Intilecta Apps Rental Agreement

Standard terms

 

Operative Terms

1 What we will do for you

1.1 Your right to use our services

We grant you a personal, non-transferable and non-exclusive right to use our services, by hiring to you (as opposed to selling) our services, so that you can process, capture electronically and achieve data display and print out of your data and your content during the rental period by end users only in the conduct of your activities in accordance with, and in the manner permitted by, our supply terms.

 

1.2 Supply of our services to you

We hire (not sell) to you our materials (by supply to and installation on the host server), and will undertake your data binding and supply our support services on our supply terms.

Each Intilecta App when supplied and used on the host server in accordance with the Intilecta bliki, will conform to the specification of the Intilecta App in the Intilecta bliki at the supply date of the Intilecta App (our apps warranty).

You may ask us to change, enhance or update an Intilecta App or supply further information to meet your requirements for use of an Intilecta App at any time during the rental period and that change, enhancement, update or further information will be supplied at a reasonable additional charge.

We may from time to time appoint our agent to perform any of our obligations, or to exercise any of our rights (including the receipt of monies payable by you), under our supply terms as we may notify you in writing from time to time. If we appoint an agent to receive any monies payable by you under our supply terms you must make those payments to our agent until we give you written notice that you should not do so. Any monies paid to our agent under our supply terms during the appointment of our agent will be a complete discharge of your obligation to make that payment to us. We remain liable to you under our supply terms despite the appointment of an agent.

 

1.3 Your data binding

Your data binding will be undertaken as a consultative process between you and us and may require access to your system and your data during and after office hours (including on Saturday, Sunday and public holidays).

The performance of your data binding will be subject to:

(a) you supplying your data for your data binding in a timely manner on an ongoing basis to meet our requirements for the co-ordinated supply of your data for data binding to achieve data display of that part of your data. If you do not supply your data in accordance with our requirements, any additional services that we supply to restore the co-ordinated supply of your data to achieve data display will be at a reasonable additional charge; and

(b) any restrictions you impose on us in accessing your data on your system for your data binding (which may adversely impact on our ability to achieve data display of that part of your data that is subject to those restrictions).

We warrant that on completion of your data binding your content will on data display correctly and accurately represent your data as supplied for data binding if you use our services in accordance with our supply terms and the Intilecta bliki as it applies to each Intilecta App (our data display warranty).

We will only process and otherwise use your data for the supply of our services to you under our supply terms and will comply at all times with our obligations under the relevant privacy legislation (our use restriction).

 

1.4 Our support services

When you pay the rental payments when due, we will supply our support services to you from the rental start date until the end of the rental period with all due care and skill, and otherwise.

We have no obligation whatsoever, for the maintenance, accuracy or good running of our services, or to supply any maintenance or support services with respect to any third party services or any third party software, beyond the scope of our apps warranty and our data display warranty unless the third party was engaged by us in the supply of our services or as is expressly provided in an additional term (our support services warranty).

You must not permit any person, except our personnel, to undertake work in the nature of our support services in respect of our services.

 

1.5 Intilecta bliki

The Intilecta bliki for each Intilecta App supplied to you from time to time during the rental period will supply the specification relevant to the use of the Intilecta App.

All or any of our requirements as specified in the Intilecta bliki for accessing and use of our services may be changed by us (due to changes to licensed rights, technology or development or the evolution of requirements for the accessing and use of and our services). This may require, at your cost, updating or upgrades of all or any part of your system from time to time to enable you to have continued access to, and the achievement of data display by use of, our services.

We will not change the Intilecta bliki at any time, to supply a lesser specification for an Intilecta App than existed at the supply date of the Intilecta App.

 

1.6 Our warranty to you

We warrant we have all the right and authority to grant the rights granted to you under our supply terms (our rights warranty).

 

1.7 Your warranty to us

You warrant to us that, subject to our compliance with our rights warranty, your data has been lawfully obtained and that by using our services your data can be lawfully supplied and processed to achieve data display.

 

2 Your financial obligations to us

2.1 Rental payments

You must pay to us each rental payment on its due date for payment.

The rental payment:

(a) is calculated by reference to the number of authorised end users specified in Schedule 1.5 (Authorised end users) and the Intilecta Apps agreed to be supplied to you as set out in Schedule 3 (Intilecta Apps) as they may be changed under our supply terms from time to time;

(b) is payable in advance with the first rental payment to be paid on the rental start date and on the same periodic date for each consecutive period specified in Schedule 1.2 (Payment period) for which the rental payment is payable;

(c) may be changed by us from time to time after the initial rental period (or if the initial rental period is greater than 1 year, the rental payment may be changed annually with effect from the relevant anniversary of the rental start date). We will give you not less than 60 days prior written notice of the new rental payment and the new rental payment will take effect from the end of that 60 day notice period if you continue to use any of our services; and

(d) may be increased if the number of authorised end users increases beyond the number specified in Schedule 1.5 (Authorised end users) with our agreement. The increased rental payment will take effect from the date of the number of authorised users increases or, if we agree to supply another Intilecta App not previously agreed to be supplied by us to you, from the supply date of that other Intilecta App.

 

2.2 Our server usage payment

If our server is the host server you must pay to us, in addition to the rental payment, each server usage payment specified in Schedule 2.1 (Server usage payment) on its due date for payment.

The server usage payment is fixed by reference to the parameters of usage of our server set out in Schedule 2.2 (Server usage parameters) as they may be changed from time to time.

If the initial rental period is greater than 1 year, we may increase the server usage payment annually with effect from each anniversary of the rental start date by giving you not less that 14 days prior written notice to you.

If your usage of our server exceeds the server usage parameters, we may change the server usage parameters and change the server usage payment to take into account your additional usage of our server by giving you not less than 14 days prior written notice of the change to the server usage parameters and the changed amount of the server usage payment.

The changes will take effect from the end of that 14 day notice period if you continue to use any of our services.

 

3 Users

3.1 User registration

As actual access to and use of our services is restricted to end users only, you must supply to us accurate, current, and complete registration data for each user before the user accesses or uses any part of our services and maintain the supply of that information to us in a current form.

 

3.2 User compliance

You must:

(a) ensure that access and use of our services by a user does not cause you to be in breach of our supply terms and the access of each user is at all times in compliance with our access &usage rules (our user terms);

(b) monitor and secure compliance by each user with our user terms, and enforce our user terms that are breached or threatened to be breached by a user.

 

4 What you must do

You must:

(a)        use our services in compliance with, and to the extent permitted by, our supply terms and any applicable law or regulatory requirement in the relevant jurisdictions where our services are used by a user;

(b) at your cost, make your system ready for the installation and use of our services to: (i) facilitate the supply and processing of your data; and (ii) integrate your system with our services by using our authorised interface to enable the creation of your content and the achievement of data display, in compliance with our supply terms;

(c) only use an Intilecta App in compliance with information concerning the Intilecta App that is on the Intilecta bliki and otherwise subject to our supply terms;

(d) keep and maintain full and up-to-date security copies of your data before it is supplied for processing by our services;

(e) co-operate with our personnel in the diagnosis of any error or defect in our services (non compliance) including the rectification of any non compliance and, when notifying any non compliance, supply us with as much evidence as possible of the non compliance including, where appropriate, screen dumps and other documented examples of the non compliance;

(f) at all times, until we request its return or destruction, and in accordance with our requirements:

  1. retain all copies of our materials under your effective control, and effect and maintain adequate security measures to ensure that our materials are protected at all times from access, use or misuse, damage or destruction by any unauthorised person (including any user) accessing our services through your system; and
  2.  keep and maintain a full and accurate record of any copying, modification or disclosure of our materials by you as (if at all) is expressly authorised by our supply terms and permit us to inspect those records at any time during your normal business hours and/or produce a copy of all or any part of those records to us on request from time to time; and

(g) keep and maintain, and make available to us on request, accurate records to enable us to verify compliance by you with all your obligations under our supply terms.

 

5 What you must not do

You must not (and you must not assist or permit anyone else to), except as is otherwise expressly agreed by us in writing:

(a) use any of our services on behalf of, or for the benefit of, any third party in any way whatever including, without limitation, using our services in or for the purpose of operation of a bureau or cloud computing service or other computer or data processing service but excluding the use of and access to our services by other users permitted by our supply terms;

(b) remove, obscure, or alter any of our ip notifications;

(c) and except to the extent that applicable laws require us to allow you, when our services are used in accordance with our supply terms:

  1. use or exploit our services in any way (including by trespass or burdening network capacity);
  2. reverse engineer, decompile, disassemble, tamper with or otherwise attempt to extract the source code of any part of our software or any of the security components related to our services (including any supplied intellectual property item) or, in any manner or form or create a modified version of, or a derivative work from, any supplied intellectual property item for any purpose or reason whatsoever (or attempt to do any of those things);
  3. rent, lease, loan, sell, trade, resell, distribute, reproduce, recreate, duplicate, copy or modify our services in any form or by any means for any purpose or create a modified version of, or a derivative work from, our services, in any manner;

(d) use any supplied intellectual property item except in accordance with our supply terms or in a way that is likely or intended to cause confusion about the owner of the supplied intellectual property item;

(e) access or attempt to access, or permit access to, our services by any means other than by end users through our authorised interface;

(f) engage in any activity that interferes with, disrupts or diminishes the quality, security or supply of our services;

(g) assign, sub-licence, grant a security interest in or over, transfer or otherwise dispose of any of your rights to use, all or any part of our services; or

(h) use our services in relation to the conduct of your activities outside of your territory as set out in Schedule 1.7 (Your territory) or to service the requirements of your customers where it relates to the conduct of business by your customer outside your territory or your relationship with your customer outside your territory.

 

6 Your acknowledgements & agreements

You acknowledge and agree that:

(a) you are not granted any right to use any supplied intellectual property item except when using our services in accordance with our supply terms;

(b) our services and the supplied intellectual property items contain proprietary information and material that is owned by, or licensed by our licensors to, us and are protected by applicable intellectual property and other laws;

(c) you are solely liable (and we have no liability to you or any other person) for:

(i) your data, your content or any data display except when and to the extent that our data display warranty is not met due to any unreasonable delay by us in supplying our services or our support services; and

(ii) the consequences of the supply of your data for processing by use of our services (including any liability which we may suffer) including receiving, processing, creating or transmitting your data or your content or us causing any data display by or through the use of our services;

(d) accessing and use of our services requires and involves, at your cost, the use and adequate operation of your system, all or any part of which may affect the speed, efficiency or other supply of our services;

(e) you must, at your cost and at least 14 days before the rental start date and on an ongoing basis during the rental period, ensure that your system has adequate capacity, the correct operating system and current versions of all software interfaces so that your system meets all our requirements for full integration with our authorised interface as specified in the Intilecta bliki to enable you to use our services to achieve data display. If the supply and/or use of our services is not possible by reason of any failure by you to ensure that your system is installed, configured and operational, the rental payment and server usage payment remains payable as from the rental start date;

(f) our supply terms do not affect any valid agreement you have with any of our licensors if our services include the use of our licensors services;

(g) subject to any security and access requirements and limitations you may impose in relation to your system, you will make available to us, at your cost, all communication and computer facilities and systems, information, services and co-operation reasonably required by us so we can install our materials on each display device to achieve data display on the display device. You must allow us to undertake remote access testing and diagnostic work for installation of our materials on each display device and the conduct of our support services (including on-line access, memory dumps, printouts, data preparation, office accommodation, typing and photocopying);

(h) any person as we may nominate (including any of our licensors) is entitled to the benefit of all or any of our rights under our supply terms;

(i) no advice or information, whether oral or written, obtained by you from us or through or from our services will create any warranty not expressly stated in our supply terms;

(j) except for our apps warranty, our data display warranty and our support services warranty we do not represent or warrant to you that:

  1. your use of our services will meet your requirements;
  2. your use of our services will be uninterrupted, timely, secure or free from error;
  3. any information obtained by you as a result of your use of our services will be accurate or reliable; and
  4. defects in the operation or functionality of any software supplied to you as part of our services will be corrected.

If your server is the host server, and in our reasonable opinion it is necessary to remove or otherwise disconnect any part of your system to carry out installation or commissioning of an Intilecta App in conjunction with your system, then you must permit, and obtain all necessary consents for, the removal and/or disconnection and give us all necessary assistance to enable the work to be carried out in an efficient manner.

 

7 What we may do

We may from time to time in our discretion:

(a) store and use registration data for use in maintaining your account with us;

(b) on notice to you but without liability, terminate, change, suspend, remove, or disable access to or use of all or any part of our services by any user if any information (including registration data) you supply for the user is false, inaccurate or incomplete in any material respect or if any user does not comply with our supply terms;

(c) in performing the required technical steps to supply our services to you where our server is the host server, transmit or distribute your data and your content over, by and through various (public) networks, devices, services and media, and/or make such changes as are necessary to conform and adapt your data and/or your content to the technical requirements of those networks, devices, services or media;

(d) on notice to you, impose new or additional terms concerning the security requirements for the use of our services;

(e) on notice to you, control or monitor our access & usage rules by any user for the purpose of compliance and efficiency of the supply of our services, and use technologies to verify compliance by users with our supply terms; and

(f) on notice to you, enforce our access & usage rules.

 

8 Intellectual property

8.1 Ownership of your data & your content

Nothing in our supply terms or otherwise confers on us any right or title to, or interest in, or any intellectual property right in, your data or any of your content.

8.2 Ownership of our services

Our services, and each intellectual property right in any part of our services, are and remain the sole and exclusive property of us or our licensors (as the case may be) and we reserve all those intellectual property rights in and to our services (whether owned by us or our licensors) except as is expressly provided to you for the use of our services under and in accordance with our supply terms.

8.3 Confidential information

(a) No disclosure: Each information recipient must keep the confidential information of the information discloser in strict confidence and must not use or modify the confidential information of the information discloser for its own benefit or the benefit of any other person except to enable our services to be used in the manner contemplated by our supply terms.

(b) Safe custody: Each information recipient must establish and maintain a system for the proper and secure custody of any confidential information of the information discloser within its custody or control.

(c) Re-delivery: If the information discloser so requests at any time, the information recipient must immediately return, or do all things necessary to procure the return, to the information discloser, of all confidential information of the information discloser which is in physical form including all copies.

(d) General exceptions: The obligations under clause 8.3(a) (No disclosure) do not apply to:

  1. general information which is not marked as confidential by the information discloser, that is acquired by the information recipient in compliance with its obligations under our supply terms so as to prevent the information recipient (who is a natural person) from using his/her own skill after the termination of his/her engagement with the information discloser
  2. any disclosure made by an information recipient which is required:
    (A) by law or the rules of any stock exchange on which it or its holding company is listed;
    (B) for the enforcement of any right under our supply terms;
    (C) by the information recipient to inform its financiers or professional advisors for a proper purpose;
    (D) by order of any court, tribunal or other government body acting within the scope of its powers;
    (E) to any person or government body having a right, duty or obligation to know the business of the information recipient (including the information recipients auditors or any taxation or customs authority) and then only in pursuance of the proper execution or performance the right, duty or obligation; or
    (F) as otherwise contemplated by our supply terms.

8.4 Exceptions for personnel: Clause 8.3(a) (No disclosure) does not apply to any disclosure by an information recipient of any part of the confidential information of an information discloser to any personnel of the information recipient who has a reasonable need to know it for the supply of our services in compliance with our supply terms or the maintenance of your system (including the supply of our support services) but only if before its disclosure the information recipient has first notified that person in writing that that:

(a) it is disclosed for that purpose only;

(b)_ the person must be kept it in strict confidence; and

(c) must not use or modify it for its own benefit or the benefit of any other person except to enable our services to be used as contemplated by our supply terms (but not so as to prevent the person, when a natural person, from using his/her own skill after the termination of the persons engagement for that purpose).

 

9 Our intellectual property rights indemnity

9.1 Our ip indemnity

Subject to clause 9.2 (Limitations) and clause 10 (Liability exclusion), we indemnify you against liability in proceedings brought by a third party against you alleging that your use of any of our services constitutes an infringement of a third party property right (our ip indemnity).

9.2 Limitations

Our ip indemnity does not apply:

(a) unless you notify us in writing as soon as practicable of any claim of infringement, or any suspected infringement or alleged infringement that is within our ip indemnity (indemnified claim);

(b) if you fail to comply with your obligations under clause 9.4 (Control of proceedings);

(c) if you have materially prejudiced, or materially prejudice, our defence to the indemnified claim at anytime by any act or omission;

(d) unless you supply us with full co-operation concerning the conduct of the defence of the indemnified claim (at our reasonable cost and expense, except where the indemnified claim arises from a breach by you of our supply terms);

(e) unless you permit us under clause 9.3 (Acquisition of rights or replacement) to modify, alter or substitute any part of our services, at our cost, to avoid any infringement relating to the indemnified claim;

(f) if you do not comply with our direction to cease use or possession of any of our services which, in our sole judgment, are likely to be ruled an infringement of third party property right.

9.3 Acquisition of rights or replacement

(a) If all or any part of our services is held, or in our reasonable opinion are likely to be held, to constitute infringement of a third party property right, we may within a reasonable time, at our option and cost: (i) secure, for your benefit, the right, subject to our supply terms, to continue the use of our services free of infringement of the third party property right, or (ii) replace the infringing part of our services with a substantially equivalent non-infringing item or modify it so that it becomes non-infringing but only if compliance with the specification for the relevant Intilecta App is maintained.

(b) If, in our reasonable opinion, we are unable to obtain the right to continued use of the allegedly infringing part of our services or replace the allegedly infringing item as provided in clause 9.3(a) (Acquisition of rights or replacement) the allegedly infringing item must be returned to us and our maximum aggregate liability to you in relation to the infringement and its return will be to refund to you the amount paid to us for the it commencing with your acceptance of it.

 

9.4 Control Of Proceedings

If you consider an intellectual property right concerning a supplied intellectual property item is being, or is likely to be, infringed (whether by unauthorised use of the whole or any part of our services or otherwise), you must (as soon as reasonably practicable) notify us of the infringement or threatened infringement and we may by written notice to you at any time elect to have sole and complete control of the commencement, conduct, termination or settlement of any proceedings (including the defence of any proceedings) in respect of any infringement, or alleged infringement including any decision as to whether any proceedings should be threatened, commenced, or prosecuted against any such alleged infringement.

 

10 Liability exclusion

10.1 Exclusion of liability

(a) Except for breach of our rights warranty, our apps warranty, our data display warranty, our support services warranty, our ip indemnity, our use restriction or our obligations under clause 8.3 (Confidential information) we have and will have no liability to you in contract, in tort (including negligence), in equity, by operation of statute or otherwise (to the extent liability may be excluded by law) for any kind of liability incurred or suffered by you, or any other person, arising out of or in connection with the supply, of our services or our materials to you or the use or misuse of our services or our materials by any user (including the processing of any of your data or achievement of data display) or compliance, or non-compliance, by a user with any obligation under our supply terms.

(b) Despite any other term in our supply terms, any claim against us arising out of or in any way related to or concerning the supply or use of our services (except a claim for breach of clause 9.1 (our ip indemnity) by us), must be notified to us within 12 months after the occurrence of the event giving rise to the claim and the aggregate amount of our liability to you for all claims is limited to the annualised amount of the rental payment then paid or payable for the rental period at the time the event causing loss or damage occurs.

(c) Despite any other term in our supply terms, any claim by us against you arising out of or in any way related to or concerning the supply and use of our services (except a claim concerning any breach of an intellectual property right) must be notified by us to you within 12 months after the occurrence of the event giving rise to the claim and the aggregate amount of your liability to us for all such claims is limited to the annualised amount of the rental payment then paid or payable for the rental period at the time the event causing loss or damage occurs.

 

10.2 Implied terms

(a) Our supply terms apply instead of all other terms, express or implied, imposing liability on us or conferring rights on you concerning the supply or use of our services (including any implied terms concerning merchantability, non-infringement, interoperability, and fitness for purpose) which are expressly negated except those mandated by legislation for inclusion in our supply terms).

(b) If any legislative enactment:

(i) mandatorily implies or requires inclusion in our supply terms of any term that imposes an obligation on us or confers a right on you; and

(ii) voids or prohibits any term in a contract excluding or modifying, or having the effect of excluding or modifying, the application of, or liability under or the exercise of, any right arising under that term as incorporated in our supply terms, including clause 10.1 (Exclusion of liability), the term will be taken to be included in our supply terms to the extent required to avoid that effect of the legislative enactment only.

 

10.3 No reliance

You acknowledge and warrant to us that (subject to clause 10.2 (Implied terms)) despite any other term in our supply terms (express or implied):

(a) you have not been induced to agree to our supply terms by any prior term, whether oral or in writing, except as expressly set out in our supply terms or the Intilecta bliki;

(b) we do not make or give any representation or warranty as to the fitness for purpose or functional capability of any part of our services, except as set out in our supply terms or the Intilecta bliki;

(c) it is your responsibility to ensure that the specification of each Intilecta App meets your requirements for your activities;

(d) we are not responsible or liable for the discharge, or any act or omission in relation to, or standard of performance of, any third party services; and

(e) you irrevocably and unconditionally waive any right you have or may have to claim any loss or damage for breach of any warranty not contained in our supply terms.

 

10.4 Restrictions

We will have no liability under our apps warranty, our data display warranty or our ip indemnity:

(a) unless you comply with your relevant obligations under our supply terms concerning those warranties;

(b) for, or resulting from, any failure of our services to supply any facility or function for an Intilecta App not specified in the Intilecta bliki or an additional term;

(c) despite any other term (express or implied) in our supply terms (except clause 10.2 (Implied terms)), in relation to the performance, repair or warranty of any third party software, computer hardware or associated peripheral equipment forming part of your system or any third party software, computer hardware, associated peripheral equipment or service supplied to you by a third party, and you must look solely to them for all remedies and support with regard to the goods or services supplied by them to you.

(d) for or resulting from any claim within any of those warranties to the extent that it arises or results (whether or not with our knowledge or consent) from:

(i) any use of, or activities undertaken by a user relating to, any part of our services that is not expressly permitted by our supply terms, not in compliance with Intilecta bliki for an Intilecta App or the additional terms applicable to it;

(ii) any defect in or failure of any third party software or third party integrated software to operate in accordance with its specification;

(iii) any malfunction of any computer hardware or system environment of your system occurring through no fault of ours;

(iv) the storage, operation, use or maintenance of any of our software, third party software or third party integrated software in a manner, or in an environment, inconsistent with the Intilecta bliki concerning any of them;

(v) your failure to use corrections, enhancements or improvements to any of our services made available to you by us;

(vi) use, or combining of any, of all or part of our services by any means and in any form with any equipment, computer programs (except your server and your data programs as approved by us and otherwise in accordance with our supply terms) not supplied or specifically approved in writing by us, and/or any product, service or material not contemplated by our supply terms; or

(vii) any information, materials or specifications supplied by, or on behalf of, you.

 

11 Our entire liability

Despite any other term in our supply terms, you agree our apps warranty, our data display warranty, our ip indemnity, clause 9 (Our ip indemnity) and clause 10 (Liability exclusion) (liability terms) state our entire liability, and your only remedies whether in contract, tort (including negligence) or otherwise, for or in relation to the supply and use of our services by you including in respect of the infringement of a third party property right.

 

12 Ending our relationship

12.1 Termination by you

You may after the end of the initial rental period terminate your use of our services by giving at least 60 days prior written notice to us at any time.

You may, by written notice to us immediately terminate this agreement at any time after the occurrence of any of the following events:

(a) if we have breached any of our supply terms (or have acted in manner which clearly shows that we do not intend to, or are unable to comply with our supply terms) and that breach has (or is likely to have) a material adverse effect on your use of our services as a whole; or

(b) if you are required to do so by law (e.g. if the supply of our services to you is, or becomes, unlawful).

 

12.2 Termination by us

We may, by written notice to you immediately terminate all or any of your rights to use all or any part of our services at any time after the occurrence of any of the following events:

(a) if you have breached any of our supply terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with our supply terms) or any act or omission by any user inconsistent with your obligations under our supply terms occurs;

(b) if you fail to make any payment due to us under our supply terms more than 14 days after written notice from us requiring the payment to be made;

(c) if we are required to do so by law (e.g. if the supply of our services to you or compliance with our obligations under our supply terms is, or becomes, unlawful);

(d) if any wilful and material falsification by you of any report, statement or other written data furnished to us occurs;

(e) if any attempted or purported disposal by you of any of your rights under our supply terms which is in breach of our supply terms occurs;

(f) if our supply terms are void, voidable or otherwise unenforceable by us; or

(g) if you dispose of, deal with, exploit or use our services for any purpose or in any manner except in your activities or as otherwise permitted by our supply terms.

 

12.3 Obligations

If notice is given to you under clause 12.2 (Termination by us), we:

(a) may repossess all copies of our materials in your possession or control;

(b) may retain any undisputed moneys paid by you to us up to the time of termination;

(c) may charge you for goods and/or services supplied by us under our supply terms up to the time of termination which you have not yet been invoiced; and

(d) may pursue any additional or alternative remedy provided by law for any breach of our supply terms by you, or our user terms by any user.

 

12.4 General terms regarding termination

(a) Termination does not abrogate, impair, release, or extinguish any liability or obligations that either party may have to the other party which may have accrued under our supply terms before termination.

(b) Any obligation under our supply terms which by its terms or reasonable implication is to be complied with in whole or in part after termination survives termination.

(c) Upon termination you must promptly return to us our materials (including any copies) of, if requested by us, destroy the same (in the case of the our materials installed on your server and or any authorised display device by erasing those of our materials from the media on which they are stored) and certify in writing to us that those of our materials have been destroyed.

(d) Any notice of termination given by us under clause 12 (Termination) is fully effective even if you have ceased engaging in, or may not at the time of the notice be engaged in, any of the act or omission which gives rise to the notice, or taken steps to counteract the effects of any such act or omission.

 

13 Other Terms

13.1 Additional Terms

If there is any inconsistency between an additional term and any other of our supply terms (including the content of the Intiecta bliki to the extent that it concerns an Intilecta App), then that additional term takes precedence in relation to the application of those terms to the subject matter of those terms to the extent of the inconsistency only.

13.2 Additional Charges

You must pay to us an additional charge calculated in accordance with our scale of charges sent by us to you from time to time for goods and/or services of the relevant type supplied by us that are not within our support services or that we supply as a consequence of the breach of any of your obligations under our supply terms.

 

13.3 Interest

If any payment you are obliged to pay to us, including under any indemnity, is not paid in full by its due date, interest will accrue on the unpaid part of the payment at the interest rate from that due date to the actual date of payment.

 

13.4 Non-solicitation of employees

(a) You must not without our written consent, during the rental period and for one year after the end of the rental period, solicit for engagement as an employee, consultant or otherwise any of our personnel who have had direct involvement with the supply of our services to you.

(b) We must not without your express written consent, during the rental period, and for one year after the end of the rental period, solicit for engagement as an employee, consultant or otherwise any of your personnel who have had direct involvement in relation to the supply of our services to you.

 

13.5 Goods & Services Tax

Unless expressly described as being GST inclusive', any amount or other consideration to be supplied for a supply made, or to be made, by us under or in connection with our supply terms does not take into account GST payable on that supply by us (GST exclusive amount) and must be increased by the relevant amount of GST payable in respect of that supply on the GST exclusive amount. That additional amount must be paid to us without set off, deduction or requirement for demand, when the GST exclusive amount is to be supplied and you indemnify us in relation to the amount that is so payable if not paid to us when the GST exclusive amount is paid to us.

 

13.6 Other legal terms

(a) If any term or part of a term in our supply terms (including any definition or part of a definition in our supply terms in its own right or when applied by an operative term in this or another document) is held to be invalid or unenforceable it will be severed from our supply terms and the remaining terms will apply mutatis mutandis and not in any way be affected or impaired.

(b)        Our supply terms may only be changed or replaced by a document duly executed by you and us.

(c)        A single or partial exercise or waiver of a right relating to our supply terms will not prevent any other exercise of that right or the exercise of any other right. A party will not be liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.

(d)        Subject to any express term in our supply terms to the contrary, the rights of a party under our supply terms are cumulative and are in addition to any other rights of that party. Our supply terms are not to be construed to our disadvantage because we are responsible for their preparation.

(e)        Our supply terms are governed by and are to be construed in accordance with the laws in force in New Zealand. You and us irrevocably and unconditionally submit to the nonexclusive jurisdiction of the courts of New Zealand and any courts which have jurisdiction to hear appeals from any of those courts and waive any right to object to any proceedings being brought in those courts.

(f)         All rights conferred on you in our supply terms are personal to, and intended solely for the benefit of, you and do not extend to and are not enforceable by any third party. You must not dispose of or encumber any right conferred on you under our supply terms without our prior written consent.

(g)        Our supply terms (including any terms implied in our supply terms) do not create any right or cause of action in or on behalf of any person except you and our agent.

(h)        Our supply terms may consist of a number of counterparts and if so the counterparts taken together constitute one and the same instrument.

(i)          Our supply terms and the Intilecta bliki embody the entire understanding and agreement between you and us (including our agent) as to the supply of our services except as specifically agreed by us in a separate written agreement with us. All previous negotiations, understandings, representations, warranties, memoranda or commitments in relation to, or in any way affecting, the subject matter of our supply terms (including those involving or made by our agent) are merged in and superseded by our supply terms and are of no force or effect whatever and no party, including our agent is liable to any other party in respect of those matters. No oral explanation or information supplied by any party to another or by our agent to a party affects the meaning or interpretation of our supply terms, or constitutes any collateral agreement, warranty or understanding between any of the parties.

 

14 Interpretation

14.1 Definitions

 

In our supply terms:

access means access to our services by use of our authorised interface only for the purpose of the conduct of your activities only.

additional charge means an additional amount payable by you to us calculated on a T&M Basis and (if applicable) includes all reasonable costs, charges and losses incurred by us attributable to the relevant event giving rise to the obligation to pay the additional charge.

additional term means a term set out in Schedule 8 (Additional terms) (if any).

authorised display device means each device (except the host server) that is used by an end user to achieve data display.

commissioning means the supply, installation and testing of the Intilecta App on, and the integration of the Intilecta App with, your system up to the time of the operation of the Intilecta App in a live environment in the actual operation of any part of your activities.

confidential information means, in relation to an information discloser, all information of the information discloser (including software and documentation, reports, financial or other data, records, forms, tools, products, methodologies, present and future research, technical knowledge, marketing plans, trade secrets, and other materials of the information discloser) whether tangible or intangible and whether or not recorded, stored or compiled physically, electronically, graphically, in writing, or by any means now known or later invented and includes without limitation records and information of information discloser that possess the requisite degree of confidentiality that entitles the information to protection at law or in equity due to its confidential nature and includes:

(a) information that is expressly marked as confidential;

(b) information whose confidential nature has otherwise been made known by the information discloser (itself or by a person on its behalf) to the information recipient before or after its disclosure to the information recipient; or

(c) information that, due to its character and nature, a reasonable person in like circumstances would treat as confidential; or

(d) information which before or after its disclosure by its information discloser (itself or by a person on its behalf) notifies the information recipient that the information is of that type, ,

but despite the foregoing, does not include information which is developed by the information recipient independently of reliance on or use of confidential information of the information discloser or is or becomes publicly known through no wrongful act or failure of the information recipient or the personnel of the information recipient or:

(i) is already known to the information recipient at the time of its disclosure to it by the information discloser;

;

(ii) became or becomes known by the information recipient from a person who is not under, and did or does not thereby, breach any confidentiality obligation,

where that knowledge is not directly or indirectly facilitated by a breach any confidentiality obligation by any person.

claim means any claim, demand, remedy, suit, injury, action, or right of action, proceeding, brought or made against the person for any liability whether in contract, statute, tort (including, without limitation, negligence) or otherwise, whether or not presently ascertained immediate future or contingent howsoever arising.

customer means a person to whom you, in the conduct of your business, supply access to our services, by customer personnel of the person being able to access and use our services as an end user for the purpose of viewing your data and your content by the use by the customer personnel of the Intilecta Apps (as determined by you from time to time) but only for the purpose of supplying your content by data display to the customer and not the resupply of your data for use by the customer.

customer personnel means the customer if the customer is a natural person or a person engaged (as an employee or in any other capacity, either alone or with any other person or thing, who are competent to use an authorised display device) by the customer to supply goods and/or services to the customer in the conduct of the customers business who is authorised by the customer to view your content by data display.

data display means the visual display and presentation of your data and/or your content by the use of our services in accordance with our supply terms.

data display warranty has the meaning set out in clause 1.3 (Your data binding).

display device means your server and each authorised display device.

end user means a natural person who is a member of your personnel or customer personnel who is authorised to access and use our services and for that purpose must use a user password and a user name as a unique identifier to access and use our services.

host server means your computer server or our computer server on which the Intilecta Apps are to be installed for use by you in your activities under our supply terms.

initial rental period means the period specified in Schedule 1.3 (Initial rental period) from the rental start date.

information discloser means us in relation to our confidential information and you in relation to your confidential information.

information recipient means you in relation to our confidential information and us in relation to your confidential information.

intellectual property item means any trade mark, service mark, trade name, graphics, logo, other distinctive brand features, domain names or user interface.

intellectual property right means, in relation to any property or thing, any copyright and each other intellectual property right of whatever nature in, to or derived from the property or thing (whether or not registered or registrable, and wherever in the world the right may exist).

interest rate means the interest rate per annum specified in Schedule 1.6 (Interest rate) calculated day to day and compounding quarterly.

Intilecta Apps means as at the signing date the applications specified or referred to in Schedule 3 (Intilecta Apps) and each other Intilecta app that we agree to supply to you for the achievement of data display as it may be altered or modified (immediately or successively) after initial supply by us to you.

Intilecta bliki means in relation to an Intilecta App the bliki created and maintained by us in relation to the Intilecta App supplying information concerning the features, functionality, capacity and other specifications relevant to the use of the Intilecta App which may be accessed by users subject to our access & usage rules.

liability means any legal, equitable, contractual, statutory or other obligation, commitment, duty, undertaking or liability, direct or indirect, including (without limitation) any debt account, expense (including legal costs and disbursements), judgment, damages or loss (including indirect, special or consequential), or any cost, charge, fine, penalty, taxes, or other liability of whatever nature incurred or suffered.

month means calendar month.

our access & usage rules means technical and operational rules that we impose and notify to you in the Intilecta bliki concerning access to and usage of our services by users (which we may change from time to time) including matters concerning the security framework for the use of our services, technology for protection of digital information and protecting and limiting access and usage of our services, your data and your content including at the signing date those set out in Schedule 6 (Our access & usage rules).

our agent means, in relation to an obligation or right of ours under our supply terms, such person as we may by written notice to you from time to time nominate as being authorised by us to exercise that obligation or right.

our apps warranty has the meaning set out in clause 1.2 (Supply of our services to you).

our authorised interface means communications and software interface that is supplied by us to you for accessing our services by end users currently authorised by you to access and use our services subject to authentication by us of the unique identity of the end user on each occasion of access and during use of our services.

our ip indemnity has the meaning set out in clause 8.1 (Our ip indemnity).

our ip notification means any notification (electronic or otherwise) of the subsistence of any intellectual property right or ownership of any of our materials by us or our assignee which may be affixed to, or contained within, our services including the Intilecta Apps.

our licensors means any person who has licensed us to supply to you any good or service which is incorporated in our services whether or not that supply is apparent to you from the use of our services.

our licensors services means, in relation to one of our licensors, the good and/or services our licensor (including the intellectual property items and computer programs of our licensors and all intellectual property rights of our licensors in or to any of them) incorporated in our services whether or not that supply is apparent to you from the use of our services.

our materials means each of the Intilecta Apps and our software, our intellectual property items, our authorised interface our website and any other item that we supply to you (in a physical, electronic, digital or other form and whether in the same form as when first supplied to you or capable of being recreated into that or other form by any method, device or process) in which an intellectual property right exists and includes our intellectual property rights in each of them and the intellectual property rights of our licensors in our licensors services.

our personnel means our employees, our agents and contractors of ours from time to time, and includes the employees of our agents and those contractors.

our platform software means the systems and applications computer programs used by us for the supply of, and incorporated in, our services from time to time.

our services means the services (including our support services and our materials) to be supplied by us to you under our supply terms.

our software means a computer program comprised in our platform software, an Intilecta App or otherwise supplied by us to you as part of our services.

our supply terms means the terms for the supply of our services set out in this document, including any additional terms, as they may be changed in accordance with the terms of this document.

our server means our computer server or a computer server under our control.

our support services means our services specified in Schedule 4 (Our support services) subject to our supply terms.

registration data means in relation to

(a) you, the information specified or referred to in Schedule 5.1 (Your registration date),

(b) a customer, the information specified or referred to in Schedule 5.2 (Customer registration data); and

(b) an end user, the information specified or referred to in Schedule 5.3 (End registration data);

rental end date means the date on which the use of our services is terminated in accordance with our supply terms.

rental payment means the payment for our services specified or determined in accordance with Schedule 1.1 (Payments amount) as it may be changed under our supply terms from time to time.

rental period means, for each period specified in Schedule 1.2 (Payment period), the period between the rental start date and the rental end date or until you cease to duly make the rental payments or we are otherwise entitled to terminate your rights to use our services.

rental start date means the date specified in Schedule 1.4 (Rental start date).

server usage payment means the payment for the use of our server or the host server specified or determined in accordance with Schedule 2.1 (Server usage payments) as it may be changed under our supply terms from time to time.

server usage parameters means the parameters for usage of our server set out in Schedule 2.2 (Server usage parameters) as they may be changed under our supply terms from time to time.

signing date means the date of our supply terms.

specification means for an Intilecta App, the specification of the features, functionality, capacity and other operational characteristics relevant to the use of the Intilecta App as specified on the Intilecta bliki from time to time.

supplied intellectual property item means our software, third party integrated software or an intellectual property item or intellectual property right of ours or of any of our licensors that is supplied to you as part of our services.

supply includes the automatic download of a piece of software to any part of your system including your server (if it is the host server) and authorised display devices.

supply date means in relation to an Intilecta App the date that it is supplied by us to you.

T&M Basis means billing on a time and materials basis at our standard scale of charges notified by us to you from time to time for the tasks and activities of the relevant type for any services supplied or to be supplied by us.

third party integrated software means a computer program that is supplied with and integrated into our services.

third party property right means an intellectual property right of a person (including our licensors but not you or us) in or to any part of our services.

third party services means goods and services supplied by a person other than us (whether as a subcontractor to us or not).

third party software means a computer program that is supplied with, but is not integrated into, our services.

user means you, a customer of yours and each end user.

user password means, in relation to an user, the confidential password and user name from time to time of the user.

your activities means the processing of your data by you, or a third party contractor, for use by you in your own right in data display to end users but only in the conduct of your business but not in or for the purpose of operation as a bureau or cloud computing service or other computer or data processing service, but includes the other activities specified in Schedule 7 (Your other activities), all in compliance with our supply terms.

your content means your data and any representation or compilation of any of your data (in diagrammatic or other form) that is produced, created, reformulated or results from the use of our services but excluding our materials.

your cost means on the basis that you must bear and duly pay the relevant cost, charge, expense, outgoing, payment or other expenditure (cost) or, if the relevant cost is in fact paid or incurred by us, reimburse us for that cost on a full indemnity basis on demand by us as a liquidated debt.

your data means your own data, and that of a customer, when lawfully collected and processed by you or a third party contractor for use by you in your own right in data display to end users but only in the conduct of your activities.

your data binding means the binding of your data to the Intilecta Apps supplied by us to you for use in your activities only.

your personnel means your employees, your agents and contractors of yours from time to time and includes the employees of you agents and those contractors.

your server means your computer server or a computer server under your control.

your system means your server, the authorised devices and associated equipment and facilities to be supplied and maintained by you at your cost for the purpose of accessing and using our services from the supply of your data to the achievement of data display including the use in your system of compatible hardware, software and other computer and communication related devices and services (such as internet access with high speed internet access being strongly recommended), which are not supplied by us as part of our services.

your territory means the geographic area specified or referred to in Schedule 1.7 (Your territory).

 

14.2 Construction

Unless expressed to the contrary, in our supply terms headings do not affect the interpretation of our supply terms and:

(a) words importing the singular include the plural and vice versa any gender includes the other genders;

(b) if a word or phrase is defined cognate words and phrases have corresponding definitions;

(c) a reference to: (i) a person includes a firm, unincorporated association, corporation and a government or statutory body or authority and its legal personal representatives, successors and assigns; (ii) a statute, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them; (iii) a right includes a benefit, remedy, discretion, authority, power or cause of action; (iv) a term of our supply terms or another document, agreement, understanding or arrangement includes a reference to both express and implied provisions and terms (statutory and otherwise) and a statutory or regulatory provision having mandatory application to the supply of our services; (v) an obligation includes a warranty or representation and a reference to a failure to observe or perform an obligation includes a breach of warranty or representation; (vii) time is to local time in Auckland; (viii) $ or dollars is a reference to the lawful currency of New Zealand; (ix) our supply terms or any other document includes it as changed or replaced by agreement between the parties to it and notwithstanding any change in the identity of those parties; (x) writing includes any mode of representing or reproducing words in tangible and permanently visible form, and includes facsimile transmission; (xi) any thing (including, without limitation, any amount) is a reference to the whole or any part of it and a reference to a group of things or persons is a reference to any one or more of them; (xii) a term includes a representation, condition or warranty; and (xiii) indemnify includes an obligation keep indemnified as to the relevant matter.

 

Schedules

Schedule 4

What this includes

Error Correction

(a) If you discover that an Intilecta App fails to conform in its operation with any part of its specification then you must notify us in writing of the defect or error in question and if reasonably practicable supply us with a documented example of the defect or error.

(b) We must then procure the prompt investigation the reported defect or error and use reasonable efforts to procure the prompt correction of that defect or error.

(c) If in our reasonable opinion we are not able to rectify the defect or error in an Intilecta App, we must, immediately upon such correction being completed, deliver to you the corrected version of the Intilecta App.

(d) We must procure the supply to you of all assistance reasonably required by you to enable you to implement the use of the corrected version of the Intilecta App compliant to its specification.

(e) You may test any such corrected Intilecta App and if you do so, you must inform us of any issues or defects within the corrected Intilecta App after discovery, whereupon clauses (a) to (e) of Schedule 4 (Our support services) will again apply to the corrected Intilecta App.

(f) If in our reasonable opinion, we are not for any reason able to rectify the defect or error, we must promptly notify you and if the failure substantially hinders or prevents you from using a material part of the functionality of the Intilecta App, you may terminate your right to use the Intilecta App by giving written notice to us.

(g) You must pay an additional charge for the tasks and activities of the relevant type for any services supplied by us: at your request but which do not qualify under the error correction service described above by virtue of any of the exclusions referred to under the heading below What this does not include or at your request but which we find are not necessary.

For the avoidance of doubt nothing in this paragraph imposes any obligation on us to supply services in respect of any defect, error or circumstance arising due to any of the exclusions referred to under the heading below What this does not include.

 

Advice

We will supply you between the hours of 0830 to 1800 (NZ Time), Monday to Friday (excluding public holidays) with such technical advice by any of the telecommunications (including but not limited to electronic mail) telephone calls facsimile transmission postal mail or visits by our personnel as is reasonably necessary to resolve your difficulties and queries in using an Intilecta App.

For the avoidance of doubt, we are not obliged to supply such technical advice in respect of any difficulties or queries which arise by reason of any of the matters described under the heading below What this does not include.

 

What this does not include

The error correction service described above does not include the supply of services in respect of:

(a) defects or errors resulting from any modifications of an Intilecta App made by any person not authorised by us without our prior written consent;

(b) any version of our platform software except the current release of our platform software supplied to you by us;

(c) operator error or use of the Intilecta App except in accordance with the Intilecta bliki;

(d) any defect or error in your system or in any computer programs used in conjunction with our services and not supplied by us;

(e) defects or errors caused by the use of our services on or with equipment (other than your system) or computer programs not supplied by or approved in writing by us provided that for this purpose any computer program designated for use with our services in the specification will for that purpose be taken to have the written approval us;

(f) act of God, fire, flood, war, act of violence or any other similar occurrence;

(g) any change of an Intilecta App if the change is made by us at your request and results in a departure from the specification from the antecedent Intilecta App and we notify you that there may be an issue with the functionality of the changed Intilecta App.

 

Termination

Subject to earlier termination as provided in clause 12 in our supply terms, we may terminate our obligation to supply our support services in relation our services by giving to you not less than 12 months prior written notice of termination at any time.

 

Schedule 6

Our access & usage rules

Each user must be allocated a user password for accessing and using our services

We may for security reasons nominate content or structural requirements for user passwords.

You must in relation to each user, notify us of:

(a)      the identity of the end user; and

(b)      the user password allocated to the user from time to time.

You are solely responsible for maintaining:

(a)      records for all activities that occur under all user passwords; and

(b)      the confidentiality and security of all user passwords.

You must notify us immediately of any unauthorised use of any user password or any other breach of security concerning our services of which you become aware.

We will not have any, liability to you or any third party resulting from:

(a) any failure by a user to keep the user password secure and confidential or use of any user password that is not authorised by you and in compliance with our supply terms; or

(b) your failure to supply us with accurate and current registration data.