TERMS AND CONDITIONS OF SERVICE 1. AGREEMENT 1.1 The following Terms of Service (the "Agreement") covers the provision of Services by the Supplier to the Customer either: (a) pursuant to an Order Form (where an Order Form has been executed) the terms of which are incorporated into this Agreement; or (b) where the Customer accesses or uses the Services otherwise than pursuant to an Order Form, and which constitute a binding legal agreement between 11 Ants Analytics Group Limited, an incorporated New Zealand limited liability company with its registered office at 185 Fanshawe Street, Auckland Central, Auckland 1010 New Zealand (“Supplier”) and the Customer (as defined below). 1.2 This Agreement governs the terms and conditions of the Customer’s use of and subscription to the Services (as defined below) provided by the Supplier and by entering into this Agreement the Customer agrees to comply with the terms and conditions of this Agreement. 2. DEFINITIONS AND INTERPRETATION 2.1 Definitions In this Agreement the following terms have the following meanings: Additional Services has the meaning given to it in the Order Form; Applications means the data analytics and reporting applications supplied by the Supplier for access and subscription by the Customer for use as part of the Services, including any optional Modules, custom or standard enhancements developed by the Supplier, updates and upgrades, including associated offline components and excluding any Third Party Offerings; Business Day means a day on which registered banks are open for ordinary over the counter business in Auckland, New Zealand excluding Saturdays, Sundays and statutory public holidays in Auckland, New Zealand; Business Hours means 9:00am to 5:00pm on a Business Day; Commencement Date means: (a) the date set out in the Order Form (where an Order Form has been executed); or (b) in all other cases, the first date and time that the Customer accesses or uses the Services; Confidential Information means: (c) Customer Data and pricing information of the Customer; (d) the Data, Fees and other pricing information of the Supplier; (e) the source code and object code relating to the Applications; (f) the technology, ideas, know-how, documentation, processes, algorithms and trade secrets embodied in the Applications; (g) any software keys relating to the Applications; and (h) any other information in written or electronic media that is inherently confidential due to its nature or is identified as “confidential,” “proprietary” or with a similar legend at the time of such disclosure; Customer means: (a) the Customer listed in the applicable Order Form (if executed) for itself and on behalf of its Related Companies; and (b) In all other cases, the person accessing or using the Services; Customer Data means all Data submitted or uploaded by the Customer to the Services excluding any Data resulting from the computation or processing by the Applications of that Data; Data means any: (a) data or information which relates directly or indirectly to an individual from which the identity of the individual can be directly or indirectly ascertained and which is held by or is under the control of either party; and (b) data, information, record, list, configuration and work (in whatever form and on any medium) that relates to or interacts with the Applications; Customer Support Terms has the meaning given to it in the Order Form (where executed); Disclosing Party means a party disclosing Confidential Information to the other party under this Agreement; Documentation means any online user instructions and help files which may be made available by the Supplier as part of the user interface for the Services, as updated from time to time by the Supplier; Fees means the applicable fees payable by the Customer to the Supplier for the Services or the Support Services as set out in the Order Form (where executed) and payable in accordance with the terms of this Agreement; GST means goods and services tax payable under the Goods and Services Tax Act 1985 (New Zealand); Initial Implementation Services has the meaning given to it in the Order Form (where executed and applicable); Initial Training Services has the meaning given to it in the Order Form (where executed and applicable); Intellectual Property Rights means any intellectual or industrial property (whether registered or not) including, patents, patent applications, copyright, designs, trademarks, service marks, trade secrets, computer code (including source, library, object, and executable code), inventions and logical sequences; Major Release means a release for which the version number has a different most significant digit than the previous release of that Application; Minimum Term means, in the case of Services provided under an Order Form, the minimum term that the Customer will subscribe for the Services and the Support Services as set out in the Order Form; Module means the functionality available in one subset of the solution, commonly referred to and labelled as a ‘module’ in any Application; Order Form means the document requesting or ordering the Services from the Supplier that are executed from time to time; Quarterly means a period of three calendar months (all dates inclusive); Receiving Party means the party receiving Confidential Information of the Disclosing Party under this Agreement; Related Companies has the meaning given to it in section 2(3) of the Companies Act 1993 (New Zealand); Services means the online web-based Applications provided by the Supplier via the URL https://platform.11antsanalytics.com to the Customer and any other designated URLs which are either: (a) described in the Documentation that are ordered by Customer under an applicable Order Form; or (b) access or used by the Customer otherwise than under an Order Form; Support Services means the: (a) Initial Implementation Services (b) Initial Training Services; and (c) Additional Services; provided by the Supplier to the Customer in connection with the Services; Supplier has the meaning given to it in clause 1.1; Third Party Offerings means services performed by and offerings provided by third parties independently of the Supplier and which are related to the performance of the Services, including but not limited to any online Web-based CRM, ERP or other business application subscription services, and any associated offline products provided by third parties and that interoperate with the Services including the Microsoft Azure cloud platform; Unauthorised Conduct has the meaning set out in clause 5.2; User means individuals who are authorised by the Customer to access and use the Applications, and who have been supplied user identifications and passwords for the purpose of accessing the Services limited to the Customer’s employees, consultants, contractors and agents; Vendor means the companies who supply the Customer with goods or services for resale, whom the Customer may wish to provide access to the Vendor Portal in conjunction with Supplier; Vendor Portal means an offering to Customer’s Vendors to enable them access to certain aspects of the Customer’s data on a chargeable basis; and Version means modification or fixes to an Application that correct errors, support new releases of operating systems, support new input/output devices, or provide other incidental or minor enhancements, performance improvements and corrections and not including any Major Release. 2.2 Interpretation Unless the context otherwise requires: (a) a reference to a clause is a reference to a clause of this Agreement; (b) a reference to a Schedule or an Annexure is a reference to a schedule or an annexure to this Agreement; (c) a reference to parties means the Customer and the Supplier; (d) the singular includes the plural and vice versa; (e) whenever the words includes or including are used in this Agreement, they are deemed to be followed by the words “without limitation”; (f) a reference to any legislation, policy or standard includes a modification of that legislation, policy or standard or, in the case of legislation, legislation enacted in substitution for that legislation and a regulation, order-in-council and other instrument from time to time issued or made under that legislation; (g) headings to clauses in this Agreement and the table of contents are included for the purpose of ease of reference only and are not to have any effect on construction and interpretation; (h) a reference to a day, other than a Business Day, is a reference to any calendar day of the year; and (i) a reference to currency is a reference to New Zealand currency, unless expressly provided otherwise. 2.3 Precedence If there is any conflict or inconsistency between the documents which comprise this Agreement the order of precedence is (from highest to lowest): (a) the Order Form; and (b) the terms of this Agreement. 3. SERVICES 3.1 Description of Services (a) Where an Order Form is executed, the Supplier will supply the Customer those Services and Support Services specified in the applicable Order Form in accordance with the terms of this Agreement. (b) The Customer’s use of the Services and the Support Services includes the right to use all functionality available for the specific Applications included with the Services as at the Commencement Date. (c) Subsequent Versions of the Applications made generally-available to all customers will be made available to the Customer at no additional fee. (d) As set out in the Order Form (where applicable), the availability of new Applications, Major Versions or Modules may require the payment of additional fees by the Customer. The Supplier will determine, in its sole discretion, whether access to any other such Applications, Major Versions or Modules will require the payment of additional fees. (e) The Supplier may, at its option, make the new Applications, Major Versions or Modules available to the Customer for a period of time for evaluation purposes only without payment of any additional Fee. 3.2 Terms of Use of Services (a) For Services provided under an Order Form, the Supplier will: (i) provide the Customer during normal New Zealand Business Hours with basic email support (available at support@11antsanalytics.com) for the Services and the Support Services ordered by the Customer as per the Customer Support Terms outlined in the Order Form; (ii) use commercially reasonable efforts to make the ordered Services available to the Customer 24 hours a day, 7 days a week, with minimal downtime, except for: A. planned downtime (of which the Supplier will endeavour to provide at least 48 hours’ notice in advance of the maintenance time); or B. unavailability caused by circumstances beyond the reasonable control of the Supplier including but not limited to the unavailability or modification by third parties of any Third Party Offerings; (iii) maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data uploaded to the Applications or Services (on the same terms and conditions as the Supplier uses to protect its Data); and (iv) provide the Services and the Support Services in accordance with all applicable laws, government regulations and industry guidelines. (b) The terms of clause 3.2(a) will not apply to Services provided otherwise than under an Order Form. 3.3 Providing Applications The Supplier will host the relevant Applications (except for off-line components or applications) and may update the functionality and the user interface of the Services from time to time in its sole discretion for the purpose of improving the delivery of the Services. 4. RIGHTS OF PARTIES 4.1 Supplier Licence (a) Subject to the terms and conditions of this Agreement, the Customer grants the Supplier a limited, non-exclusive, royalty-free and worldwide licence to use the Customer Data and perform all acts with respect to the Customer Data to the extent necessary for the Supplier to provide the Services under this Agreement. (b) The Supplier agrees to access and use the Customer Data solely for the Customer’s benefit, unless otherwise provided in this Agreement. (c) The Customer is solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data provided or uploaded to the Services. 4.2 Customer Use Subject to the terms and conditions of this Agreement, the Supplier grants the Customer a limited, non-exclusive, revocable and worldwide right to use the Services and Applications for the term in accordance with the terms of this Agreement. 5. CUSTOMER’S RESPONSIBILITIES 5.1 The Customer is responsible for: (a) ensuring its Users comply with the terms of this Agreement and for its Users use of the Services and the Applications; and (b) ensuring that Users maintain the confidentiality of their passwords and user names. 5.2 The Customer will not engage in the following conduct (collectively “Unauthorised Conduct”): (a) license, sublicense, sell, resell, rent, lease, transfer, assign, export, distribute, time share or otherwise commercially exploit or make the Services, Applications or Data resulting from the performance of the Services available to any third party, other than to its Users or as otherwise provided by this Agreement; (b) use the Services to collect, transmit or process: (i) infringing, obscene, threatening, defamatory, or otherwise unlawful or tortuous material, including material that is harmful to children or violates third party privacy rights; or (ii) data elements that may disclose or lead to the specific identification of any individual; (c) send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to or which may damage, detrimentally interfere with, intercept or expropriate any systems, data, personal information or property of another; (d) interfere with or disrupt the integrity or performance of the Services or the Applications; (e) attempt to gain unauthorized access to the Services or its related systems or networks (including any Third Party Offerings); (f) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services; (g) access the Services or download an Application for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorised access of the Applications; (h) perform or publish any results of any benchmark testing relating to the Services to any third party without first obtaining the written consent of the Supplier; or (i) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, merge or decompile the Applications or Services or any part thereof or otherwise attempt to discover any source code or modify the Applications or Services. 5.3 User Accounts The Customer will: (a) be responsible for ensuring the security and confidentiality of all password or accounts. (b) notify the Supplier immediately of any unauthorised use of any password or account or any other known or suspected breach of security impacting the Services; and (c) report to the Supplier immediately and use reasonable efforts to stop immediately any copying or distribution of Customer Data that is known or suspected by Customer or its User as being unlawful or unauthorised. 5.4 Use Limitation If the Customer’s use of the Applications and the Services exceed more than 8,928 minutes in any calendar month (representing twenty percent (20%) of the available minutes in that month), then the Supplier may review the Fees charged for the Services and reserves the right to charge additional Fees for the excess minutes used by the Customer. 5.5 Temporary Suspension (a) The Supplier monitors all use of the Services for security and operational purposes and may temporarily suspend the Customer’s or its Users’ access to the Services or any Application if either the Customer or any of its Users’ is engaged in, or the Supplier suspects in good faith is engaged in any: (i) Unauthorised Conduct; (ii) breach of the terms of this Agreement; (iii) breach of any applicable law; or (iv) breach of any third party right, including the terms of any Third Party Offering on which Customer’s use of the Services relies. (b) Suspension may take effect for the Customer’s entire account including any User sub-accounts. The Supplier will not be liable to the Customer, to any User or any other third party if the Supplier suspends any Service or Application in accordance with this clause 5.5. 5.6 Third-Party Websites and Services (a) The Customer must at all times comply with the terms of service governing any third party website or any Third Party Offerings. (b) The Customer understands and agrees that the availability of the Applications, or certain features and functions of the Applications, are dependent on the corresponding availability of Third Party Offerings or specific features and functions of Third Party Offerings. The Supplier will not be liable to the Customer or any third party if any Third Party Offerings change and those changes result in Applications being unavailable. (c) The Supplier does not provide any warranty or make any representation in respect of any third party software or any Third Party Offerings. (d) To the extent that the Supplier requires the Customer to grant the Supplier authorisations, passwords or other user credentials to a Third Party Offering ("Access Codes") to retrieve Customer Data or interoperate with the Service, the Customer will promptly provide those Access Codes. The Supplier will not share, reassign, divulge or disclose any Access Codes except to the extent necessary to provide the Services or comply with any applicable law or regulation. 6. FEES AND PAYMENT TERMS 6.1 Payment (a) The provisions of this clause 6 will apply where the Services are provided pursuant to an Order Form. (b) The Customer must pay the applicable Fees for the Services Quarterly in advance effective from the first day of the month following the Commencement Date. This is with the exception of the first Quarterly payment which will include an additional payment for the partial period between the Commencement Date and the first day of the following month. (c) The Customer must pay the Fees for the Support Services provided by the Supplier monthly in arrears. 6.2 Invoicing (a) The Supplier will invoice the Customer for the Fees for the Services on the last day of the month preceding the quarter being billed and for the Support Services on the last day of the month for the Fees of that subject month. Any invoice rendered will be delivered, mailed or emailed by the Supplier to the Customer. (b) The invoice will be a valid tax invoice for GST purposes. Any invoice for Services and the Support Services submitted by the Supplier must show the total Fee for the Services and the Support Services for the quarterly period to which the invoice relates and specify the basis on which the amount payable has been calculated. 6.3 Payments (a) Each invoice received by the Customer which complies with clause 6.2, will be payable by the Customer on or before the 20th of the month following that invoice’s date. (b) All payments due are payable by the Customer in New Zealand dollars unless otherwise provided by the Order Form or invoice. 6.4 Non-Payment Late payments may bear interest at the rate of 1.5% percent per month from the payment due date until paid in full. The Customer will be responsible for all reasonable expenses (including solicitors’ fees on a solicitor and client basis) incurred by the Supplier in collecting any late amounts due by the Customer, except where the delay is due to the Supplier’s billing inaccuracies. 6.5 Suspension for Non-Payment (a) Automatic Suspension If the Customer does not pay the Supplier the Fees in accordance with clause 6.3, the Supplier may automatically suspend the Customer’s use of the Services and the Support Services. The duration of this suspension will be until the Customer pays the Supplier all outstanding Fees including any applicable interest and other reasonable expenses in accordance with clause 6.4 above. (b) During Suspension The Supplier will continue to charge the Customer the quarterly Fees during the Customer’s suspension for non-payment and the Customer must pay all outstanding Fees in order to resume its use of the Services. 6.6 Taxes The Customer will pay all taxes, duties, fees and other governmental charges of any kind (including GST and other similar indirect taxes, sales, services and use taxes, but excluding taxes based on the Supplier’s net income and any other withholding tax imposed under Part R of the Income Tax Act 2007 (Income Tax Act)) that are imposed on the Services or the Support Services in addition to the invoiced Fees, which will not be considered a part of, a deduction from or an offset against the invoiced Fees. 7. PROPRIETARY RIGHTS 7.1 Reservation of Rights (a) Subject to the rights granted to the Customer and any User under this Agreement, the Supplier reserves all its rights, title and interest in and to the Applications and the Services, including all associated Intellectual Property Rights. (b) No rights are granted to the Customer under this Agreement other than as expressly provided and the Customer will not dispute any ownership of the Intellectual Property Rights of the Supplier. (c) Neither the Customer nor any Users will delete or in any manner alter the copyright, trademark, and other proprietary notices of the Supplier, if any, appearing on any Application or Documentation. 7.2 Improvements The Customer acknowledges and agrees that any improvements, suggestions, enhancements, recommendations or other feedback the Customer or its Users provided to the Supplier regarding the Applications or Services will be the sole and exclusive property of the Supplier and all such recommendations are free from any confidentiality obligations that might apply to the Supplier pursuant to clause 8. Any Application or Services incorporating those improvements, suggestions, enhancements, recommendations or other feedback will be the sole and exclusive property of the Supplier. 7.3 Customer Data (a) Ownership As between the Supplier and the Customer, the Customer exclusively owns all right, title and interest in and to all Customer Data and the Customer Data will constitute Confidential Information of the Customer under this Agreement. (b) Representation The Customer warrants that: (i) it has, and will continue to have, during the Term, the legal right and authority to access, use and disclose the Customer Data to the Supplier; and (ii) the Supplier’s use of the Customer Data solely for the provision of the Services will not violate any applicable New Zealand laws or cause a breach of any agreement or obligation between the Customer and any third party. (c) Indemnity The Customer indemnifies the Supplier in respect of any claims, liabilities, losses, causes of action, damages, settlements, costs and expenses (including legal fees and costs on a solicitor and client basis) arising from claims that the Supplier is not entitled to access or use Customer Data for the purpose of providing the Services and the Support Services. (d) Responsibility for Preparation of Input Data The Customer will ensure that the Customer Data is prepared to the format required by Supplier. If Supplier is required to perform data transformation work in respect of the Customer Data, the Supplier may charge the Customer charges additional to the Fees. (e) Responsibility for Backup of Input Data The Customer will ensure that all Customer Data is backed up in the equivalent format to as required by the Application, to enable rapid restoration of the Application in the case of any failure of the Application or Services. This responsibility lies solely with the Customer. 7.4 Statistical Information Despite anything else in the Agreement, the Supplier may monitor the Customer’s use of the Services and use data related to Customer’s use of the Services or the results of the Services in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services. The Customer agrees that the Supplier may make such information publicly available, provided that such information does not incorporate any Customer Data or identify any Customer individually. The Supplier retains all rights, title and interest in and to such information, including all associated Intellectual Property Rights. 8. CONFIDENTIALITY 8.1 Obligations Subject to the written consent of the Disclosing Party, the Receiving Party must not use or disclose any Confidential Information of the Disclosing Party for any purpose other than as permitted under this Agreement. 8.2 Permitted Disclosure The obligations of confidence will not apply to Confidential Information that: (a) is or becomes publicly available without the Receiving Party breaching any obligation owed to the Disclosing Party; (b) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (c) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; (d) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information; or (e) the Receiving Party is required to disclose under any applicable law, rule or regulation provided that the Receiving Party provides the Disclosing Party with prior written notice of the requirement to disclose that information, in which case the Disclosing Party provide reasonable assistance to oppose or limit that disclosure. 8.3 Injunctive Relief The parties agree that any unauthorised disclosure of Confidential Information will cause immediate and irreparable injury to the Disclosing Party and that, in the event of a breach, the Receiving Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without the necessity of showing actual damages. 9. TERM AND TERMINATION 9.1 Term (a) For Services performed under an Order Form: (i) This Agreement will commence on the Commencement Date and will continue for the Minimum Term unless terminated in accordance with the provisions of this Agreement (“Initial Term”). (ii) Subject to clause 9.1(a), this Agreement will automatically renew and continues in effect until terminated by either party in accordance with clause 9.2. (b) For all other Services provided otherwise than under an Order Form, this Agreement will be effective from the Commencement Date and will be effective until terminated in accordance with clause 9.2. 9.2 Termination (a) For Services performed under an Order Form: (i) Subject to clause 9.1(a) (Minimum Term requirements) this Agreement may be terminated at any time after the Minimum Term has been fulfilled by either party giving ninety (90) Business Days’ written notice to the other party. (ii) This Agreement may be terminated at any time by either party giving thirty (30) Business Days’ prior written notice to the other party upon: A. a material breach of this Agreement by the other party that is incapable of being remedied; or (iii) This Agreement may be terminated at any time by either party giving two (2) Business Days’ prior written notice to the other party upon: A. the commencement of liquidation or insolvency of the other party (except for the purposes of solvent amalgamation or reconstruction); B. the appointment of a receiver, administrator, liquidator, statutory manager or trustee of property to the other party; C. an assignment for the benefit of the other party’s creditors; D. the other party being unable to pay its debts in the ordinary course of business; E. the Customer fails to pay to the Supplier any Fees payable in accordance with this Agreement. (b) For all other Services provided otherwise than under an Order Form, the Supplier may terminate this Agreement and the Customer’s use of the Services immediately without notice if the Customer fails to comply with any term or condition of this Agreement. 9.3 Consequences of Termination (a) On termination of this Agreement all the Customer’s rights granted under this Agreement will terminate. The Customer will promptly discontinue use of and destroy any copies of the Applications and Confidential Information in its possession or control and provide the Supplier with a certificate signed by a duly authorised officer of Customer that it has complied with this provision. (b) Termination of this Agreement will automatically terminate any Order Form incorporated into the terms of this Agreement and the subscription to the Applications and/or Services will terminate immediately. (c) On the Customer’s request (made within thirty (30) Business Days after the effective date of termination) the Supplier will make available to Customer the Customer Data stored in the Applications. Following the thirty (30) Business Day period, the Supplier will have no obligation to maintain or provide any Customer Data and may delete all Customer Data in the Services or its systems or otherwise in its possession or under its control. (d) If the Services are terminated by the Customer the Fees paid by the Customer are not refundable by the Supplier. If the Services are terminated by the Supplier, any Fees paid by the Customer in advance for Services that have not been provided as at the date of termination are refundable by the Supplier, and the Supplier will not be required to provide such Services to the Customer. 9.4 Survival Except as expressly provided in this Agreement, clauses 5 to 11 will survive the termination of this Agreement together with those other provisions of this Agreement which are incidental to, and required in order to give effect to those clauses, will remain in full force and effect. 10. WARRANTIES AND DISCLAIMERS 10.1 Warranties (a) Each party warrants that it has the power and authority to enter into this Agreement. (b) For Services performed under an Order Form the Supplier warrants that: (i) it will provide the Services with due skill, care and diligence; and (ii) the Services will operate substantially according to the specifications in the Documentation. 10.2 Disclaimer (a) The warranties under clause 10.1 are the sole and exclusive warranties given by the Supplier under this Agreement. To the maximum extent permitted by law, the Supplier and its licensors make no other representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Service, the Applications or the results of the Services. (b) The Supplier and its licensors do not represent or warrant that: (i) the Application or the Services will meet Customer’s or its Users specific needs, requirements or expectations, or achieve a particular marketing or other business result; (ii) the use of the Service or Applications will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data; (iii) any stored data will be accurate or reliable; (iv) the quality of any products, Services, information, or other material obtained by Customer through the Services will meet Customer’s requirements or expectations; (v) errors or defects will be corrected; or (vi) the Service or the server(s) that make the Service available are free of viruses or other harmful components or are not susceptible to intrusion or attack. (c) The Services and all Data are provided to Customer strictly on an "as is" basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are disclaimed to the maximum extent permitted by law by the Supplier and its licensors. The Service may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. The Supplier is not responsible for any delays, delivery failures, or other damage resulting from such problems. (d) Despite anything else contained in this Agreement: (i) the parties agree and acknowledge that if the Services supplied by the Supplier are supplied or acquired in trade within the meaning of the Fair Trading Act 1986, that sections 9, 12A, and 13 of the Fair Trading Act 1986 will not apply to this Agreement, and that it is fair and reasonable to exclude their application; (ii) the parties agree and acknowledge that both are in trade, and that the Services supplied by the Supplier and acquired by the Customer are supplied or acquired in trade, that the provisions of the Consumer Guarantees Act 1993 will not apply to this Agreement, and that it is fair and reasonable to exclude their application; (iii) the parties agree and acknowledge that the provisions of the Sale of Goods Act 1908 will not apply to the terms of this Agreement; and (e) For the purposes of clause 10.2(d), the Customer acknowledges and agree that it has had a reasonable opportunity to review these terms, discuss them with the Supplier and receive advice from the Customer’s legal advisor. 11. INDEMNITY The Customer agrees to defend, indemnify and hold harmless the Supplier from all liabilities, claims of any nature, losses, costs, amounts and expenses, including attorney's fees on a solicitor and client basis, that arise from, relate to or are otherwise connected with (directly or indirectly): (a) any misuse of and access to the Services and Applications by Users or anyone using the Users’ credentials; and (b) any alleged or actual breach of this Agreement by the Customer or any of its Users; and (c) any allegation or cause of action brought against the Supplier by a third party as a result of any act or omission by the Customer or any User. 12. LIMITATION OF LIABILITY 12.1 In no event will the Supplier be liable to the Customer or any other person or entity for any incidental or consequential damages, indirect, special, punitive, or exemplary damages, loss of business, loss of profits, loss of goodwill or business reputation, or business interruption arising out of or connected in any way with this Agreement or the Services, even where the Supplier has been advised of the possibility of such damage or loss. The total liability of the Supplier to the Customer for all damages, losses, and causes of action (whether in contract, tort (including negligence), or otherwise) must not exceed the total Fees paid by the Customer to the Supplier in the quarter prior to the event causing liability. 12.2 The Supplier will have no responsibility or liability whatsoever, whether in contract, tort, equity or otherwise by law, for any liability, damage, loss, cost, expense, proceedings or claims that the Customer suffers or incurs in connection with the Service or this Agreement. 12.3 The parties agree that the limitation of liability in this clause 12 represents a fair allocation of risk and is a material inducement to the Supplier entering into this Agreement. 12.4 The Customer agrees that: (a) the warranties and indemnities in this Agreement do not apply to any Third Party Offerings or materials (even if furnished by the Supplier); (b) it will direct all claims relating to any Third Party Offerings or materials directly to the third party and not to the Supplier; and (c) any warranties and indemnities, if any, that relate to Third Party Offerings or materials will be provided to that third party and not the Supplier. 13. Notices 13.1 Every notice to be given by a party to another party under or in connection with this Agreement must be in writing and sent using one of the addresses listed in the applicable Order Form. 13.2 Every notice to be given by a party under or in connection with this Agreement will be deemed to be received, as follows: (a) personal delivery, at the time of delivery to such person’s physical address; (b) mailing by post, 3 Business Days after the date of mailing to such person’s address; and (c) facsimile transmission, at the time the sender’s facsimile machine confirms by way of successful transmission report that the facsimile was transmitted to the facsimile number of the recipient. (d) email transmission, at the time the email leaves the information system of the sender provided the sender does not receive any error message relating to the transmission of the email. 13.3 For the purposes of this Agreement, any notice transmitted by facsimile or email or delivered after 5.00 pm on a Business Day, or at any time on a non-Business Day, will be deemed received at 9.00 am on the next Business Day. 13.4 If a written notice of change of address or facsimile number is notified to parties by any of the methods specified in clause 13.2 above, then the new address, email address or facsimile number will be deemed to be that party’s address or facsimile number for the purposes of this Agreement. 14. GENERAL TERMS 14.1 No Relationship The relationship between the parties created by this Agreement is that of independent contractors and not partners, joint venturers or agents. This is a non-exclusive arrangement. 14.2 Publicity and Case Studies (a) The Supplier may reference the Customer’s name and the nature of the Services provided under this Agreement in the Supplier business development and marketing efforts, including without limitation on its web site. (b) The Customer will co-operate with the Supplier in a press release announcing the Customer’s use of Services, within 30 days of the Commencement Date. (c) The Customer will co-operate with the Supplier in a case study relating to Customer’s use of Services. (d) The timing of any release of any case study associated with the Services is to be determined by the Supplier. Any release will not be requested before three (3) months of the Commencement Date and is subject to the Supplier obtaining the prior written consent of the Customer to the public release of any case study. 14.3 Entire Agreement This Agreement (including the Order Form and any ordering documents or URLs incorporated by reference) contains the entire understanding between the parties with respect to the subject matter of this Agreement, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the parties with respect to the subject matter of this Agreement. 14.4 Assignment Either party may, with the prior written consent of the other party, which consent cannot be unreasonably withheld (and consent is deemed to be unreasonably withheld if the assignment, novation, transfer or other disposition is to a person that is at least as creditworthy as the Supplier), assign, novate, transfer or otherwise dispose of the whole or any part of its rights and obligations under this Agreement at law or in equity (including by way of a charge or declaration of trust). 14.5 Modification and Waiver (a) Except for the Supplier’s modification or update of the Documentation, the Services or Applications, or any pricing or other policies referenced by a URL, or as necessary to comply with applicable law, rules, regulations, no modification of this Agreement, and no waiver of any breach of this Agreement, will be effective unless agreed to in writing by both parties. (b) No waiver of any breach of this Agreement, and no course of dealing between the parties, will be construed as a waiver of any subsequent breach of this Agreement. A determination that any provision of this Agreement is invalid or unenforceable will not affect the other provisions of this Agreement. 14.6 Force Majeure The Supplier shall not be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labour disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. 14.7 Governing Law This Agreement is governed by the laws of New Zealand and each party submits to the jurisdiction of the New Zealand Courts.