at law or equity 3 7 if the customer has a genuine dispute in relation to all or any portion of an invoice rendered by throughline, the customer must immediately (not being more than 20 business days of the due date) notify throughline of the nature of the dispute and must pay all undisputed amounts on time following notice by the customer, the parties will work together to resolve the dispute within 15 business days of the customer being notified of the dispute if no resolution is agreed, each party may pursue any remedies available under this agreement or at law 4\ intellectual property 4 1 throughline (and its licensors) own all proprietary and intellectual property rights in the services and licenced content (including all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel) 4 2 nothing in this agreement confers on the customer any right or interest in, or licence or permit to use any of the intellectual property in the delivery of services or any other intellectual property owned by throughline or any third party licensors, other than in accordance with the express terms of this agreement 4 3 the customer agrees to inform throughline immediately of any legal action or other claim relating to its intellectual property and to notify throughline of any alleged infringement or unlawful use of its intellectual property 4 4 the customer grants throughline, during the term of this agreement, a non exclusive, worldwide, royalty free and non transferable licence to use the customer’s name and logo to identify throughline as the customer’s provider of the services on throughline’s website/s or promotional material 5\ third party material and disclaimers 5 1 the services contains links to other websites or resources, including phone numbers, sms and whatsapp numbers, which throughline does not control (external sites) such links do not constitute an endorsement by throughline of those external sites the customer acknowledges that throughline is not responsible for the content of any external sites the customer or its end users access, reliance or use of the external sites is entirely at their own risk and subject to the terms and conditions of use and privacy policies of the external sites provider 5 2 the customer acknowledges that throughline is facilitating the customer and their end users ability to access and seek assistance from third party service providers throughline is not liable to the customer in respect of any defective services provided by any third party or contractor the customer’s right to a claim or action for any defective services provided by a contractor or third party will be restricted to an action or claim solely against the contractor or third party and not throughline 6\ disclaimer and exclusion of warranties 6 1 throughline provides the customer the services on a general and as is basis, without any representations and warranties (express or implied) of any kind, including as to the completeness, accuracy, reliability or suitability of the information and resources the customer accepts that any information provided in the services by throughline is general information and should not in any way be used as a substitute for seeking or obtaining any professional health care, mental health treatment, psychiatric care or therapy of any kind if the customer believes its end user is experiencing a medical or psychological emergency, the customer should immediately contact local emergency services if the customer’s end user is experiencing a clinical or long term health issue, the customer should consult a medical professional 6 2 while throughline periodically reviews third party information, throughline does not warrant the accuracy of the third party information and data linked with the services throughline is also not liable for any losses suffered by the customer or its end users as a result of its reliance on the services, third party material or helplines 6 3 while care has been taken in the preparation and provision of the services, to the extent permitted by law, throughline and its service providers, employees, contractors and directors have no liability or responsibility to the customer or any other person for any loss in connection with (a) any of throughline’s services being unavailable (in whole or in part), performing slowly, being interrupted, or not being timely or secure; (b) any incompleteness, inaccuracies and error in, or omission from, any information made available through its services; (c) any exposure to viruses or other forms of interference which may damage the customer’s computer system or expose the customer to fraud when accessing or using the services to avoid doubt, the customer and its end users are responsible for ensuring the process by which they access and use the servies is safe; and (d) any external site linked from the services any external site linked from the services does not imply any affiliation, endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators 6 4 throughline makes no representation or warranty that its services are appropriate or available for use in any particular country or that the content satisfies the laws of such country the customer and its end users are responsible for ensuring that their access to and use of the services is not illegal or prohibited 6 5 throughline uses commercially available anti virus software in the provision of the services, but it cannot guarantee that the services will be free from viruses, trojan horses, worms, time bombs, or similar harmful programming routines 6 6 the customer acknowledges and agrees that it is acquiring the services for business purposes and that the guarantees under the new zealand consumer guarantees act 1993 and sections 9, 12a, 13 and 14(1) of the new zealand fair trading act 1986 do not apply 7\ liability 7 1 to the maximum extent permitted by law (a) throughline (including its employees, agents and affiliates) is not liable or responsible to the customer, the end user or any other person for any harm caused or any actions taken or not taken by the customer or its end users after or as a result of the customer’s or its end user’s use of the services, or any loss under or in connection with this agreement, or the customer’s or its end user’s access and use of (or inability to access or use) the services this exclusion applies regardless of whether throughline’s liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise (b) throughline (including its employees, agents and affiliates) excludes all liability for loss or damage (including loss of, or damage to, physical property, personal injury or death) arising out of or in connection with the customer’s or end users use of the services, whether or not such loss or damage was foreseeable or whether the customer advised throughline of the possibility of the loss or damage (c) throughline (including its employees, agents and affiliates) will not be liable to the customer or end user for any loss or damage howsoever arising in connection with any decisions, consequences or actions taken by the customer, end users or any other person in connection with or in purported reliance on the services (d) throughline (including its employees, agents and affiliates) will not be liable to the customer or end user for any loss or damage arising from delay or failure to perform its obligations due to any matter beyond its reasonable control nor any loss or damage caused or contributed to by the customer or end user (e) the customer indemnifies and will keep throughline (including its employees, agents and affiliates) indemnified against any liability, damages, expenses, costs or compensation that throughline may have to pay any party for any act, error or omission of the customer or the customer’s agents (f) the customer’s sole remedy against throughline is limited to breach of contract and throughline (including its employees, agents and affiliates) will not be liable to the customer for breach of statute or breach of duty in tort (including negligence) or for any claim in equity or otherwise at law throughline will not, in any case, be liable for any other losses or damages whether general, exemplary, punitive, direct, indirect or consequential (g) throughline’s (including its employees, agents and affiliates) maximum liability to the customer under or in connection with this agreement (whether in contract, tort or otherwise), as an aggregate in respect of all events and breaches of this agreement, will not exceed the actual fees paid by the customer for the prior 12 months 8\ term and termination 8 1 this agreement will start on the commencement date described in service order and, unless terminated earlier in accordance with this agreement, will continue for the term of the subscription period and thereafter will be automatically renewed for successive subscription periods (a renewal period) unless the customer notifies throughline at least 40 business days before the end of the initial subscription period or a renewal period 8 2 either party may terminate this agreement by giving the other party 30 business days’ notice in writing to the other party if a party materially breaches any provision of this agreement and such breach is not remedied within 10 business days of written notice by the other party to remedy that breach 8 3 either party may immediately terminate this agreement entirely or in part, by written notice to the other party if the other party commits one or more of the following events of default (a) is, or becomes, unable to pay its debts when due; (b) enters into, or resolves to enter into, any voluntary administration, compromise with or assignment for the benefit of its creditors, or enters into, or resolves to enter into, a court approved arrangement or a capital reorganisation or reconstruction or there is a change in the effective management or control of the member; (c) an application or order is made, or a resolution passed for the winding up of the party other than for the purpose of amalgamation or reconstruction; (d) a receiver, a receiver and manager, an official manager, a liquidator, a statutory manager, a trustee or an equivalent person is appointed over all or part of the party's assets or undertakings; (e) the party ceases to carry on its business in whole or in part 8 4 the following will apply upon the termination or expiry of this agreement in any manner (unless otherwise agreed in writing between the parties) (a) the customer must immediately cease to use the services, including use by its end users, and must immediately, return to throughline any end user documentation or other materials associated with the customer's use of the services; and (b) the customer may not modify, develop or base the development of similar tools, systems, websites or otherwise based on the intellectual property of throughline 8 5 termination or expiry of this agreement is without prejudice to any obligations or rights of either party approved in the agreement or otherwise prior to such termination or expiry and does not affect any provision of this agreement which are intended to come into effect on or continue in effect after such termination 8 6 throughline will not be liable to the customer or any other persons for any loss suffered or liability incurred arising from cancellation of this agreement 8 7 the customer will only be liable to pay throughline that part of the fees which has been properly incurred in accordance with this agreement 9\ maintenance and suspension 9 1 the customer acknowledges and accepts that throughline may, from time to time, perform reasonably scheduled and emergency maintenance, modifications, and updates (“ maintenance event ”) related to the services, which may result in the websites and services being suspended or inaccessible to the customer and end user 9 2 throughline will make reasonable efforts to notify the customer of any maintenance event that may materially interrupt the services the customer or end user may be required to make updates or changes to their systems following a maintenance event, which shall be at the customer’s or and end users’ sole cost 9 3 throughline will not be liable to the customer nor the end user for any interruptions to the services resulting from a maintenance event for the avoidance of doubt, the services will not be considered as unavailable during a maintenance event as described in clause 9 1 outages or disruptions to the services or website, attributable in whole or in part to the customer or end user will be considered force majeure event 9 4 if throughline considers that an end user associated with the customer has breached the terms and conditions of service or otherwise considers it appropriate, throughline may immediately and without notice, at any time and at its sole discretion suspend or terminate an end users access to the website and services 9 5 on suspension or termination pursuant to clause 9 4, an end user must immediately cease using the websites and services and must not attempt to gain further access 10\ confidentiality 10 1 each party, in its capacity as recipient party, undertakes and agrees to treat as secret and confidential and not, subject to clause 10 2, at any time for any reason whatsoever to disclose or permit to be disclosed to any person or otherwise make use of or permit to be made use of any confidential information of the other party 10 2 the obligations of confidence referred to in this clause do not extend to any confidential information which (a) is or becomes generally available to the public otherwise than by reason of a breach by the recipient party of the provisions of this sub clause; (b) is known to the recipient party and is at its free disposal prior to its receipt from the other party; (c) is subsequently disclosed to the recipient party without obligation or confidence by a third party owing no such obligations to the other party in respect of such information; or (d) the recipient party becomes obliged to disclose by the laws of any jurisdiction to which the recipient party is subject; provided that if the recipient party is legally required to disclose any confidential information, the recipient party will (e) immediately notify the other party of such requirement; (f) fully co operate, at the other party's cost, with all legal actions taken by the other party to avoid or limit such disclosures; and (g) if the recipient party cannot avoid such disclosure, the recipient party will (i) only disclose such portions of the confidential information as it is legally required to do so by the laws of any jurisdiction to which the recipient party is subject to; and (ii) use its reasonable endeavours to obtain assurances that such information will be treated as confidential by any person to whom it is disclosed 10 3 the obligations of the parties under this clause survive the expiry or the termination of this agreement for whatever reason 10 4 notwithstanding the obligations in clauses 10 1 to 10 3, where the party is a state, state funded organisation or listed company, it may (a) reveal to its funder the identity of throughline and the existence and nature of this agreement for the purpose of that funder publishing such information in the public domain; and/or (b) request from throughline, and throughline will not unreasonably withhold, its cooperation in supplying information relating to the services, fees, and performance to this agreement for the purposes of reporting or audit obligations the party has with its funder 10 5 the recipient party may disclose the confidential information to employees, advisors, contractors, and representatives who each have a need to know the confidential information, but only if that person or entity is bound by confidentiality obligations in this clause 10 and recipient party remains responsible for all its employees, advisors, contractors and representatives compliance with the terms of this clause 10 11\ notice 11 1 any notice or other communication ("notices") given under this agreement must be in writing 11 2 notices may be served personally or sent to any of the relevant party's communication points listed in the service order (a) notices are deemed served at the following times (b) when given personally, upon delivery; (c) when sent by post (other than airmail) or document exchange, 5 business days after posting; and (d) when sent by email, at the time the email was sent (or the next business day if sent out of normal new zealand business hours) unless the recipient party has no record of receiving the email on their mail server 11 3 any notice which has been served on a saturday, sunday or public holiday is deemed to be served on the first business day after that day 11 4 a notice may be given by an authorised representative of the parties, an employee or agent 11 5 notice may be given personally to a director, employee or agent of the party at that party's address or to a person who appears to be in charge at the time of delivery 11 6 if the party is a natural person, partnership or association, the notice may be given to that person or any partner or responsible person if they refuse to accept the notice, it may be brought to their attention and left in a place accessible to them 11 7 this clause 11 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution 12\ force majeure 12 1 neither party will be responsible for any act, omission or failure to fulfil its obligations under this agreement if such act, omission or failure arises from any cause reasonably beyond its control (“force majeure event”) which includes floods, earthquakes and other acts of god but excludes business trading risk 12 2 the party who cannot carry out its obligations under this agreement must give the other party notice as soon as practicable of the cause and, insofar as it is known, the probable extent to which the party giving the notice will be unable to perform or will be delayed in performing its obligations under this agreement 12 3 on the issue of notice of a force majeure event, the obligations of the party giving the notice will be suspended insofar as that party is prevented during the continuance of such cause to carry out its obligations under this agreement 12 4 the party giving notice which is affected by the force majeure event must take all reasonable steps to mitigate the effects of, and eliminate, the intervening event and must resume performance of the supply of services as promptly as possible 12 5 should the force majeure event continue for a period exceeding 20 business days, then the party that is the recipient of the force majeure event notice may cancel this agreement by giving written notice to the other party 12 6 where a force majeure event gives rise to the need for a variation to the terms of this agreement, it will be recorded as a written variation document to be signed by both parties 13\ disputes 13 1 the parties will not commence any court or arbitration proceedings relating to a question, difference or dispute relating to this agreement or the services (dispute) unless it has first complied with this clause 13 13 2 where any dispute arises, the parties (or your representative) will negotiate in good faith in an attempt to resolve the dispute amicably 13 3 where the dispute cannot be resolved by way of good faith negotiations within 20 business days (or such longer period agreed by the parties) of negotiations commencing, either party can elect to mediate any dispute in terms of the resolution institute standard mediation agreement 13 4 if the dispute cannot be resolved by way of mediation within 40 business days (or such longer period agreed by the parties) of mediations commencement, then either party may initiate arbitration in new zealand 13 5 nothing in this section will preclude a party from taking immediate steps to seek urgent injunctive relief before an appropriate court 14\ general 14 1 governing law and jurisdiction this agreement and the provision of the services provided hereunder will be governed by new zealand law and the customer agrees to submit to the exclusive jurisdiction of the new zealand courts in respect of any disputes or claims arising out of or in connection with the services 14 2 relationship nothing express or implied in this agreement shall be construed as constituting either party as the partner, agent, employee, officer or representative of, or as a joint venture with, the other party, and neither party will make any contrary representation to any other person 14 3 variation from time to time the parties may agree to make variations to this agreement such variations will be recorded in writing and attached to this agreement where there is a conflict between the variations agreed and other parts of this agreement, the variations attached to this agreement will take precedence 14 4 waiver no party will be treated as having waived any right under this agreement unless the waiver is in writing and signed by such party any such waiver by a party of a breach of any provision of this agreement will not constitute a waiver of any subsequent or continuing breach of such provision or of the breach of any other provision of this agreement by that party any provision necessary for the interpretation or enforcement of this agreement shall survive any expiry of termination 14 5 severability 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 both parties 14 6 entire agreement this agreement sets out everything agreed by the parties relating to the customer’s use of the services and supersedes and cancels anything discussed, exchanged or agreed prior to the customer agreeing to this agreement for the avoidance of doubt, this agreement takes precedence over anything in the terms and conditions of service applying to the customer’s end users the parties have not relied on any representation, warranty or agreement relating to the services that is not expressly set out in this agreement, and no such representation, warranty or agreement has any effect from the date the parties agreed to this agreement 14 7 counterparts this agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which together will constitute a single instrument a party may enter into this agreement by executing any such counterparts any such counterpart may be a facsimile or scanned and emailed copy