Subscription Agreement

About w3p

w3p is a subscription based web-2-print platform accessed on-line by you (subject to the agreement below).

Subscription Agreement

THIS AGREEMENT GOVERNS YOUR USE OF THE PLATFORM. IN CONSIDERATION OF US MAKING THE PLATFORM AVAILABLE TO YOU, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ALL ADDENDUMS TO IT AND REVISIONS THEREOF. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU AND THAT YOU HAVE HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO BE BOUND BY IT. YOU FURTHER AGREE THAT THIS AGREEMENT AND ALL ADDENDUMS TO IT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN US AND SUPERSEDES ANY PROPOSAL OR PREVIOUS AGREEMENT, ORAL OR WRITTEN AND ANY OTHER COMMUNICATION BETWEEN US RELATING TO YOU ACCESSING OR USING THE PLATFORM. FOR THE AVOIDANCE OF ANY DOUBT HOWEVER, THIS CLAUSE DOES NOT SEEK TO EXCLUDE OR LIMIT OUR LIABILITY FOR FRAUDULENT MISREPRESENTATION.

Background

This subscription agreement is between Nettl Australia Limited (NZ Company Number 6845335) (“Licensor”, “Nettl Australia Limited”, “us” or “we”) and the subscriber (“Licensee” or “you”) detailed in the quotation sent to you (the “Quotation”). It sets out the terms and conditions of Licensee’s subscription to the Platform which, pursuant to the Quotation, the Licensee acknowledges that it has read and understood before entering into a binding agreement with the Licensor. At our sole discretion we may modify the Agreement at any time and such changes will be effective ten (10) Working Days after a notice of change to this Agreement is posted on our website www.nettl.com.au.  If the Agreement is modified we will upload an amended Agreement to our website (or any replacement website, together the “Site”). At any particular time, the version of the Agreement that will govern your relationship with us and our rights and obligations with respect to the Platform will be that version of the Agreement appearing on the Site at the time you last accessed the Platform.

1 Operative provisions

In this Agreement the following expressions shall have the following meanings:
“Addendum”
Any document that on the face of it is expressed by the Licensor to be an addendum to this Agreement and which the Licensee (by virtue of the elements of the Platform that we have, at your request, made available to you) is subject to;
“Agreement”
means this Subscription Agreement and all Addendums to it;
“Authorised User”
Any individual who is employed or engaged under contract as part of the Licensee’s staff and in respect of whom the Licensor has set up a User Account;
“Client Templates”
Editable web-to-print templates prepared by the Licensee and hosted on the Platform and used by Customers in connection with Jobs;
“Customer”
Any person to whom the Licensee supplies products and/or services;
“Customer Information”
The Customer’s name, address, contact details and order details;
“End User Licence Agreement”
The Licensor’s (or its Affiliate’s) written terms and conditions which govern the use of Orderlink Microsites and w3shops by Customers;
“GST” means goods and services tax in terms of the Goods and Services Tax Act 1985, at the rate prevailing from time to time;

“Group”
Any company at any time during the term of this Agreement within the Licensor’s group of companies and includes any related company” (as defined in section 2(3) of the Companies Act 1993 and other affiliates of the Licensor;
“Initial Subscription Fee”
The sum set out in the Quotation under the heading Initial Subscription Fee;
“Job”
Each Customer order pertaining to the Licensee’s Workgroup Account identified by a Unique Job Number;
“Licensee Confidential Information”
Any information about the Licensee and its business divulged by the Licensee and/or received or obtained by the Licensor prior to or during the period of this Agreement which is either marked or expressed by you as confidential or which may be reasonably considered to be confidential;
“Licensee Content”
All data, graphics and information including Customer Information that the Licensee submits in connection with its use of the Platform or the Subscription;
“Licensee Products”
Those products and services particulars of which are uploaded to the Platform by the Licensee to be supplied by the Licensee to its Customers via the Platform;
“Licensor Confidential Information”
Any information about the Group, and/or any aspect of the Platform and/or any aspect of the Group’s business or business methods divulged by the Licensor and/or received or obtained by the Licensee prior to or during the period of this Agreement which is either marked or expressed by us as confidential or which may be reasonably considered to be confidential;
“Monthly Subscription Fee”
The sum set out in the Quotation under the heading Monthly Subscription Fee;
“OrderLink Microsite”
Each order management account within the Platform made available under password to the Licensee’s Customers;
“Platform”
Such of the Licensor’s (or its affiliate’s) proprietary software (whether owned by or licenced to the Licensor) (including but not limited to Flyerlink and OrderLink Microsite and w3shop modules) hosted by or on behalf of the Licensor and parts of which are accessible using internet web browser-based technology;
“Principal Location”
The address given in the Quotation for the First Principal Location and where applicable any additional locations set out in the Quotation under the heading Special Terms and Conditions;
“SLA”
The Service Level Agreement set out in Schedule 2;
“Subscription”
The subscription plan relevant to this Agreement as set out in the Quotation;
“Subscription Plans”
The various packages offered by the Licensor which determine the degree of access to the Platform, level of support and ancillary services that are available to the licensee, the Licensee acknowledging that differing, and not all, elements and functionality of the Platform are made available pursuant to various different Subscription Plans offered by the Licensor;
“System Fee”
The sum set out in the Quotation under the heading System Fee;
“Trade Name”
any trade names and logos symbols, emblems, insignia or indicia, belonging to or used by the Licensor or any member of the Group (whether through ownership or under licence) whether or not registered or capable of registration;
“Unique Job Number”
The unique identification number generated by the Platform in respect of each Job;
“User Account”
The password and username supplied to Authorised Users to access the Workgroup Account;
“User Guide”
The written specification of the methods, processes, techniques, systems and schemes devised and compiled by the Licensor to be observed and implemented by the Licensee in using the Platform at any time hereafter made available to the Licensee;
“w3shop”
any publicly accessible website (which is determined by the Platform as being a separate w3shop in its own right) made available to the Licensee by the Licensor pursuant to an Addendum to this Agreement.
“Workgroup Account”
the order management account within the Platform made available to the Licensee’s Authorised Users;
“Working Day”
any day, except a Saturday, Sunday, public holiday or bank holiday in Wellington, New Zealand.
1.1 The headings used in this Agreement are included for convenience only and are not to be used in construing or interpreting this Agreement.
1.2 Any reference in this Agreement to any statute, decree, law, statutory instrument or other regulation having the force of law shall be deemed to include any lawful modifications thereto or re-enactments thereof after the date of signature of this Agreement.
1.3 Any reference to the plural shall include the singular and any reference to the singular shall include the plural and any reference to one gender shall include all genders.
1.4 Any reference to a person shall include natural persons, partnerships and other such unincorporated bodies, corporate bodies and all other legal persons of whatever kind or however constituted.
1.5 Any reference to a clause or schedule shall (unless otherwise specifically provided) be a reference to a clause or schedule of this Agreement.
1.6 Any obligation of a party not to do an act or thing shall be deemed to include an obligation not to permit such act or thing to be done by another person under the control of the party that is subject to the obligation in question.
1.7 The words include, includes, including and included would be construed without limitation.

2 Appointment, Commencement and Term

2.1 The Licensor hereby grants to the Licensee during the continuance of this Agreement and upon the terms and conditions herein contained the non exclusive, non sub licensable, non transferable right and licence to use (limited to the number of Authorised Users and predominantly from, and in respect of the material business activities of the Licensee operated from, the Principal Locations) those functions and features of the Platform as the Licensor considers are universally available to all other licensees that have taken the same Subscription;
2.2 This Agreement shall commence on the date of the Agreement and shall continue (subject to earlier termination as provided in this Agreement) in force for the period set out in the Quotation under the heading Initial Term and thereafter unless and until terminated by either party giving to the other party not less than three months prior notice expiring on or at any time after the Initial Term.

3 Fees and Payment

3.1 The Licensee agrees to pay the Initial Subscription Fee (plus GST, if any) to the Licensor within 7 days of the Quotation or, if different, on the payment date(s) set out in the Quotation;
3.2 In respect of each calendar month (save for the first calendar month) during which for any part of that calendar month this Agreement is in force, the Licensee agrees and undertakes to pay to the Licensor the Monthly Subscription Fee (plus GST, if any), which the Licensor shall invoice monthly in advance;
3.3 The Licensee agrees and undertakes to pay to the Licensor a System Fee (plus GST, if any) in respect of each Job for Licensee Products which the Licensor shall invoice weekly in arrears;
3.4 Unless otherwise stated, all sums payable by the Licensee to the Licensor under or in connection with this Agreement shall be paid as set out in the Quotation under the heading Payment Terms to the Licensor’s bank account by the method set out in the Quotation under the heading Payment Method or such other method as the Licensor may reasonably require. Further all such sums shall be deemed exclusive of GST or other applicable sales tax which, if applicable, shall be payable by the Licensee in addition;
3.5 The Licensor reserves the right to allocate funds received from the Licensee against invoices pursuant to this Agreement or any other Addendum to this Agreement or any other agreement between the Licensee or any member of the Group, as the Licensor determines;
3.6 In addition to any other remedy the Licensor may have under this Agreement or at law, and not withstanding any other provision of this Agreement over which this clause shall take precedence, if at any time any sum which is due to be paid by the Licensee to the Licensor (pursuant to this Agreement or any other Addendum to this Agreement or any other agreement between the Licensee or any member of the Group) has not been paid on the due date for payment, or where any credit limit granted by the Licensor to the Licensee (which for the avoidance of doubt shall be set by the Licensor at its absolute discretion and which it shall be entitled to vary at any time having regard to the Licensee’s credit worthiness or other information at the Licensor’s disposal) has been exceeded the Licensor or any member of the Group shall have the right to:
3.6.1 deactivate or suspend all or any part of the Licensee’s User Accounts relating to any systems or services made available to the Licensee pursuant to this Agreement or any other Agreement between the Licensee and the Licensor or any member of the Group;
3.6.2 charge interest from day to day at an annual rate of 11% from the due date until the date payment is received by the Licensor in cleared funds;
3.6.3 notwithstanding any other provision of this Agreement, over which this clause shall take precedence, offer to supply goods and services directly to Customers (including after termination of the Agreement) without incurring any liability whatsoever to the Licensee.

4 Obligations of the Licensor

The Licensor agrees and undertakes as follows:
4.1 to use its commercially reasonable endeavours to provide the support services set out in Schedule 1;

4.2 to use its commercially reasonable endeavours to meet the service levels set out in Schedule 2. In the event that, in breach of the foregoing, such service levels are not achieved then, in respect of the calendar month in which the failure to achieve the service levels occurred, there shall be a reduction in the Monthly Subscription Fee payment according to the table set out in Schedule 2. The Licensee acknowledges and agrees that, notwithstanding any other provision of this agreement (including the provisions of clause 10.3) and notwithstanding any right or remedy that the Licensee may have under this Agreement or at law, the reduction in Monthly Subscription Fee, as set out in this clause, shall be the only remedy available to the Licensee in respect of any breaches of this clause by the Licensor and accordingly the Licensee shall not be entitled to any other compensation, damages or similar in respect of a failure to achieve the service levels.

5 Obligations of the Licensee

The Licensee agrees:
5.1 that, save as set out in any Addendum to this Agreement, the Licensee is not granted any right or licence to use, in any way whether in writing or orally, any Trade Name and accordingly the Licensee is strictly prohibited from using and/or referring to any Trade Name in its dealings with its Customers or otherwise in connection with its business;
5.2 to comply with all reasonable technical advice and instructions given by the Licensor with regard to the use of the Platform and to use the Platform strictly in accordance with the User Guide and such advice, know how and guidance made available to it by the Licensor. The Licensee acknowledges and agrees that the Licensor shall have no liability to the Licensee in respect of any matter complained of by the Licensee where the matter in question would have been avoided if the Licensee had adhered to the User Guide or advice, know how and guidance made available to it by the Licensor;
5.3 to comply with all laws, statutes, by-laws, regulations and requirements of any government or other competent authority relating to the Licensee and/or the use of the Platform (including the Privacy Act 1993) and any other data protection legislation that concerns the collection and/or provision of personal data including the Customer Information that will be stored in the Licensor’s and/or Group’s database and passed on to and used by the Licensor and/or Group for such purposes as is necessary for the Licensor to fulfil its obligations and exercise its rights pursuant to this Agreement);
5.4 not to, or purport to, sell, assign, transfer, convey, charge or sublicense its rights under this Agreement, nor anything made available to it by the Licensor pursuant to this Agreement, including but not limited to providing, leasing, lending, subcontracting or using for timesharing or service bureau purposes any such rights.

6 Platform, OrderLink Microsites, w3shops and Licensee Content

6.1 The Licensee acknowledges and agrees that the Licensor may in its absolute discretion, at any time and without notice, make any additions, amendments, modifications and/or changes to any aspect of the Platform as it sees fit and the Licensee shall have no right whatsoever to use and/or require the Licensor to allow it to use and/or supply the Platform that was in operation prior to the addition, amendment, modification and /or change in question;
6.2 To the extent that the Licensee’s use of the Platform enhances and/or improves Customer experience and/or use and/or enjoyment of and/or interaction with any aspect of the Platform and in respect of any idea or invention that the Licensee makes in respect of the Platform the Licensee grants an irrevocable, payment and royalty free licence without limit in time (together with an unrestricted right to sub-license) to the Licensor and/or the Group to replicate such use and exploit such idea or invention;
6.3 The Licensee acknowledges and agrees that all OrderLink Microsites and w3shops are made available by the Licensor to Customers subject to the End User Licence Agreement which the Licensor shall be entitled to make accessible from such OrderLink Microsites, w3shops or in any other manner to the Customer;
6.4 The Licensee acknowledges and agrees that the number of active OrderLink Microsites that are available to it is limited to the aggregate number set out in the Quotation (the Licensor may make additional OrderLink Microsites available at the rates it offers from time to time);
6.5 Upon the termination or expiration of this Agreement for any reason, the Licensor shall cease to make all Orderlink Microsites or w3shops available to the Customers and shall deactivate the Customers access rights, usernames or passwords and shall not exploit for financial gain any Licensee Content, Customer Information or Client Templates created by the Licensee and associated with such Customers. Notwithstanding the foregoing whilst the Licensee shall retain its copyright in any design created by it for any Client Template nothing in this Agreement shall give the Licensee any other rights in any Client Templates;
6.6 The Licensee retains all right, title and interest in and to the Licensee Content and during the continuance of this Agreement grants to the Licensor a non-exclusive, non-transferable, worldwide, fully-paid license to use, copy, and modify the Licensee Content solely to the extent necessary and for the sole purposes of complying with its obligations and exercising its rights under this Agreement.

7 Workgroup Account, User Accounts and Authorised Users

7.1 The Licensee acknowledges and agrees that it is responsible for ensuring its Authorised Users keep all User Accounts confidential and do not allow unauthorised persons to access User Accounts. Furthermore the Licensee acknowledges and agrees that it shall be liable for all activities that occur under all User Accounts and/or in connection with the Licensee’s Workgroup Account and in this regard, shall indemnify and keep the Licensor and any member of the Group, its directors, officers, employees indemnified against all claims, demands, actions, costs, expenses (including, but not limited, to legal costs and disbursements), losses, damages and any other liability whatsoever arising from or suffered or incurred by reason of any use or alleged use of the User Accounts or Workgroup Account by any person whether or not unauthorised by the Licensee. Furthermore the Licensee agrees to immediately notify the Licensor of any unauthorised use of any User Accounts or Workgroup Account. The Licensee accepts and agrees that the Licensor shall not be liable for any loss or damage arising from the Licensee’s failure to adhere to the forgoing.

8 Termination

8.1 The Licensor may terminate this Agreement forthwith by giving notice in writing to the Licensee on the happening of any of the following events:
8.1.1 the Licensee commits an irremediable material breach of its obligations under this Agreement;
8.1.2 the Licensee commits a remediable breach (other than a failure to pay money which is addressed in clause 8.1.3 below) which breach is not remedied to the satisfaction of the Licensor within 30 days of the date of service of a written notice outlining the breach and requiring its remedy;
8.1.3 if the Licensee shall at any time fail to pay any amounts due and payable to the Licensor hereunder within 7 days of the Licensor’s written notice demanding payment of such sum;
8.2 The Licensor may terminate this Agreement forthwith by notice to the Licensee (which notice may be given by any means, including orally over the telephone, that the Licensor considers the most expedient) in any of the following events: the Licensee is unable to pay its debts when they are due, or suffers any event or takes any action which could reasonably be considered to indicate that the Licensee is insolvent or at risk of becoming so in the relatively near future including insolvent liquidation, a declaration of bankruptcy, the presentation of a bankruptcy or winding up petition which is not withdrawn, dismissed or discharged within 30 days of its presentation or the appointment of an administrator, receiver or similar over any of the licensee’s assets or undertaking;
8.3 Without prejudice to any other right or remedy available to the Licensor and / or any member of the Group (whether pursuant to this Agreement (including the right to terminate this Agreement), at law, or otherwise), in circumstances where the Licensor has the right to terminate this Agreement pursuant to clause 8.1 and / or 8.2, the Licensor or any member of the Group may deactivate or suspend all or any part of the Licensee’s User Accounts relating to any systems or services made available to the Licensee pursuant to this Agreement or any other agreement between the Licensee and the Licensor or any member of the Group;
8.4 The Licensee may terminate this Agreement:
(i) forthwith by giving notice in writing to the Licensor in the event that the Licensor commits a material breach which breach is not remedied within 30 days of the date of service of a written notice outlining the breach and requiring its remedy;
(ii) at any time after the Initial Term (as set out in the Quotation) upon giving the Licensor three months’ notice in writing;
(iii) if the Licensor varies the terms and conditions of this Agreement and the Licensee considers, acting reasonably, that such change is adverse, to a significant degree, to the interests of the Licensee, by giving 15 Working Days’ notice to the Licensor in writing.

9 Consequences of termination

9.1 Upon the termination or expiration of this Agreement for any reason, the Licensee shall:
9.1.1 immediately pay to the Licensor the full amount of all monies then or thereafter due together with any interest thereon up until the date of payment;
9.1.2 return to the Licensor or otherwise dispose of or destroy as the Licensor shall direct any Licensor Confidential Information or other property of the Licensor;
9.2 The expiration or termination of this Agreement shall be without prejudice to the accrued rights of the parties and any provision of this Agreement which expressly or by implication relates to or governs the acts of the parties subsequent to such expiry or termination shall remain in full force and effect and shall be enforceable notwithstanding such expiry or termination.

10 Warranties and Liability

10.1 Each party warrants that it has the right to enter into this Agreement;
10.2 The Licensor shall not in any event be liable for any indirect, special or consequential loss, any loss of profits, any loss of bargain, any loss of opportunity or loss or corruption of data in connection with or arising howsoever out of or in connection with this Agreement and/or the Licensor’s negligence;
10.3 Without prejudice to the above provision of this clause 10 the Licensor’s entire liability in respect of any claim under or arising out of this Agreement (“a Claim”) shall be limited to the greater of, $20,000 less any amounts paid by the Licensor to and/or on behalf of the Licensee in respect of any other Claim and the amount that the Licensor can successfully recover in respect of the Claim in question under any policy of insurance it has in place;
10.4 Except in respect of liability for death or personal injury no action, regardless of form, arising out of the transaction under this Agreement may be brought by the Licensee more than two years after the cause of action has accrued;
10.5 Subject always to clause 10.6 the Licensee agrees to notify the Licensor in writing of any breach by the Licensor of any of the terms covenants or conditions of this Agreement as soon as having become aware of such breach of the Licensor;
10.6 Neither party excludes or limits any liability (including liability for death or personal injury arising from a Party’s negligence and liability for fraudulent misrepresentation) that cannot, under the laws of New Zealand, be excluded or limited.

11 Confidentiality

11.1 The Licensee shall maintain secret and confidential the terms of this Agreement and all Licensor Confidential Information. The Licensee shall respect the Licensor’s proprietary rights in the Licensor Confidential Information and the Licensee shall use it exclusively for the purpose of this Agreement;
11.2 The Licensee shall procure that all members of its staff who have access to any Licensor Confidential Information shall, before being given access (whether as a result of the Licensee’s direct disclosure or otherwise) to such Licensor Confidential Information are made aware of and made subject to these obligations;
11.3 The Licensor shall only use and/or disclose the Licensee Confidential Information for the purposes of performing its obligations or exercising its rights under this Agreement or for the purposes of allowing another member of the Group to perform all or any part of the Licensor’s obligations or exercising its rights under this Agreement;
11.4 The obligations imposed by this clause 11 shall survive the variation, renewal, expiry or termination of this Agreement.

12 Acknowledgments by the Licensee

12.1 The Licensee hereby acknowledges the exclusive rights of the Licensor in respect of the Platform (whether by virtue of ownership or under a grant of licence) and all matters comprised therein and itself to utilise the same and to grant to any other person a licence to use the Platform and to amend and modify the same by variation, addition, renewal, substitution or howsoever otherwise. The Licensor retains all right, title and interest in and to the Platform and related intellectual property and nothing in this Agreement conveys any ownership interest to the Licensee;
12.2 The Licensee acknowledges and agrees that certain Customer facing tools and functionality within the Platform are configured on the understanding that the Licensee is registered for GST and that the Licensor shall have no obligation to modify the Platform to function differently in the event that the Licensee is not registered for GST;
12.3 The Licensor shall make all reasonable efforts to keep the Platform secure. Notwithstanding this the Licensee acknowledges and agrees that the internet is not a fully secure medium and due to the nature of the internet it is possible that viruses, worms, trojan horses or other similar harmful or deleterious programming routines (”Bugs”) may be inadvertently communicated by or downloaded from the Platform and that the Licensor shall not be responsible or liable for any Bugs that may infect or otherwise impact the Licensee’s use of its computer equipment or other property by virtue of its access to, use of, or browsing of the Platform or downloading of any content from the Platform, the Licensor recommends that the Licensee installs appropriate anti-virus or other protective software;
12.4 The Licensee acknowledges and agrees that the Licensor provides the Platform as-is and with all faults. Accordingly, the Licensee agrees that, to the full extent permitted by law, all other warranties and representations, whether oral or in writing and whether implied by statute, common law or otherwise relating to the Platform (including but not limited to performance, security, non infringement of third party rights, integration, merchantability, satisfactory quality or fitness for a particular purpose) and which the Licensee would otherwise have the benefit of are hereby excluded;
12.5 The Licensee acknowledges and agrees that the Licensor makes the Platform available through the internet to the extent commercially reasonable, and subject to outages, communication and data flow failures, interruptions and delays inherent in internet communications. The Licensee acknowledges and agrees that the Licensor does not warrant that access to the Platform will be uninterrupted or error free and acknowledges that problems with the internet, including equipment, software and network failures, impairments or congestion, or the configuration of the Licensee’s computer systems, may prevent, interrupt or delay the Licensee’s access to Platform and that the Licensor is not liable for any delays, interruptions, suspensions or unavailability of the Platform attributable to problems with the internet or the configuration of the Licensee’s computer systems. The Licensee acknowledges that access to the Platform requires the use of services supplied by the Licensor’s (or its Affiliate’s) internet service providers and is made available subject to the relevant third party’s acceptable use policies which the Licensee agrees to be bound by and to adhere to. Notwithstanding anything to the contrary in this Agreement, access to any mobile friendly version of Platform accessed by mobile devices may be terminated or suspended at any time;
12.6 The Licensee acknowledges and agrees that the Platform may include products, services, software and content supplied by, and hypertext links to websites owned, operated, controlled and/or provided by, third parties (“Third Party Content”). The Licensee’s use of any Third Party Content may be subject to the relevant third party’s terms and conditions and the Licensee agrees to be bound by any such terms and conditions made aware to it by the Licensor. The Licensee further acknowledges and agrees that the Licensor gives no promises about the quality, security, accuracy or any other aspect of any Third Party Content, and excludes any and all liability arising from the Licensee’s use of it and that the presence of a third party’s advertising or other content on the Platform does not in any way give rise to, or otherwise imply, a recommendation, endorsement or other representation on the Licensor’s part in respect of the third party’s comments, products or services;
12.7 The Licensee acknowledges that the Platform contains Third Party Content which may cease to be available to the Licensor (including for example but not limited to Adobe Inc’s InDesign Server software) and agrees that the licensor shall be entitled, without incurring any liability whatsoever to the Licensee, to withdraw the availability of any part of the Platform that relies on such Third Party Content;
12.8 The Licensee acknowledges and agrees that it is the Licensee’s responsibility to obtain and maintain at its cost all necessary hardware and software required to access and use the Platform and that the Licensor shall have no obligation to the Licensee in this respect;
12.9 The Licensee acknowledges and agrees that it is a condition of this Agreement that the Licensee nor any officer, director or employee of the Licensee shall knowingly or having ought reasonably to have known give to the Licensor any false or misleading information or makes any misrepresentation howsoever in connection with this Agreement;
12.10 For the avoidance of any doubt the Licensee acknowledges and agrees that, save as expressly agreed with the Licensor in writing, no rights in the Licensor’s intellectual property (being any copyright, design, patent, trademark, trade name or other so called intellectual property right whatsoever (whether registered or unregistered and whether existing now or at any time in the future)), nor in the intellectual property relating to the Platform or any other intellectual property arising under an Addendum (being any copyright, design, patent, trademark, trade name or other so called intellectual property right whatsoever (whether registered or unregistered and whether existing now or at any time in the future)) is granted to the Licensee. Furthermore the Licensee acknowledges and agrees that such intellectual property, the goodwill and all other rights in and associated with the Platform (including any rights in and/or to any innovations and/or additions to the Platform made by the Licensee and which the Licensor has elected to incorporate into the Platform) and any other property whether arising under this Agreement or an Addendum (including any intellectual property rights  and know-how of the Licensor and/or any member of the Group) vest absolutely with the Licensor (or, if applicable, the head licensor who has granted a licence to such property to the Licensor) and that it is the intention of the parties that all such rights and property will at all times and for all purposes remain vested with the Licensor (or, if applicable, such head licensor) and in the event that any such rights or property at any time accrue to the Licensee by operation of law or otherwise the Licensee will at the Licensor’s request immediately on demand do all such acts and things and execute all such documents as the Licensor shall deem necessary to vest such rights and/or property absolutely with the Licensor (or, if applicable, such head licensor);
12.11 The Licensee acknowledges and agrees that it shall not (and may not allow any third party to):
12.11.1 decompile, mirror, translate, disassemble or otherwise reverse engineer any part of the Platform, source code, algorithms, or underlying ideas of the Platform; or
12.11.2 provide, lease, lend, subcontract, sublicense, re-publish or use for timesharing, service bureau or hosting purposes any or all of the Platform; or
12.11.3 reproduce, modify, copy, distribute, publish, display or create derivative works of any or all of the Platform;
12.11.4 alter, remove, or obscure any copyright, trademark or other proprietary notices or confidentiality legends on or in the Platform.

13 No partnership or agency

13.1 The Licensee shall not pledge the credit of the Licensor nor represent itself as being the Licensor nor an agent, partner, employee or representative of the Licensor and shall not hold itself out as such nor as having any power or authority to incur any obligation of any nature express or implied on behalf of the Licensor and nothing in this Agreement shall operate so to constitute the Licensee an agent, partner, employee or representative of the Licensor.

14 Indemnity by Licensee

14.1 The Licensee hereby agrees and undertakes fully and effectively to indemnify and keep indemnified the Licensor and any member of the Group as well after as before the expiry or termination of this Agreement for and against all damages, loss, claims, demands, expenses (including legal and professional expenses), costs and any liabilities whatsoever which the Licensor and/or any member of the Group may at any time incur as a result of any breach by the Licensee of any provisions of this Agreement and/or the Licensee’s use of the Platform and/or graphic files, data or any other information supplied by the Licensee to the Licensor and/or the Licensee’s negligence.

14.2 The indemnity in clause 14.1 does not extend to any indirect, special or consequential loss, any loss of profits, any loss of bargain or any loss of opportunity arising howsoever out of or in connection with this Agreement.

15 General

15.1 The Licensor may assign, transfer, sub-contract or otherwise deal with any of its rights, benefits or obligations under this Agreement and this Agreement shall inure to the benefit of the successors and assigns of the Licensor and in this regard the Licensee shall do all such acts and things and execute all such documents as the Licensor shall reasonably require.  The Licensee may not assign or transfer its rights, benefits or obligations under this Agreement without the prior written consent of the Licensor and, to avoid doubt, a change in the ownership or control of the Licensee is an assignment under this clause;
15.2 All rights and licences not specifically and expressly granted to and conferred upon the Licensee by this Agreement are for all purposes reserved to the Licensor;
15.3 Each of the restrictions and provisions contained in this Agreement and in each clause and sub clause hereof shall be construed as independent of every other such restriction and provision to the effect that if any provision of this Agreement or the application of any provision to any person, firm or company or to any circumstances shall be determined to be invalid and unenforceable then save as provided in clause 15.4 below such determination shall not affect any other provision of the Agreement or the application of such provision to any person, firm, company or circumstance all of which other provisions shall remain in full force and effect;
15.4 In the event that any provision of this Agreement shall be held to be invalid or unenforceable by a court of law or other competent authority in a way which, in the sole opinion of the Licensor, materially adversely affects the right of the Licensor to receive payment or other remuneration or the terms on which the Licensor supplies goods or services to the Licensee then and in any such case the Licensor may without liability terminate this Agreement by notice in writing to the Licensee to that effect and in such circumstances the provisions of clause 9 above will apply;
15.5 Neither party shall not be liable for any non performance of any of its obligations under this agreement to the extent that such non performance arises from circumstances beyond the reasonable control of that party;
15.6 No failure of the Licensor to exercise any power given to it hereunder or to insist upon strict compliance by the Licensee or any Guarantor with any obligation or condition hereof and no custom or practice of the parties at variance with the terms hereof shall constitute a waiver of any of the Licensor’s rights hereunder;
15.7 No waiver by the Licensor of any particular default by the Licensee shall affect or impair the Licensor’s rights in respect of any subsequent default of any kind by the Licensee, nor shall any delay or omission of the Licensor to exercise any rights arising from any default affect or impair the Licensor’s rights in respect of the said default or any other default of the Licensee hereunder. Subsequent acceptance by the Licensor of any payments by the Licensee shall not be deemed a waiver of any preceding breach by the Licensee of any of the terms covenants or conditions of this Agreement. Any full or partial exercise of any remedy available to the Licensor under this Agreement shall be without prejudice to any other right or remedy available under this Agreement, at law or otherwise, to the Licensor all of which such remedies shall remain fully exercisable;
15.8 Unless otherwise specifically provided no notice given under this Agreement shall be effective unless it is in writing, addressed to the recipient at its address contained in this Agreement (or such other address as shall have been notified from time to time to the sender). A notice shall be deemed to have been properly given if delivered by hand during normal business hours, upon delivery or if sent by recorded delivery post, on the third Working Day after posting;
15.9 This Agreement (which for the avoidance of all doubt includes any Addendums to it) constitutes the entire agreement between the parties and supersedes all prior agreements in connection with the subject matter hereof. No director, employee or agent of the Licensor is authorised to make any representation or warranty not contained in this Agreement and the Licensee acknowledges that he has not relied on any such oral or written representations;
15.10 This Agreement and all rights and obligations of the parties hereto shall be governed and construed in accordance with the law of the New Zealand and the parties hereto hereby submit to the exclusive jurisdiction of the Courts of New Zealand.

Schedule 1

Training & Support

Training and Support is provided according to the table below;

Schedule 2

Service Level Agreement

The Licensor agrees to meet the following service levels;

• Availability of the Platform shall exceed 98%, excluding planned downtime for maintenance events. The Licensor will use all reasonable endeavours not to have planned downtime between the hours of 9am – 5pm (local time for the Licensee) on any given Working Day (“the Key Hours”), in the event that planned downtime is required during such hours, the Licensor will give as much notice as possible of such planned down time (by email, message board post, newsfeed or other such method as the Licensor shall reasonably decide). Planned downtime which is outside of the Key Hours shall not exceed 8 hours;
• The Platform uses industry-standard system security, including without limitation firewall and intrusion detection, and 128 bit encryption via HTTPS/SSL protocols;
• The Platform uses industry-standard antivirus software and procedures;
• The Licensor performs weekly full and daily incremental backups of the Platform;

Platform Availability