Terms And Conditions

TERMS AND CONDITIONS

1. TERM
This Agreement is effective as of the latest date of the signatures of the Parties below (“Effective Date”). By signing below, the Parties agree to the terms of this Agreement in its entirety.
This Agreement shall remain in effect as long as the Service Provider continues to provide Services to the Client, including under any statement of work or similar document, unless terminated earlier in accordance with the terms of this Agreement.

2. SERVICES
2.1 Scope of Services
This Agreement serves as a master agreement governing all services we provide and any services, licenses or products we sell or resell to you (collectively the “Services”).
The specific Services, and agreed service levels (if any), will be described in a Managed Services Agreement, one or more service agreements, statements of work, proposals or quotes (each a “SOW”). Each SOW, once mutually agreed upon by both Parties, will be governed by this Agreement.
In case of any conflict between a SOW and this Agreement, the SOW will prevail, except in matters concerning warranties, limitations of liability or termination, where this Agreement will control unless expressly stated otherwise in the SOW.

3. GENERAL REQUIREMENTS
3.1 Environment
The portion of any computer network, system, peripheral or device (virtual or physical) that we maintain, monitor or operate under a SOW will collectively be referred to as the “Environment”.
You agree not to modify or move the Environment or install software on it without our prior written approval to avoid delays or additional costs. Any Services required to remediate issues caused by your unauthorised modifications to the Environment are considered out-of-scope and are not covered under any SOW.
3.2 Software Requirements
All software in the Environment must be genuine and licensed, and you agree to provide proof of such licensing upon request. Non-licensed software cannot be transferred or uploaded by us under any circumstance If we specify minimum hardware or software requirements in a SOW, you agree to implement and maintain these requirements throughout the term of the Services. The Service Provider cannot and does not knowingly work on non-licensed software. The Service Provider may assist you in purchasing the necessary software, if required.
Certain Services necessitate the installation of software agents within the Environment (“Software Agents”). You agree not to remove, disable, circumvent, or otherwise interfere with these Software Agents unless explicitly instructed by us.
3.3 Vendor Authorisation
The Client shall ensure that the Service Provider is duly authorised to liaise with all necessary external vendors to facilitate the provision of Services. This authorisation includes, but is not limited to, the Client’s internet service provider, web hosting provider, and domain hosting provider. If authorisation is lacking, the Service Provider may charge for time spent obtaining it. The Client agrees to ensure authorisation for any new vendors as relationships commence.
3.4 Updates
Updates and patches for hardware and software (“Updates”) are produced and distributed by third parties, such as equipment or software manufacturers. Where available, we will install Updates periodically within the Environment, adhering to the applicable manufacturers’ guidelines. Prior to installation, we will conduct testing to determine that the Update is compatible with the Environment’s configuration and provides a significant benefit to the features or functionality of the affected software or hardware.
However, we do not warrant or guarantee the performance of any Update, (and we will not be liable for any downtime or losses resulting from the installation, use, or inability to use any Update.
3.5 Client Responsibilities
The Client must, at no cost to the Service Provider:
(i) fulfil all obligations under this Agreement and any SOW;
(ii) conduct business in a courteous and professional manner with the Service Provider and its Personnel;
(iii) comply promptly with the Service Provider’s reasonable directions regarding the Services;
(iv) use the Services only for the purpose specified in this Agreement, and not permit any use for unauthorised purposes, which includes:
a. exposing the Service Provider to liability;
b. attempting to access, modify, or disrupt any service, system, or infrastructure not expressly authorised;
c. transmitting, publishing or communicating defamatory, offensive, abusive, indecent, or unwanted material;
d. distributing unsolicited advertising, spamming, or propagating harmful code;
e. infringing intellectual property rights, conducting fraudulent activities or violating any law.
(v) provide all necessary information, facilities, services, and assistance required by the Service Provider to deliver the Services, including diagnosing any issues within the Client’s Environment;
(vi) promptly inform the Service Provider of any changes that may materially affect the Services or their provision;
(vii) promptly notify the Service Provider of any deficiencies in performance of Services under this Agreement and to take all reasonable steps to mitigate the impact of such deficiencies;
(viii) refrain from altering, tampering with, or repairing the Services, or appointing a third party to do so;
(ix) keep all account information, passwords, data, and equipment confidential and secure;
(x) comply with all applicable laws and regulations regarding the use of the Services; and
(xi) promptly notify the Service Provider if unable to comply with any requests, explaining the reasons and suggesting alternatives to enable the continued provision of Services.
3.5.1 Responsibility for Removable Media
It is the Client’s responsibility to remove all removable media from any Goods before returning or submitting them for repair or replacement. The Service Provider shall not be responsible for any loss or damage to media left in the Goods.
3.5.2 Content Management
If the Service Provider reasonably believes that the Client or any user is breaching this clause, the Service Provider may (i) refuse to post or remove infringing content from public areas (e.g., bulletin boards, databases), excluding private messages; (ii) suspend or terminate the Services, with future service provision potentially refused; and/or (iii) inform relevant authorities of suspected illegal activity.
3.6 Advice
From time to time, we may offer specific recommendations and guidance regarding the Services (“Advice”). You are strongly encouraged to promptly act on our Advice, which may necessitate additional purchases or investments in the Environment at your expense. Unless explicitly stated in a SOW, any Services required to remediate issues caused by your failure to follow our Advice are considered out-of-scope and are not covered under any SOW. You acknowledge that we may charge additional fees for any work, including diagnostics, repairs, or remediation, that is required as a result of your failure to implement our Advice.
We are not liable for any issues or problems that arise from your failure to promptly implement our Advice including but not limited to downtime or security-related issues. If we determine that your failure to follow our Advice results in the Services becoming economically or technically unreasonable to provide, we may terminate the relevant SOW for cause.
We provide recommendations regarding products or Services as advisory only and do not guarantee their suitability or compatibility within your Environment. You assume responsibility for implementing these recommendations and may seek independent advice if necessary. You agree to indemnify and hold us harmless for any issues arising from following or not following our recommendations.
3.7 Authorised Contact(s)
Upon commencement of this Agreement, the Client must designate one (1) representative authorised to act on the Client’s behalf in all matters related to the Services (“Authorised Contact”). This representative will remain in place until the Client provides notice of a replacement. The Client must ensure that the representative is reasonably available for contact by the Service Provider at all times.
3.8 Insurance
Both Parties agree to maintain appropriate insurance coverage necessary to cover their respective risks and liabilities under this Agreement.
This insurance coverage shall include, but is not limited to, general liability, professional liability, and where applicable, cyber liability, as applicable to each Party’s operations. In addition, if we provide you with equipment or software, you agree to maintain commercial property insurance covering the full replacement value of such equipment or software.
As part of the execution of this Agreement, the Client shall be required to confirm whether they have an active cyber liability insurance policy in place:
(i) in the event that the Client confirms the existence of such coverage, the Agreement shall proceed without further action in this regard; or
(ii) in the event that the Client does not maintain cyber liability insurance, the Client shall expressly acknowledge their understanding of the risks associated with cyber-related incidents and irrevocably waive any right to seek recourse or remedy from the Service Provider, its affiliates, or its insurers in the event of any loss, damage, or claim arising out of a cyber-related incident.
It is hereby agreed that the amount of insurance carried by the Service Provider constitutes a commercially reasonable amount of insurance for the Service Provider to maintain.
3.8.1 Proof of Insurance
Prior to the commencement of Services, the Client shall provide the Service Provider with proof of insurance demonstrating the required coverage is in effect. Throughout the term of this Agreement, either Party may request satisfactory proof of insurance from the other, which must be provided within ten (10) business days of the request.
3.8.2 Notice of Changes
Each Party agrees to notify the other in writing at least thirty
(30) days prior to any cancellation, modification, or lapse in the required insurance coverage.
3.8.3 No Limitation of Liability
The insurance requirements set forth herein are not intended to and shall not be construed to limit or modify any of the liabilities or obligations assumed by either Party under this Agreement.

4. ACCESS
You agree to grant us and our designated vendors the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Environment on a 24×7 basis solely for the purpose of enabling us to provide the Services.
It is your responsibility to secure, at your own expense and prior to the commencement of any Services, all necessary rights of entry, licenses, permits, or other permissions required for us to deliver the Services both physically and virtually.
You must ensure proper and safe environmental conditions at all times. We shall not be required to provide any Services under conditions that pose a safety or health risk or that would necessitate extraordinary or non-industry standard efforts.
We shall not be liable for any delay in performance or non-performance of any term or condition of this Agreement resulting directly or indirectly from your denial of full and free access to the Environment, your Personnel, or your premises as required under this Agreement. If there is anything that interferes with our access, we may, at our sole discretion, bill you for additional time incurred to gain access.

5. FEES AND PAYMENT
You agree to pay the fees described in each SOW.
5.1 Price
The price of the Services shall be (i) as indicated on any invoice provided to the Client; (ii) as per the current price list on the date of delivery of the Goods; or (iii) as quoted by the Service Provider, valid for the stated period or thirty (30) days if unspecified.
A deposit of up to fifty percent (50%) of the price may be required at the Service Provider’s discretion.
5.2 Expenses
Unless otherwise specified in an applicable SOW, the Client shall reimburse the Service Provider for all out-of-pocket expenses incurred during the performance of the Services . The Service Provider shall substantiate such expenses with appropriate documentation if requested by the Client.
5.3 Annual Fee Increase
The Service Provider reserves the right to adjust the fees annually on the anniversary of this Agreement , in line with changes in the Consumer Price Index (CPI) as published by Statistics New Zealand. Adjusted rates and fees will not be lower than the previous rates and will remain in effect until the next adjustment. The Client agrees that this CPI-based adjustment does not constitute a material alteration to the Agreement and shall not be grounds for termination of this Agreement.
5.4 Fee Adjustments
The Service Provider reserves the right to vary fees for the Services from time to time due to external factors beyond the Service Provider’s control, such as market changes, cost variations, currency fluctuations, freight charges, or other relevant factors. The Client will be given at least thirty (30) days prior written notice of any such adjustment. This right to adjust fees is separate from the Annual Fee Increase outlined in clause 5.3 and applies to fee changes not related to CPI. During the thirty (30) day notice period, the Client may review and discuss the fee changes with the Service Provider.
The Service Provider also reserves the right to amend the price for variations to the agreed plan or specifications, billed at standard hourly rates (time and a half for after-hours work).
5.5 Schedule
All fees shall be payable in New Zealand Dollars.
Fees for the Services will be invoiced as set out in the applicable SOW. All invoices shall be paid by the Client on or before the due date, being no later than the 20th of a given month as dated on the invoice (“Due Date”).
Payments not made in cash are not deemed complete until cleared. Until then, the Service Provider retains ownership and rights under this Agreement.
The Service Provider may allocate payments toward any outstanding invoice and re-allocate payments in case of default. If not specified, payments will be allocated to maximise the Service Provider’s Purchase Money Security Interest as defined under the Personal Property Securities Act 1999 (“PPSA”).
5.6 Taxes
You are responsible for all freight, insurance, and taxes or governmental fees associated with the Services. Should you qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof.
5.7 GST
Unless stated as ‘GST inclusive,’ any price for a supply under this Agreement does not include GST, meaning GST will be added to the amount.
If the supply is taxable, the Service Provider can charge the Client an additional amount for GST, calculated by multiplying the price by the current GST rate. The Client must pay the GST amount at the same time as the original price, provided the Service Provider has issued a valid tax invoice.
5.8 Non-Payment
Fees that remain unpaid after the Due Date will incur interest on the outstanding amount until payment is received, at the lower of 1.5% per month or the maximum allowable rate of interest under applicable law.
In the event that payment is not received within four (4) days of the Due Date, the Client will be issued a reminder via email. If payment remains outstanding seven (7) days after the Due Date, the Client will receive a second reminder via email. Once the payment has been outstanding for seven (7) days, the Client will be considered to be in breach of this Agreement and the Service Provider may issue notice of such breach pursuant to clause 12.2(iv).
Should payment remain outstanding fourteen (14) days after the Due Date, the Client will be issued a third reminder via email, and the Service Provider reserves the right to suspend all technical labour Services, including the halting of any ongoing projects and the unavailability of support Services, until such time as the Client’s account is fully current.
If payment is not made twenty-one (21) days after the Due Date, the Client will receive a fourth and final reminder via email.
Should the Client’s account not be brought fully current, including payment of all overdue and current invoices, by the 20th of the following month, the Service Provider shall suspend all Services, and the Client acknowledges that this may result in permanent loss of data. Monthly or recurring charges will continue to accrue during any suspension period. The Client acknowledges that the Service Provider shall not be liable for any loss, damage, or costs incurred by the Client, directly or indirectly, as a result of such suspension, including but not limited to delays, data loss, or business interruptions.
5.9 Reversal of Payments
If a Client’s payment to the Service Provider is reversed, the Client is liable for the reversed amount and any related costs incurred by the Service Provider, provided the reversal is proven to be illegal, fraudulent, or in breach of the Client’s obligations under this Agreement.
5.10 Cancellation and Immediate Payment upon Default
Without limiting its legal remedies, the Service Provider may cancel any unfulfilled Client orders and require immediate payment of all amounts due if (i) any payment to the Service Provider becomes overdue or the Service Provider believes the Client cannot make future payments; (ii) the Client exceeds their credit limit; (iii) the Client becomes insolvent, meets with creditors, proposes an arrangement, or assigns assets for the benefit of creditors; or (iv) a receiver, manager, or liquidator is appointed for the Client or their assets
The rights provided under this clause are in addition to and do not limit the rights under clause 12.2.
5.11 Fee Disputes
Notices of fee disputes must be received by us within seven
(7) days after the applicable Service is rendered or the invoice date, whichever is later; otherwise, you waive your right to dispute the fee thereafter. The Client must state the invoice number, disputed amount, and reasons for the dispute (“Invoice Dispute Notice”).
Upon receiving an Invoice Dispute Notice, the Service Provider will not debit the disputed amount until a determination is made. The Client must still pay any undisputed amounts. The Service Provider will review the dispute within seven (7) days of receiving the Invoice Dispute Notice and notify the Client of the outcome, including any amount payable and reasons for the decision. The Service Provider may decline a disputed invoice claim if the Client asserts that a subscription, specified seat-count, or any part thereof was unnecessary, as this will not relieve the Client from its obligation to pay for the Services and does not constitute a valid reason for disputing an invoice.
If the Client disputes the Service Provider’s determination, it must initiate the dispute resolution process set out in clause 18 of this Agreement within seven (7) days of notification. If not, the Client will be deemed to have accepted the determination.

6. CREDIT CHECKS
6.1 Authorisation to Conduct Credit Checks
The Client acknowledges and agrees that the Service Provider may conduct credit checks and obtain credit-related information on the Client, including where the Client is a sole trader, partnership, or other non-limited organisation. This includes, but is not limited to, obtaining information about the Client’s credit history, creditworthiness, and financial standing from third-party credit reporting agencies or other relevant sources.
6.2 Purpose of Credit Checks
The Service Provider may conduct credit checks for the purposes of:
(i) assessing the Client’s suitability for the provision of Services under this Agreement;
(ii) managing any credit risks associated with the Client’s account; and
(iii) evaluating the Client’s ability to meet payment obligations under this Agreement.
6.3 Consent to Disclosure
By entering into this Agreement, the Client consents to:
(i) the Service Provider collecting and using the Client’s credit-related information for the purposes outlined in this clause; and
(ii) the disclosure of the Client’s information to credit reporting agencies, credit providers, or other relevant third parties as required to facilitate the credit check.
6.4 Notice for Non-Limited Organisations
Where the Client is a non-limited organisation, the Client agrees that personal credit information relating to any individuals associated with the organisation (e.g., sole traders, partners) may also be collected, used, and disclosed as part of the credit-checking process. The Client warrants that any necessary consents from such individuals have been obtained.
6.5 Retention and Use of Credit Information
The Service Provider will comply with its obligations under the Privacy Act 2020 in collecting, using, storing, and disclosing credit-related information obtained in accordance with this clause.

7. TITLE AND RISK
Ownership of all Goods supplied by the Service Provider remains with the Service Provider until:
(i) the Client has paid in full all amounts due for the Goods and Services; and (ii) the Client has fulfilled all other obligations to the Service Provider under this Agreement or any SOW.
The risk of loss, damage, or destruction to the Goods passes to the Client upon delivery. The Client is responsible for insuring the Goods from the time of delivery and must provide evidence of insurance upon request.
Until ownership of the Goods passes to the Client:
(i) the Client holds the Goods as bailee and on trust for the Service Provider and must return the Goods upon request;
(ii) any proceeds of insurance or sales for the Goods must be held on trust for the Service Provider and remitted on demand if the Goods are lost, damaged, or sold;
(iii) the Client must not sell, transfer, process, or intermix the Goods unless in the ordinary course of business at market value, and any resulting products will be held on trust for the Service Provider;
(iv) the Client must not grant any charge, encumbrance, or interest over the Goods; and
(v) the Service Provider retains the right to reclaim Goods in transit, enter premises to recover Goods, or initiate legal proceedings to recover unpaid amounts or Goods.
8. PERSONAL PROPERTY SECURITIES ACT 1999
The Client acknowledges and agrees that this Agreement constitutes a security agreement for the purposes of the PPSA. The Service Provider holds a security interest in all Goods supplied under this Agreement, including any proceeds derived from their sale, to secure the Client’s obligations under this Agreement, including payment. The Client indemnifies the Service Provider against reasonable costs and disbursements, including legal expenses, incurred in enforcing the rights under this clause.
To perfect and enforce this security interest, the Client agrees to:

(i) provide any information or sign documents reasonably required by the Service Provider to register and maintain a financing statement on the Personal Property Securities Register (PPSR);
(ii) reimburse the Service Provider for reasonable costs of registering or releasing any security interest;
(iii) notify the Service Provider of any changes to its business practices that may affect the proceeds of the Goods;
(iv) not register, or permit the registration of, any security interest over the Goods or their proceeds in favour of a third party without prior written consent from the Service Provider. Limitation, warranties and conditions as to fitness for purpose and merchantability) implied by legislation or otherwise, are excluded by the Service Provider.
9.2 Warranties
Each Party represents and warrants to the other that:
(i) it has the full legal capacity and authority to enter into this Agreement;
(ii) it possesses all necessary licenses and consents required to enter into and perform its obligations under this Agreement;
(iii) entering into this Agreement will not result in a breach of any existing agreements with third parties; and
(iv) this Agreement is executed by individuals who have been duly authorised to bind the respective.
The Client waives its rights as a debtor under sections 116,
120(2), 125, and 131 of the PPSA, and agrees that sections 114(1)(a), 133, and 134 of the PPSA do not apply to this Agreement, to the extent permitted by law. The Service Provider is also not required to provide a verification statement under section 148 of the PPSA.
The Client appoints the Service Provider as its attorney solely to take actions necessary to perfect or enforce the security interest, including signing documents on the Client’s behalf. This authority is limited to actions directly related to the security interest and ceases upon the full satisfaction of the Client’s obligations.
In the event of non-payment or insolvency, the Service Provider reserves the right to recover the Goods in accordance with the Personal Property Securities Act 1999 and other applicable laws. The Service Provider will provide reasonable written notice to the Client before initiating recovery actions, except where immediate action is necessary to prevent loss or damage to the Goods. The Service Provider will take reasonable steps to mitigate any loss arising from the recovery of Goods and may offset any recovered value against amounts owed by the Client.
Subject to any express provisions to the contrary, nothing in these terms is intended to contract out of any of the mandatory provisions of the PPSA.

9. WARRANTIES, DEFECTS AND RETURNS
9.1 Exclusion of Warranties
To the maximum extent permitted by law, the use of the Services by the Client (which includes the contents thereof and any storage or use of information) is at the Client’s sole risk.
The Services are provided on an ‘as is’ basis and except as provided under this clause 9 and in any express warranties contained in a SOW, to the extent permitted by New Zealand law, all warranties, terms, and conditions (including, without Parties.
The Service Provider warrants that the Services shall be performed:
(i) by qualified personnel in a professional and competent manner;
(ii) in accordance with the terms of this Agreement and any applicable SOW;
(iii) in compliance with the commercial standards generally accepted within the Service Provider’s industry; and
(iv) in compliance with all applicable New Zealand laws relevant to the provision of the Services.
9.3 Statutory Guarantees and Non-Excludable Rights
Nothing in this Agreement excludes, restricts, or modifies the statutory guarantees, or any condition, warranty, right, or remedy conferred on either Party by New Zealand law that cannot be excluded, restricted, or modified by agreement.
9.4 Inspection and Notification
The Client must inspect the Services on completion (or Goods on delivery) and notify the Service Provider in writing of any defects, shortages, damage, or non-compliance within thirty
(30) days. The Client must allow the Service Provider reasonable time to inspect the Services. Failure to do so will presume the Services and Goods are free from defects.
9.5 Returns Policy
Returns of Goods will only be accepted if the Client has complied with clause 9.4, and the Service Provider has agreed in writing to the return. The Goods must be returned at the Client’s expense within seven (7) days of delivery, must have been properly stored and used, and must be in their original condition with all packaging and accompanying materials intact.
9.6 Credit for Returns
The Service Provider may accept Goods for credit, subject to a twenty-five percent (25%) handling fee plus any freight.
9.7 Exclusions for Custom Items
Custom or non-stock items are not eligible for return or credit.
9.8 Second-Hand Goods
The Client accepts second-hand or reconditioned Goods as-is, with no warranty provided. The Service Provider is not liable for any loss or damage to or caused by these Goods.

10. LIMITATIONS OF LIABILITY
10.1 Liability Limitations
10.1.1 Limitation of Liability
To the extent permitted by law, neither Party shall be liable for any indirect, special, exemplary, consequential, or punitive damages, including but not limited to lost revenue, lost profits (except for fees owed to the Service Provider), savings, or other indirect or contingent economic losses arising from or related to this Agreement, any SOW, or the Services provided, nor for any data loss, data breaches, cybersecurity incidents or service interruptions, or for any delays in furnishing Services, even if advised of the possibility of such damages.
Nothing in this Agreement shall exclude or limit liability for:
(i) death or personal injury, to the extent not covered by the Accident Compensation Act 2001;
(ii) fraud or fraudulent misrepresentation;
(iii) damages arising from the negligence, or wilful misconduct of the Party seeking to limit its liability; or
(iv) any other liability that cannot be excluded or limited under applicable law.
Each Party’s liability shall be proportionately reduced to the extent that the claim arises from, or is contributed to by, the other Party’s actions, omissions, or failure to comply with its obligations under this Agreement.
10.1.2 Aggregate Liability
Except for these enumerated exceptions, the total liability of the Service Provider for damages from any and all claims arising out of or related to this Agreement, regardless of the action’s form (whether in contract, tort (including negligence), indemnification, or otherwise), including the breach of a condition or warranty that cannot be excluded, restricted, or modified by law, shall be limited to:
(i) for breaches related to Goods, the replacement or repair of the Goods, or payment of the cost of replacement or repair;

(ii) for breaches related to Services (excluding service level failures), the re-supply of the Services or the payment of the cost of re-supply; or
(iii) if none of the above apply, the Service Provider’s total liability shall be limited to the total fees paid by the Client for the specific Service related to the claim (excluding hard costs for licenses, hardware, etc.) during the three (3) months immediately preceding the date on which the cause of action accrued.
The limitations in this paragraph do not apply to (i) reasonable legal fees awarded to a prevailing Party, (ii) your indemnification obligations, and (iii) amounts due under the non-solicitation provision of this Agreement.
10.1.3 Specific Limitations of Liability
In addition to the above limitations, the Service Provider shall not be liable for any damages, losses, or claims arising from:
(i) the Client’s failure to follow the Service Provider’s advice or instructions;
(ii) the provision of inaccurate or incorrect information by the Client to the Service Provider;
(iii) unauthorised modifications to the Environment or Services by the Client;
(iv) use of non-compliant or unlicensed hardware or software within the Environment by the Client;
(v) unauthorised use of software by the Client or any breach of software licences for software provided by the Client for installation by the Service Provider;
(vi) the Client’s failure to back up data properly, or its interference with any backup systems or processes implemented by the Service Provider;
(vii) security breaches resulting from the Client’s failure to implement recommended security measures; and
(viii) errors or omissions by the Client or any related parties in the operation or management of the Environment or Services.
10.2 Errors and Omissions
The Client acknowledges and accepts that the Service Provider shall, without prejudice, have limited liability in respect of any alleged or actual error(s) and/or omission(s)
(i) arising from an inadvertent mistake made by the Service Provider in the formation and/or administration of this Agreement; and/or (ii) contained in or omitted from any literature (whether in hard copy or electronic form) supplied by the Service Provider relating to the Services.
In the event that such an error and/or omission occurs, and is not attributable to the negligence, wilful misconduct, or gross negligence of the Service Provider, the Client shall not be entitled to treat this Agreement as repudiated nor render it invalid.
The Service Provider’s liability for any error and/or omission, whether under this clause or otherwise, shall be limited to the correction of such error and/or omission and any necessary adjustments to the Services, provided that such correction does not result in significant additional cost to the Client.
10.3 Survival
The provisions of this clause will survive any termination of the Agreement.

11. INDEMNIFICATION
Each Party (the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other Party (the “Indemnified Party”), including each of its information providers, licensors, licensees, employees, officers, directors, and representatives, from and against any and all losses, damages, costs, expenses, or liabilities, including reasonable legal fees, arising out of or related to any breach of this Agreement, any acts or omissions by the Indemnifying Party, or any claims made by third parties against the Indemnified Party.
The indemnification under this clause shall not apply to any claim to the extent that such claim arises from or is caused by the Indemnified Party’s negligence, wilful misconduct, or breach of this Agreement.
The Indemnified Party shall promptly notify the Indemnifying Party in writing of any claim or cause of action for which indemnification is sought, and such failure to provide prompt notice shall not relieve the Indemnifying Party of its indemnification obligations unless the delay materially prejudices its ability to defend the claim.
The Indemnified Party may control the intake, defence, and resolution of any claim, with the Indemnifying Party retaining the right to participate in the defence at its sole expense. The Indemnified Party shall keep the Indemnifying Party reasonably informed of the progress of the defence.
No claim for which indemnification is sought may be settled without the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld or delayed. The provisions of this clause shall survive any termination or expiration of this Agreement.

12. TERMINATION
This Agreement shall commence on the Effective Date and shall continue until terminated as provided herein. Each SOW will have its own term and shall be terminated only as specified herein. The termination of one SOW shall not, by
itself, cause the termination of this Agreement or affect the status or progress of any other SOW between the Parties.
12.1 Termination Without Cause
Neither Party may terminate this Agreement without cause while an SOW is in progress, unless otherwise agreed in writing. An SOW may not be terminated without cause before its natural expiration unless expressly permitted in the applicable SOW. If all active SOWs have been completed and no further Services are required, either Party may terminate this Agreement by providing thirty (30) days written notice to the other Party.
If the Client otherwise terminates this Agreement or any SOW without cause and without the Service Provider’s consent, the Client will be responsible for the Termination Fee outlined in clause 12.2.1.
Notwithstanding the foregoing, the Service Provider may terminate this Agreement or any SOW at any time, without cause, by providing thirty (30) days written notice. The Service Provider may also cancel this Agreement at any time before the commencement of Services by notifying the Client if the Service Provider determines that providing the Services is not technically, commercially, or operationally feasible.
12.2 Termination for Cause
Should the Client, for any reason, cause the Services to be delayed for more than three (3) months after the acceptance date, this Agreement will be terminated by the Service Provider (at their sole discretion) and all Services completed, but not billed or paid, will be payable in full within seven (7) days from the date of the submitted invoice.
Notwithstanding any other provisions expressed or implied in this Agreement, either Party may immediately terminate this Agreement or the relevant SOW by providing written notice to the other Party in the event that the other Party:
(i) goes into liquidation (other than a voluntary liquidation for the purpose of amalgamation or reconstruction) or receivership or becomes insolvent or enters into an agreement or composition with its creditors;
(ii) becomes subject to bankruptcy, dissolution, or any similar event affecting its ability to fulfil its obligations under this Agreement;
(iii) is subject to a force majeure event, as defined in clause 19.16, that continues for more than ninety (90) days;
(iv) commits any breach of this Agreement or of a SOW and fails to remedy that breach within thirty (30) days after receiving notice from the other Party requiring the breach to be remedied.
12.2.1 Consequences Upon Termination
On termination, the Client’s right to use the Services ceases immediately.
If the Service Provider terminates this Agreement or any SOW for cause, or if you terminate any SOW without cause prior to its expiration date, we shall be entitled to receive and you agree to pay all amounts that would have been paid to us had this Agreement or SOW remained in effect (“Termination Fee”). The Termination Fee represents the actual and reasonable costs incurred by the Service Provider in reliance on the Agreement, and it is due within thirty (30) days of the termination date.
If the Client terminates this Agreement or any SOW for cause, any prepaid fees for Services not yet rendered will be refunded to the Client on a prorated basis from the effective date of termination to the end of the prepaid period, with deductions for any costs already incurred.
Certain fees are non-refundable, including but not limited to setup fees, administrative fees, and costs already incurred by the Service Provider such as hardware, software, peripherals or accessories purchased through the Service Provider, unless otherwise specified in a SOW.
Upon termination of this Agreement, the Parties shall mutually agree in writing whether any current SOWs shall remain in effect until the end of their respective term. In such cases, the terms set out herein shall continue to govern any ongoing SOWs, unless otherwise specified in the individual SOW or mutually agreed in writing by both Parties.
The termination or expiry of this Agreement shall not affect those rights or liabilities of each Party which accrued prior to the date of termination, nor shall it affect any provision expressly stated or implied to operate after termination. Any rights and obligations under a SOW that remains in effect after the termination date shall continue until the SOW’s completion.
12.2.2 Client Activity as a Basis for Termination
If (i) Client-supplied equipment hardware, software, or any actions undertaken or not taken by you cause malfunctions to the Environment requiring remediation by us on three (3) or more occasions, and you fail to resolve the issue as directed, or (ii) you or any of your Personnel or representatives engage in behaviour that makes it impractical or unreasonable for
us to provide the Services, we may terminate this Agreement or the applicable SOW for cause with fourteen (14) days written notice, or amend the SOW to exclude coverage for the malfunctioning items.
12.3 Repayment of Discounted Fees
If you are provided with a price discount or fee waiver under a SOW based on your commitment to retain our Services for a minimum term, and we terminate this Agreement or any SOW
for cause, or you terminate this Agreement or any SOW without cause, you agree to pay us the amount of the fee waiver or the difference between the discounted rates and the non-discounted rates under that SOW, calculated from the effective date of the SOW through the date of termination.
12.4 Mutual Consent
The Client and Service Provider may mutually agree in writing to terminate a SOW or this Agreement at any time.
12.5 Licensed Equipment and Software Removal
Any Goods, equipment or software provided by the Service Provider to the Client under this Agreement, which is leased or licensed and not sold or transferred, must be returned or made accessible for removal upon termination of this Agreement or any SOW. The Client shall grant the Service Provider access during normal business hours for this purpose. If access is denied, or if any Goods or equipment is missing, damaged (excluding normal wear and tear), or Service Provider-supplied software is missing, the Service Provider may invoice the Client for the full replacement value, which the Client agrees to pay immediately.
Time spent by the Service Provider in recovering or removing such equipment or software, including any associated travel, labour, or costs, shall be chargeable to the Client at the Service Provider’s then-current rates.
This clause applies only to leased or licensed items and excludes Goods intended for purchase under this Agreement or any applicable SOW.
12.6 Transition
If you request our assistance to transition away from our Services, we will provide such assistance if (i) all fees due to us are paid in full prior to our assistance, and (ii) you agree to pay our then-current hourly rate for such assistance, with up-front amounts as we may require.
12.7 Data Retention
Unless expressly stated in a SOW, we have no obligation to store or maintain any Client data following the termination of this Agreement. All data, including backups, will be permanently deleted upon termination unless the Client notifies the Service Provider in writing prior to termination that they intend to take ownership of the data or request its migration. Any transfer, migration, or extended retention of data will be subject to additional charges as agreed. You agree to hold us harmless and indemnify us against any claims, costs, fees, or expenses arising from or related to the deletion of your data upon termination of this Agreement.

13. CONFIDENTIALITY
13.1 Defined
For the purposes of this Agreement, “Confidential Information” refers to any non-public information disclosed by one Party (the “Discloser”) to the other Party (the “Receiver”) that is designated as confidential or should reasonably be understood to be confidential. This includes, but is not limited to business plans, financial data, customer and supplier lists, customer data, technical specifications, software code, research and development details, internal policies and documents, personal information, legal matters, and related information.
Confidential Information does not include information that has entered the public domain through no wrongful act or omission of the Receiver, was independently developed by the Receiver, or was lawfully and independently provided to the Receiver by a third party not under an obligation of confidentiality.
13.2 Use
The Receiver agrees to maintain the confidentiality of the Discloser’s Confidential Information and not to use or disclose such information to any third party, except as expressly permitted in writing by the Discloser or as necessary to fulfil the Receiver’s obligations under this Agreement.
The Receiver shall ensure that any of its Personnel, or representatives who have access to the Discloser’s Confidential Information are bound by written confidentiality obligations that are at least as stringent as those contained in this Agreement.
13.3 Due Care
The Receiver shall exercise the same level of care to protect the Discloser’s Confidential Information as it uses to safeguard its own confidential and proprietary information, which must be at least a commercially reasonable standard of care. Should the Parties enter into any agreement related to Confidential Information (such as a business associate agreement) after the Effective Date, the agreement imposing higher confidentiality standards will govern the use of Confidential Information.
13.4 Compelled Disclosure
If the Receiver is legally required to disclose any Confidential Information, the Receiver shall promptly notify the Discloser in writing, allowing the Discloser to seek a protective order or other remedy. The Receiver will assist, at the Discloser’s expense, in obtaining such protection. If a protective order or waiver is not obtained, the Receiver may disclose only the portion of Confidential Information that legal counsel advises is legally required to be disclosed.
13.5 Return or Destruction of Information
Upon termination of this Agreement, or at any time upon the written request of the Discloser, the Receiver shall promptly return to the Discloser all documents and materials containing, reflecting, incorporating, or based on the
Discloser’s Confidential Information. If the Discloser so directs, the Receiver shall instead destroy all such documents and materials and provide written certification of their destruction. This obligation includes, but is not limited to, the return or destruction of Confidential Information stored electronically or in hard copy form. The Receiver shall ensure that any third parties to whom it has disclosed the Discloser’s Confidential Information comply with these obligations. The Receiver shall confirm in writing its compliance with this section within ten (10) business days of such termination or request.
13.6 Survival of Confidentiality Obligations
Notwithstanding any termination or expiration of this Agreement, the Receiver’s obligations with respect to the confidentiality and protection of the Discloser’s Confidential Information shall survive for a period of three (3) years following such termination or expiration. The Receiver’s obligation to maintain the confidentiality of any trade secrets of the Discloser shall continue for as long as such information remains a trade secret under applicable law.

14. DATA PROTECTION AND PRIVACY
14.1 Service Provider Security Measures
The Service Provider shall comply with all applicable laws and regulations relating to the protection, use, storage, and processing of personal information. The Service Provider shall implement and maintain reasonable cybersecurity measures in accordance with industry standards to protect the Client’s data.
The Service Provider shall use, collect, and store Client data, including personally identifiable information, only to the extent necessitated by this Agreement and any SOWs, and solely for the purposes specified therein. We will not use, disclose, or transfer such data or information except as necessary to perform our obligations under this Agreement, as specifically authorised by you or in accordance with applicable law. The Service Provider shall ensure that the collection, use, and processing of Client data complies with all applicable data protection and privacy laws, including the Privacy Act 2020. The Service Provider shall only use personal information to fulfil its obligations under this Agreement.
14.1.1 Privacy and Tracking Technologies
Privacy limitations extend to cookies and similar tracking technologies used on the Service Provider’s website, which may collect personal information such as IP address, browser type, and other details, website usage and traffic patterns; and email interaction reports. The Client may manage or withdraw consent to cookies through their browser settings.
14.1.2 Authorised Use of Client Information
The Client authorises the Service Provider to access, collect, and use information, including contact and credit history, for
(i) assessing creditworthiness, (ii) marketing, with the Client’s consent, and (iii) disclosing Client information to credit providers or agencies for credit reference, debt collection, or default notification.
14.1.3 Client’s Rights and Information Management
The Client has the right to request a copy of their personal information held by the Service Provider and request corrections if necessary. The Service Provider will destroy personal information upon the Client’s request or when no longer required, unless needed to fulfil legal obligations.
Privacy complaints may be sent to the Service Provider via email. The Service Provider will respond within seven (7) days and aim to resolve the complaint within twenty (20) days. If unsatisfied, the Client may contact the Privacy Commissioner.
14.1.4 Limitations of Liability for Security Measures
While the Service Provider shall implement and maintain robust security measures, it does not warrant or guarantee that these measures will prevent all security breaches, malware infections, cyberattacks, unauthorised access or other malicious activities. The Client acknowledges that no security measures can fully eliminate all risks of unauthorised access or breaches. The Service Provider shall not be held liable for any damages or losses resulting from such incidents, except to the extent caused by the Service Provider’s failure to comply with applicable laws, or its gross negligence or wilful misconduct. The Service Provider shall also not be liable for any loss, corruption, or deletion of files or data (including software) resulting from illegal hacking, mislabelling, or misfiling.
14.2 Client Security Measures
The Client is responsible for maintaining the security of its own systems and data, including implementing and maintaining appropriate security measures such as firewalls, antivirus software, and encryption. The Client shall ensure that all end-user devices accessing the Environment comply with the Service Provider’s security policies and guidelines, as updated and provided by the Service Provider from time to time. The Client shall also bear all costs associated with investigating and mitigating any breaches, including any required notifications to affected individuals and regulatory bodies. The Service Provider will assist with the investigation and mitigation of the breach at the Client’s expense, billed at standard hourly rates.
14.2.1 Data Accuracy and Sharing
The Client warrants that all data, information, and materials provided to the Service Provider under this Agreement are accurate, complete, and up-to-date. The Client further warrants that it has the legal right and all necessary permissions to share such data with the Service Provider for the purposes of delivering the Services. The Client agrees to indemnify and hold harmless the Service Provider against any claims, losses, or damages arising from inaccurate data or the Client’s failure to obtain the necessary permissions to share such data.
14.2.2 Obligation to Mitigate
The Client agrees to take all reasonable steps to mitigate any damages, losses, or liabilities arising from or related to a breach of this Agreement or any data breach involving the Client’s information.
14.3 Notification Requirements
In the event of any unauthorised access, disclosure, or loss of personal information (a “Data Breach”), the affected Party shall notify the other Party and relevant authorities as required by law. Both Parties shall cooperate with each other to notify any affected individuals, as required by applicable privacy laws.
Notification must:
(i) be made within seventy-two (72) hours of discovering the Data Breach; and
(ii) include a description of the nature of the Data Breach, the types of personal information affected, and steps being taken to mitigate the breach.
Each Party is responsible for all reasonable and proportionate costs related to investigating, mitigating and remediating Data Breaches caused by their own systems, actions, or omissions. For breaches involving both Parties, costs will be allocated proportionately based on their degree of fault.
The Service Provider will assist the Client with the investigation and mitigation of any breaches caused by their systems, actions, or omissions at the Client’s expense, billed at standard hourly rates.
Both Parties agree to maintain comprehensive logs of their most critical data and activities for a reasonable amount of time, as determined by the operational needs and regulatory requirements of each Party. These logs shall include, but are not limited to, access logs, transaction logs, system events, data-handling activities and any other relevant activities that could aid in diagnosing and responding to any Data Breaches or security incidents.
14.4 Data Loss
Under no circumstances will the Service Provider be responsible for data that is lost, corrupted, or rendered unreadable due to communication or transmission errors, related failures, equipment failures (including but not limited to issues related to silent hardware corruption), or the failure to back up or secure data from portions of the Environment not expressly designated in the applicable SOW as requiring backup or recovery Services.
The Client acknowledges that providing support to computer systems carries inherent risks, including but not limited to security breaches, data loss, data corruption, or the complete loss of files or directories. The Service Provider shall not be liable for any damages resulting from these risks or from the failure of any maintained storage device, data backup device, or load balancing functionality to operate without error, except as expressly stated in the applicable SOW.
14.5 Data Backup and Recovery
The Service Provider shall provide data backup and recovery Services as specified in the applicable SOW. The Client is responsible for ensuring that critical data is regularly backed up in accordance with the agreed schedule unless the Service Provider has been expressly engaged to manage backups. It is the responsibility of the Client to ensure that prescribed backup operations performed by the Service Provider are adequate.
Successful implementation of the Service Provider’s backup procedures depends on the Client’s compliance with the Service Provider’s instructions and procedures. The Client shall not alter, disable, or interfere with any software or hardware systems implemented by the Service Provider to facilitate the backup process.
In the event of data loss, the Service Provider will assist in recovery efforts as per the terms of the SOW.

15. INTELLECTUAL PROPERTY AND OWNERSHIP
15.1 Defined
For the purpose of this Agreement, “Intellectual Property” shall mean all intellectual property rights, including but not limited to patents, trademarks, service marks, trade names, copyrights, moral rights, trade secrets, know-how, confidential information, proprietary processes, designs, databases, database rights, inventions, and any other proprietary rights or forms of intellectual property, whether registered or unregistered, and all applications for registration thereof, which may now or in the future subsist.
15.2 Pre-Existing Intellectual Property
All Intellectual Property in any pre-existing materials, products, software, documentation, or other work products that were created, developed, or acquired by either Party prior to the commencement of this Agreement shall remain the sole and exclusive property of the respective Party. Each Party grants the other a non-exclusive, non-transferable, non-sublicensable license to use its pre-existing Intellectual Property solely to the extent necessary to fulfil its obligations under this Agreement and any applicable SOW. This license shall terminate immediately upon the expiration or termination of this Agreement or the applicable SOW.
15.3 Client Data
Client data provided to the Service Provider remains the Client’s property. The Service Provider will use such data and Intellectual Property solely for fulfilling its obligations under this Agreement.
15.4 Deliverables
All Intellectual Property in the Deliverables remains the exclusive property of the Service Provider or its licensors. The Client has no ownership rights in the Deliverables. “Deliverables” shall mean any and all materials, products, software, documentation, reports, analyses, and other work products developed or provided by the Service Provider to the Client pursuant to this Agreement and any applicable SOW.
15.5 Usage Rights
Subject to this Agreement, the Service Provider grants the Client a non-exclusive, non-transferable, non-sublicensable license to use the Deliverables only for its internal operations and as specified in this Agreement and any SOW. Any other use requires the Service Provider’s prior written consent.
The Client’s license to use the Deliverables shall terminate immediately upon expiration or termination of this Agreement or applicable SOW. Upon termination, the Client shall cease use and return or destroy all copies of the Deliverables, as directed by the Service Provider.
15.6 Restrictions on Use The Client shall not:
(i) modify, alter or create derivative works based on the Deliverables;
(ii) distribute, sell, lease, license, sublicense, assign, or otherwise transfer the Deliverables to any third party;
(iii) reverse engineer or otherwise attempt to derive the source code of any software Deliverables, except as permitted by law; and
(iv) remove or alter proprietary notices , labels, or marks on the Deliverables.
15.7 Residuals
Notwithstanding any other provision of this Agreement, the Service Provider shall be free to use, for any purpose, the Residuals resulting from the Services provided to the Client, provided that such use does not result in the disclosure or use of the Client’s Confidential Information or trade secrets. The term “Residuals” means information in non-tangible form which is retained in the unaided memory of persons who have had access to the Client’s information, including ideas, concepts, know-how, skills or techniques.

16. THIRD PARTY PRODUCTS AND SERVICES
16.1 Reliance on and Substitution of Third Party Products and Providers
The Client acknowledges that the Services provided under this Agreement may rely on third party products and services, which may not be explicitly identified in a SOW. The Service Provider reserves the right to utilise or change third party providers at its sole discretion, provided that such changes do not materially diminish the Services provided to the Client.

The Client agrees to comply with the applicable usage policies, terms, and conditions of any third party providers, including updates to such terms. The Client acknowledges that any changes made by the third party providers to their terms or services are outside the control of the Service Provider.
The Service Provider will provide the Client with the relevant policies and terms upon request or prior to the commencement of the applicable services. The Service Provider will also make reasonable efforts to assign, transfer, and facilitate all applicable warranties and third party service level commitments for third party products or services to the Client.
16.2 Third Party and Manufacturer Default
The Client acknowledges that the Service Provider is not liable for any issues, defects, or failures in third party products or services, including Goods not manufactured by the Service Provider. This includes any consequential, incidental, or indirect damages arising from the use or inability to use such products.
For Goods not manufactured by the Service Provider, the Client agrees to rely exclusively on the warranties provided by the manufacturer for all claims related to defects, performance, or quality. The Client indemnifies and holds the Service Provider harmless for any losses, damages, or claims arising from the failure of any third party vendor or manufacturer to meet their obligations, including warranties or defect remedies.
The Service Provider will handle all escalations related to third party products, including warranty claims or defect resolutions, on behalf of the Client. The Client agrees to pay the Service Provider’s current hourly rates for this service, as well as any associated third party fees or costs incurred.
16.3 Third Party Cost Increases
Prices for subscriptions provided by third party suppliers may be subject to change. Any such changes will be communicated to the Client and automatically reflected in the Client’s billing cycle. The Client agrees to indemnify and reimburse us for all third party and supplier costs incurred on behalf of the Client and invoiced by us.
16.4 Third Party Software Obligations
If the Client terminates this Agreement or any associated services prior to the expiration of their term, the Client shall remain liable for all amounts payable under any term-based agreements procured by the Service Provider on the Client’s behalf. This includes, but is not limited to, third party software licenses, subscriptions, telecommunications services, or network solutions. The Service Provider reserves the right to pass on any termination-related costs, such as early termination fees or outstanding charges. These payment obligations shall survive termination of this Agreement.
16.5 Microsoft NCE License Termination or Transfer Costs
If the Service Provider commits to a twelve (12) month Microsoft New Commerce Experience (NCE) license on the Client’s behalf, and the business relationship is terminated before the end of that period, the Service Provider may pass on all costs associated with the license transfer or early termination. These costs may include transfer fees to another Cloud Solution Provider or early termination fees if the license cannot be transferred.
The costs passed on to the Client will be based on the rules, policies, and fee structures stipulated by Microsoft at the time of termination or transfer. The Service Provider will inform the Client of any changes to Microsoft’s policies that might impact these costs as soon as reasonably practicable after becoming aware of such changes.

17. ADDITIONAL TERMS
17.1 Trusts
If the Client acts as a trustee of any trust (“Trust”) at the time of or during this Agreement, the Client agrees that this Agreement extends to all rights of indemnity the Client holds against the Trust and its trust fund. The Client confirms it has full authority under the Trust to enter into this Agreement and that nothing in the Trust limits this right of indemnity. The Client will not release or prejudice this right or commit any breach of trust. The Client further agrees not to, without the prior written consent of the Service Provider (such consent not to be unreasonably withheld), permit or allow the removal or replacement of the Client as trustee, any changes to the terms of the Trust, any distribution of Trust capital, or any resettlement of Trust property.
17.2 EULAs
The Client hereby authorises the Service Provider to accept end-user license agreements (“EULAs”) on the Client’s behalf, as necessary for the provision of Services under this Agreement. The Client acknowledges and agrees to be bound by the terms and conditions of such EULAs and assumes all responsibilities and obligations arising therefrom. If the Client is required to enforce the provisions of a EULA, the Client will look only to the applicable third party provider for such enforcement. We reserve the right to modify or amend any applicable SOW to ensure our ongoing compliance with the terms of any third party EULAs.
17.3 BYOD
Unless otherwise stated in a SOW, Devices will not receive or benefit from the Services while the Devices are detached from, or unconnected to, the Environment. “Devices” means all devices, peripherals and/or computer processing units, including mobile devices (such as laptops, computers, smart phones and tablet computers). The Service Provider is not responsible for supporting, diagnosing, or resolving any issues within the Environment caused by the connection or use of unidentified or unauthorised Devices. Furthermore, the Service Provider is under no obligation to provide Services to Devices that have not been expressly identified and authorised in the applicable SOW.
17.4 User Count Audit and Billing Adjustments
The Service Provider shall periodically review the managed user count in accordance with its internal audit schedule. Should this audit reveal an increase in the number of users, the Service Provider reserves the right to adjust the service fees to reflect the costs associated with the additional users, with the option to back bill the Client for these extra costs. Conversely, should the audit indicate a decrease in the number of managed users, the Service Provider agrees to provide a credit to the Client, corresponding to the reduction in users, applicable to future billing cycles.
17.5 Artificial Intelligence
The Service Provider may use Artificial Intelligence (AI) technologies to enhance and optimise the Services and will ensure compliance with applicable data protection laws. While AI technologies will be implemented to meet industry standards for performance and reliability, the Service Provider does not guarantee that AI technologies will be error-free or achieve specific results. The Client agrees to use AI-driven recommendations responsibly and acknowledges that the Service Provider is not liable for any damages arising from the use or misuse of AI technologies, except in cases of gross negligence or wilful misconduct.
If the Client implements or uses AI tools, including those provided or configured by the Service Provider, the Client assumes full responsibility for ensuring compliance with applicable laws, managing data access and permissions, and addressing any risks associated with their use or outcomes. The Service Provider is not liable for risks or losses arising from the Client’s use or misuse of AI tools.

18. DISPUTE RESOLUTION
Subject to this clause, a Party may not commence legal proceedings without first complying with the procedure set out in this clause.
18.1 Good Faith Negotiations
In the event of any dispute arising out of or in connection with this Agreement, the Parties shall first seek to resolve the dispute through good faith negotiations. Either Party may initiate this process by providing written notice to the other Party, outlining the nature of the dispute.
18.2 Mediation and Arbitration
18.2.1 Mediation
If the dispute cannot be resolved through negotiations within fourteen (14) days, the Parties agree to attempt to resolve the dispute through mediation. The mediation will be conducted in accordance with the rules and procedures of the New Zealand Dispute Resolution Centre, or other alternative dispute resolution body as mutually agreed upon by the Parties. The mediation shall be held in a mutually agreed upon location, and the Parties agree to participate in good faith to resolve the dispute.
Each Party shall bear its own legal and other costs incurred in connection with the mediation, and the mediator’s fee shall be split equally between the Parties.
18.2.2 Arbitration
If the dispute is not resolved through mediation within thirty (30) days from the date of the mediation notice, either Party may submit the dispute to binding arbitration. The arbitration will be conducted in accordance with the rules of the Arbitration Act 1996. In case of any conflict between those rules and the procedures herein, this clause shall prevail. The arbitration shall be held in a mutually agreed upon location, before an arbitrator mutually agreed upon by the Parties.
The arbitrator shall have expertise in contract law, intellectual property, and information technology transactions, where possible. If the Parties cannot agree on an arbitrator within seven (7) days after a demand for arbitration is filed, the arbitration organisation or forum shall appoint the arbitrator.
The costs of the arbitration, including the arbitrator’s fees, shall be borne by the Parties as determined by the arbitrator in the final award. Each Party shall bear its own legal and other costs incurred in connection with the arbitration. The decision of the arbitrator shall be final and binding on the Parties.
18.2.3 Electronic Mediation and Arbitration
The Parties agree that any mediation or arbitration under this Agreement may be conducted electronically via secure video conferencing platforms that comply with industry standards for confidentiality and data protection. Both mediation and arbitration sessions will ensure confidentiality and security, using reliable and legally compliant platforms. Protocols for electronic hearings, including document sharing and communication, will be mutually agreed upon and may be amended by consent. Outcomes of electronic sessions will be legally binding and enforceable under the applicable laws of New Zealand. All proceedings will comply with relevant legal and regulatory standards in New Zealand.
18.2.4 Court Proceedings
If any dispute, controversy, or claim arising out of or in connection with this Agreement is not resolved through mediation or arbitration as provided above, or if either Party seeks injunctive or equitable relief, then either Party may initiate court proceedings.

19. MISCELLANEOUS
19.1 Acknowledgment of Risk Allocation
Each Party acknowledges that the terms of this Agreement have been drafted in good faith to reflect a fair and transparent allocation of risks and responsibilities.
19.2 Publicity
Neither Party will advertise or publicly announce any matter relating to the existence of this Agreement or disclose any of its terms, without the other Party’s prior written consent, which will not be unreasonably withheld.
19.3 Compliance
Unless otherwise expressly stated in a SOW, the Services are not designed, nor shall they be used, to attain the Client’s full regulatory compliance with any rules, regulations or requirements applicable to the Client’s business or operations. The Client remains solely responsible for determining and achieving its compliance obligations.
19.4 Disclosure
The Client warrants no law or regulation impedes our provision of Services. The Client agrees to notify us if the Client becomes subject to any of the foregoing which, in our discretion, may require a modification to the scope or pricing of the Services.
19.5 Exclusion of Consumer Guarantees
The Parties agree that to the maximum extent permitted by law, the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the New Zealand Fair Trading Act 1986 do not apply to the supply of the Services or this Agreement, provided the Client is acquiring the Services for the purposes of a business. If the Client is not acquiring the Services for the purposes of a business, the statutory protections under these Acts shall apply to this Agreement, and nothing in this Agreement excludes or limits those protections.
19.6 Change in Control
The Client shall provide the Service Provider with no less than fourteen (14) days prior written notice of any proposed change in ownership or other significant changes to the Client’s details, including but not limited to changes in the Client’s name, address, contact information, trustees, or business practices. The Client shall be liable for any loss incurred by the Service Provider resulting from the Client’s failure to comply with this clause.
19.7 Assignment
The Service Provider may assign its rights and obligations under this Agreement or any SOW to a successor in ownership in connection with any merger, consolidation, or sale of substantially all the assets of its business, or any other transaction in which more than fifty percent (50%) of its voting securities are transferred. The Service Provider shall give the Client at least thirty (30) days prior written notice of such assignment. This Agreement and any SOW will be binding upon the Party to whom it is assigned or transferred.
The Client may not assign or transfer this Agreement or any SOW without the Service Provider’s prior written consent. If consent is granted, the Client must ensure that any proposed assignee is reasonably capable of fulfilling the Client’s duties and obligations under this Agreement and any applicable SOW, including financial obligations. The Client shall provide the Service Provider with written confirmation from the assignee of their capability before the assignment becomes effective.
If the Service Provider does not consent to the assignment or if the assignee does not agree to assume all the Client’s rights and obligations, the Client shall remain liable for the Termination Fee.
19.8 Security
The Client acknowledges that no security solution is one hundred percent (100%) effective. Any security system may be bypassed or rendered ineffective by certain types of malware, including ransomware that was not known to the malware prevention industry at the time of infection, or which was intentionally introduced into the Environment. We do not warrant or guarantee that all malware or malicious activities can be detected, avoided, quarantined, or removed, nor do we guarantee that any affected data will be recoverable. Unless explicitly stated in a SOW, the recovery of such data is not included in the scope of a SOW.
19.9 Amendment
Any modification or amendment to this Agreement or any SOW must be in writing and agreed upon by both Parties.
19.10 Time Limitations
The Parties agree that, unless otherwise prohibited by law, any action arising from this Agreement or any SOW must be initiated within twelve (12) months from the date the cause of action accrues, or the action will be permanently barred.
19.11 Severability
If any provision of this Agreement or a SOW is declared invalid, such provision will be ineffective only to the extent of the invalidity, and the remainder of that provision and all remaining provisions of this Agreement or any SOW will be valid and enforceable to the fullest extent permitted by applicable law.
19.12 Collections
If the Service Provider is required to initiate any
collections-related action due to non-payment of the Client’s account, the Client will be liable for all costs incurred by the Service Provider in connection with the enforcement of its rights. These costs include, without limitation, legal costs on a solicitor and own client basis, fees charged by debt collection agencies or mercantile agents, and dishonour or bank fees incurred in connection with failed payments or remittances made, or that should have been made, by the Client.
19.13 Other Terms
The Service Provider will not be bound by any terms or conditions printed on or included in any purchase order, invoice, memorandum, or other written communication provided by the Client, unless duly incorporated into this Agreement, a SOW, or unless the Service Provider has expressly accepted those terms in writing.
19.14 No Waiver
The failure of either Party to enforce or insist upon compliance with any term of this Agreement or any SOW does not constitute a waiver of that term.
19.15 Entire Agreement
This Agreement, along with all SOWs, constitutes the entire agreement between the Parties. No representation or statement not embodied herein is binding.
19.16 Force Majeure
Neither Party shall be liable for costs, delays, or failures to perform any obligations under this Agreement or any SOW due to circumstances beyond their reasonable control. Such circumstances include, but are not limited to, acts of God, natural disasters, pandemics, government actions, acts of terrorism, labour disputes, widespread cybersecurity incidents (e.g., infrastructure and ransomware attacks or critical software vulnerabilities), and other force majeure events.
If a Party seeks to rely on this clause, it must notify the other Party in writing as soon as reasonably practicable, detailing the force majeure event and the extent to which it is unable to perform its obligations; and use reasonable endeavours to minimise the duration and adverse consequences of the force majeure event.
For the avoidance of doubt, this clause does not apply to obligations relating to routine data security or confidentiality measures where the affected Party could reasonably have mitigated the risk. This clause also does not apply to any obligation to pay amounts due and payable under this Agreement.
19.17 Non-Solicitation
For the duration of this Agreement and any SOW and for a period of twelve (12) months following their termination, the Client agrees not to directly or indirectly solicit, induce, or influence any of the Service Provider’s Personnel to terminate or reduce their employment, agency, or business relationship with the Service Provider. For the purposes of this clause, Personnel includes all employees, and contractors, consultants and subcontractors with whom the Client had direct interactions.
19.17.1 Compensation
In the event of a breach of the terms of this section, the Parties acknowledge and agree that the damages to the other Party would be difficult or impracticable to determine, and in such event, the Client shall pay the Service Provider liquidated damages, not as a penalty, equivalent to twenty-five percent (25%) of the current salary of the solicited Personnel. This percentage reflects a genuine pre-estimate of the loss that the Service Provider would suffer due to such a breach.
The Client shall also reimburse the Service Provider for all recruitment and training costs incurred to replace any solicited Personnel, and for any lost revenue attributable to the solicitation of the Service Provider’s Personnel. The Service Provider may seek injunctive relief to prevent further breaches of this clause.
If any provision of this clause is deemed invalid or unenforceable, it will be adjusted to the minimum extent necessary to preserve the intent and effect of this clause.
19.18 Survival
The provisions contained in this Agreement and any SOW that by their context are intended to survive termination or expiration of this Agreement will survive.
19.19 Governing Law
This Agreement shall be governed, construed and enforced in accordance with the laws of New Zealand and the Parties submit to the non-exclusive jurisdiction of the New Zealand courts.
19.20 No Third Party Beneficiaries
This Agreement and any SOW is entered into solely for the benefit of the Parties involved. It is not intended to confer any rights or benefits upon any third party, nor shall any third party have the right to rely on or enforce any part of this Agreement.
19.21 Authorised Representations
None of the Service Provider’s agents or representatives are authorised to make any representations, statements, conditions, or agreements that have not been expressly approved in writing by the Service Provider. The Service Provider shall not be bound by any such unauthorised representations, statements, conditions, or agreements.
19.22 Usage in Trade
No trade usage, or other regular practice of dealing between the Parties shall be used to modify, interpret, supplement, or alter the terms of this Agreement or any SOW in any way.
19.23 Notices
Where any notice, amendment, or similar communication is required under this Agreement or any SOW, it may be sent by mail, overnight courier, or email. Such communications will be deemed delivered:
(i) three (3) business days after being deposited in the mail, provided it is sent by registered or certified mail, postage prepaid;
(ii) one (1) business day following delivery by an overnight courier service;
(iii) immediately upon sending when sent by email, provided the recipient’s system is functioning properly and capable of receiving the email.
Notices sent by email must be addressed to the recipient’s last known email address, all other notices must be sent to the addresses contained herein. Each Party agrees to promptly update the other Party in writing of any changes to their contact information to ensure proper delivery of all notices.
All electronic documents and communications between the Parties will satisfy any writing requirement under this Agreement.
19.24 Independent Contractor
The Service Provider is an independent contractor and not an employer, employee, partner, joint venture, agent, principal, affiliate, or any other form of representative of the Client, and nothing in this Agreement shall be construed to create such a relationship.
19.25 Subcontractors
Should the Service Provider elect to subcontract any portion of the Services, it will ensure the quality of the subcontracted work as if the Service Provider itself had performed the Services.
19.26 Electronic Signatures
Electronic signatures shall be deemed valid and accepted by either Party, provided that the Parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions or regulations referenced in that Act.
19.27 Counterparts
This Agreement can be signed in multiple counterparts, electronically or otherwise, each of which will be considered an original, and together they will constitute one agreement.

20. INTERPRETATION
This clause shall apply to and govern the interpretation of both this Agreement and any SOW:
(i) (singular and plural) words in the singular includes the plural (and vice versa);
(ii) (currency) a reference to $; or “dollar” is to New Zealand Dollar;
(iii) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has the corresponding meaning;
(iv) (legislation) reference to any legislation includes any statutory modification or
re-enactment of that Act for the time being in force;
(v) (headings) clause headings are included for convenience only and do not affect the interpretation of any provisions, and references to a clause number includes its sub-clauses;
(vi) (includes) the word “includes” and similar words in any form is not a word of limitation;
(vii) (adverse interpretation) no provision of this Agreement will be interpreted adversely to a Party because that Party was responsible for the preparation of this Agreement or that provision.

21. DEFINITIONS
“Advice” means specific recommendations and guidance regarding the Services offered by the Service Provider.
“Agreement” means this Master Services Agreement, as varied, novated, ratified or replaced from time to time.
“Authorised Contacts” means Personnel or representatives of the Client designated as having the authority to provide directions or consent. “Business Day” means any day other than a Saturday, Sunday, or any public holiday recognised in New Zealand. If the day on which any act is to be done under this Agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this Agreement expressly specifies otherwise. “Client” means «Company_Name», also referred to as “you” or “your”, including its employees, contractors, agents, representatives, and any users authorised to access or use the Services
“Confidential Information” means any non-public information disclosed by one Party to the other Party that is designated as confidential or should reasonably be understood to be confidential. This includes, but is not limited to business plans, financial data, customer and supplier lists, customer data, technical specifications, software code, research and development details, internal policies and documents, personal information, legal matters, and related information.
“Data Breach” means any unauthorised access, disclosure, or loss of personal information, whether accidental or intentional, that compromises the security, confidentiality, or integrity of such information, and which may require notification to affected individuals or authorities under applicable privacy laws.
“Day” means a calendar day unless otherwise specified.
“Deliverables” means any materials, products, software, documentation, reports, analyses, and other work products developed or provided by the Service Provider pursuant to this Agreement and any SOW.
“Device” means all devices, peripherals, or computer processing units including mobile devices, that are connected to the Environment.
“Discloser” means the Party disclosing Confidential Information.
“Due Date” means the date by which payment for invoices must be received by the Service Provider.
“Effective Date” means the latest date of the signatures of the Parties on this Agreement.
“End-User License Agreement (EULA)” means a legal contract between the licensor and purchaser, establishing the purchaser’s right to use the software.
“Environment” means the portion of any computer network, system, peripheral, or device that the Service Provider maintains, monitors, or operates for the Client.
“Goods” means any tangible items supplied or sourced by the Service Provider, including but not limited to computer hardware, software, and any related or ancillary items provided in connection with these products.
“Indemnified Party” means the Party seeking indemnification.
“Indemnifying Party” means the Party providing indemnification.
“Intellectual Property” means all intellectual property rights, including but not limited to patents, trademarks, service marks, trade names, copyrights, moral rights, trade secrets, know-how, confidential information, proprietary processes, designs, databases, database rights, inventions, and any other proprietary rights or forms of intellectual property, whether registered or unregistered, and all applications for registration thereof, which may now or in the future subsist.

“Invoice Dispute Notice” means a written notice from the Client specifying the invoice number, the disputed amount, and the reasons for disputing the invoice.

“Party/Parties” means the entities that have entered into this Agreement. A reference to a Party includes that Party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee.

“Personnel” means all employees and contractors, consultants, suppliers, agents and subcontractors of either Party.

“Receiver” means the Party receiving Confidential Information.

“Residuals” means information in non-tangible form retained in the unaided memory of persons who have had access to the Client’s information, including ideas, concepts,

know-how, skills, or techniques.

“Service Provider” means Stratus Blue Limited, also referred to as “we,” “us,” or “our”.

“Services” means all intangible services provided by the Service Provider to the Client, including but not limited to consulting, support, software licenses, and any products sold or resold as part of service delivery.

“Software Agents” means software components installed within the Environment that facilitate monitoring, diagnosing, manipulating, communicating, retrieving information from, and otherwise accessing the Environment.

“SOW” means any Managed Services Agreement, service agreements, statements of work, proposals or quotes between the Parties that describe the technical and procedural details of the Services provided by the Service Provider.

“Termination Fee” means the amount payable by the Client to the Service Provider if the Client terminates this Agreement or any SOW without cause prior to its expiration date, or if the Service Provider terminates this Agreement or any SOW for cause.

“Trust” means a legal arrangement where the Client, as a trustee, holds and manages assets for the benefit of beneficiaries according to the terms of the trust.

“Updates” means any updates and patches for hardware and software produced and distributed by third parties.