1 Scope of the Agreement 1.1 Parties This Agreement is between Fusion5 Limited (Fusion5) at Level 6, Lambton House, 160 Lambton Quay, Wellington, and [Customer] (you) at [Address]. 1.2 Term Subject to the other provisions of this Agreement, the term of this Agreement shall commence upon execution of the Agreement. The Maintenance Services shall continue for the Initial Period and upon expiry of the Initial Period, the Agreement to provide such services shall automatically renew for succeeding periods of one year. 1.3 Fusion5 Obligations Fusion5 shall grant the Software Licence to you; and perform the Maintenance Services, on and subject to the terms and conditions of this Agreement. 1.4 Your Obligations You shall: 1.4.1 For on premise deployments only, in reasonable time before delivery of any Software system and at your expense prepare the relevant location and premises for the installation of the Software and provide proper environmental and operational conditions for the efficient working and maintenance thereof including ensuring that any relevant equipment you are providing is installed and operational at the relevant premises before any date specified in a Project Plan or otherwise agreed for the installation of the Software; 1.4.2 comply with all your obligations under this Agreement in connection with the Software Licence 1.4.3 and the Maintenance Services; and 1.4.4 pay the Fees, on and subject to the terms and conditions of this Agreement. 2 The Software Licence 2.1 Grant of the Software Licence In consideration of the receipt by Fusion5 of the Licence Fee and subject to you complying with the terms of this Agreement, Fusion5 grants to you a non-exclusive, non-transferable, perpetual right to install and use the Software and Documentation for the internal management and operation of your own business and for the Number of Licensed Users set out in Schedule 3. 2.2 Number of Licensed Users and Licensed Companies You must immediately notify Fusion5 should the Number of Licensed Users or Companies exceed that set out in Schedule 3 and an additional fee will be payable to extend the Fusion5 Software Licence to cover the additional Number of Licensed Users or Companies from the date such number changed. 3 Services Subject to the other terms of this Agreement, Fusion5 will provide you with the following Maintenance Services. 3.1 Support Services Subject to and conditional upon receipt by Fusion5 of that portion of the Software Fee relating to Maintenance Services, Fusion5 shall provide Support services to you in accordance with Schedule 1. 3.2 Software Maintenance Services Subject to and conditional upon receipt by Fusion5 of the Software Fee, Fusion5 shall provide software updates and maintenance for the current and immediately preceding releases of your Fusion5 Software and Documentation. Fusion5 may at its discretion agree to provide enhancements or additional functionality or features to your Fusion5 Software at your request. In such cases Fusion5 may at its discretion charge for time spent scoping, developing, and/or documenting that enhancement, functionality or feature and will provide you with a version patch. Any such costs will be quoted and agreed with you prior to carrying out the services. 3.3 Technical Consulting and Project Management Services 3.4.1. Fusion5 shall provide consulting and project management services in relation to the Software as requested by and agreed with you from time to time at your cost at Fusion5’s standard Consultancy Fee applying at the time. 3.4.2. Before providing any consulting or project management services, Fusion5 will provide a written work order with you for the total fee to be paid for our services. 3.4.3. Fusion5 will use its reasonable endeavours to deliver, install and configure all Software, Documentation and/or third party products as well as train your nominated employees to a reasonable standard in the use of the configured Software. 4 Your Responsibilities 4.1. As conditions subject to which Fusion5 shall provide the Software Maintenance Services and without limiting any other provisions of this Agreement, you must: 4.1.1. meet all minimum specifications in relation to users’ workstations and your network as advised by Fusion5 from time to time; 4.1.2. use your reasonable endeavours to ensure unauthorised third parties do not gain access to your data, and maintain the integrity and accuracy of your data; 4.1.3. upgrade the Software and Documentation so that a current release or an immediately preceding release is the version in use; 4.1.4. if not hosted by Fusion5, carry out and store regular backups of your Fusion5 Software data; 4.1.5. comply with your obligations as set out in Schedule 1 prior to contacting Fusion5 in the event of any user issues; 4.1.6. ensure nominated employees are available for training in the Software and/or Documentation and maintain their knowledge through all Software and Documentation updates; 4.1.7. contact Fusion5 for support purposes primarily using the internet or email except when the issue is critical whereby contact must be as immediate as possible and you accept any resolution delays resulting from a delayed notification; 4.1.8. advise Fusion5 of any settings or configurations required and applied by you to your Fusion5 Software, that may impact Fusion5’s ability to deliver support services. 4.2. It is a condition of your Software Licence that you shall not: 4.2.1. reverse engineer, decompile or disassemble the Software or Documentation in an attempt to duplicate the Software or imitate any of its functions; 4.2.2. sell, lease, sublease, rent, lend, assign, or transfer in whole or in part or provide unlicensed third parties access to the Software or Documentation; 4.2.3. without the prior written consent of Fusion5, modify, merge or combine the whole or any part of the Software or the Documentation with any other software or documentation; 4.2.4. save as expressly permitted by this Agreement, copy or translate the whole or any part of the Software or the Documentation; and not knowingly do, authorise or permit any third party to do, any act that would or might infringe any of Fusion5’s Intellectual Property. 5 Warranties 5.1. Fusion5 warrants that: 5.1.1. it is authorised to enter into this Agreement; 5.1.2. for a period of 30 days from the Go Live Date the Software will in all material respects provide the functionality specified in the Documentation; 5.1.3. services it provides under this Agreement will conform to generally accepted industry standards for such services but does not warrant that such services, or resulting work product, will be error free; 5.1.4. its obligations will be carried out with all due care, skill and diligence in accordance with good business practice for the industry; and 5.1.5. it is entitled to grant the Software Licence in accordance with the terms and conditions of this Agreement. 6 Your Confirmations As appropriate, you acknowledge, confirm and warrant that: 6.1. At any time that you commence live production use of any Software you will be deemed to have accepted that Software for all purposes connected with this Agreement. 6.2. Where liability is accepted by Fusion5, all warranties and representations, expressed or implied by statute, common law or otherwise in relation to the Software or its maintenance, are excluded to the fullest extent permitted by law and Fusion5 shall be under no liability to you for any loss, damage or injury, direct or indirect, or for loss of profit, resulting from defects in the Software or services provided hereunder, howsoever arising, and whether or not caused by the negligence of Fusion5, its employees or agents. 6.3. If Fusion5 is found to be liable to you then its liability for any single event or series of related events is limited to an amount equivalent to the Software Fee and Consultancy Fee paid by you to Fusion5 in the 12 months immediately preceding the event or the first event of the series of related events giving rise to the liability. 6.4. Notwithstanding any provision of this Agreement, neither party will have any liability or responsibility to the other party for any indirect or consequential injury or loss howsoever arising (including, without limitation, any loss of profits, loss of use, loss of data, loss of business opportunity or loss of goodwill) whether or not a party shall have been made aware of the possibility of such loss. 6.5. You release Fusion5 from all obligations, liabilities, claims or demands in excess of the limitations set out in this Agreement and you acknowledge that other parts of this agreement rely upon the inclusion of this section and the resulting allocation of risks. 6.6. In no circumstances shall Fusion5 be liable to you for any loss or damage caused in any way by: 6.6.1. the Software other than the then-current release and the immediately prior release of that Software; 6.6.2. any third party software; 6.6.3. damage or problems (including but not limited to damage to your data or computer media) caused by your failure to provide a suitable operating environment; 6.6.4. any failure or defect in any Hardware or equipment; 6.6.5. a failure of one or more of your firewalls or any other data security measure; or 6.6.6. by accidental damage, errors or other matters beyond Fusion5’s reasonable control. 6.7. No action arising out of this Agreement, regardless of form, may be brought by either party more than 12 months from the date of a Party becoming aware of the event causing the loss, unless the party bringing the claim has provided a written claim to the other outlining the general nature of the claim within 12 months of such Party becoming aware of the event causing the loss. 6.8. You are licensing and using the Software for the internal management and operation of your own business. 7 Intellectual Property 7.1. You acknowledge and agree that this Agreement confers on you no rights in the Software or the Documentation other than as are expressly granted by this Agreement and all rights, title and interest (including without limitation all copyright trademarks and other Intellectual Property) in the Software, Documentation, any enhancements or modifications to the Software or Documentation made by any person and the Maintenance Services is owned exclusively by Fusion5. 7.2. You shall notify Fusion5 immediately upon you or anyone you are responsible for becoming aware of any unauthorised use of the whole or any part of the Software and/or Documentation by any person. 7.3. Any Intellectual Property derived from the provision of the various services under this Agreement by Fusion5 shall be the property of Fusion5. 8 Termination 8.1. Either party may terminate this Agreement immediately by notice in writing upon: 8.1.1. the other party committing any Material Breach of this Agreement that is incapable of remedy; or 8.1.2. the other party failing to remedy any Material Breach of this Agreement capable of remedy within 8.1.3. 30 days of written notice by the non-defaulting party requiring that breach to be remedied; or 8.1.4. the commencement of liquidation or insolvency of the other party (except for the purposes of solvent amalgamation or reconstruction) or upon the appointment of a receiver, liquidator, 8.1.5. statutory manager, or trustee of property or upon an assignment for the benefit of its creditors, or upon that other party being unable to pay its debts in the ordinary course of business. 8.2. Notwithstanding any other term of this Agreement, either party may terminate the Support and Maintenance Services provided under this Agreement without cause by giving not less than two months’ notice in writing prior to and to take effect at the end of any annual support year provided the date upon which such notice is given to the other party is after the expiration of the Initial Period.   Schedule 1 – Support Services Support services are comprised of the following services provided as part of Software Maintenance: • direct assistance in respect of issue resolution relating to application • resolution of software defects • the logging, management and escalation of advice and rectification work for Software defects, as described in Schedule 2. Additional education, support and professional services are also available through a time and material engagement with Fusion5 Customer Success Team or Professional Services: • Consulting, Training, Configuration services • Data migration • Report development • New feature / enhancements development. Support Desk Services The Fusion5 Customer Success Team is the first point of contact for all support and software defect issues. All calls or emails are to be placed with the Fusion5 Customer Success Centre, so they can be logged and monitored. You will provide an internal expert as a first point of contact for your Users prior to escalation of the issues to Fusion5. In this event, only the internal expert shall contact the Support Desk. Fusion5’s Customer Success Team, iHelp application is the primary method of contact except for Priority 1 where phone contact is also recommended. Fusion5 will take into consideration all facts provided by you in assigning a priority rating. Before initiating a customer support request to Fusion5 you will have: • first attempted to resolve the issue yourself by referring to the latest applicable Software documentation and/or any internal information expertise available to your Users, • checked that the same issue has not previously been logged by any of your Users and resolved, and • eliminated the possibility that the issue is either not a Software defect or not related to the Software in any way. • Document the exact steps to replicate the issue If you don’t take all such reasonable steps, Fusion5 may charge for time spent investigating and resolving that issue at its then applicable charging rates subject to any minimum charge Fusion5 may fix from time to time. Any such costs will be accompanied by a report detailing the issue, resolution, and User contact.   Support Service Levels - Priority Description Examples Time to Resolution The following priorities and resolutions targets are for Maintenance Support Services which covers software defects only. Fusion5 Customer Success Team offer application support Service Level Agreements through PartnerPlus which cover a wider range of support and continuous improvement services. P1: Critical Priority Request An operational issue that causes data corruption, a software crash or hang, or functional regression over a previous version AND same day resolution is critical. P2: High Priority Request An operational issue that causes data corruption, a software crash or hang or functional regression over a previous version AND resolution is essential within 3 Business Days. P3: Standard Priority Request An operational issue supported under a Agreement related to such matters as maintenance, edits, advice, assistance, and orders where resolution would normally be provided within 10 Business Days. P4: Low Priority Request Issues with no impact to Software or Documentation functionality, enhancements or service to customers. Schedule 2 – Software Maintenance Services Software maintenance services are comprised of: • Software updates; and • Correction of Software defects. Software Updates Fusion5 will provide the following Software updates and advise any varied operational procedures that will result from a Software and Documentation update: • At least one Major update provided per year • Updates, Improvements and Enhancements to modules already purchased • New modules and updates to modules not yet purchased, which may attract applicable Software License Fees Software Defects Fusion5 shall use reasonable efforts to correct any defects in the current or immediately prior release of the Software or current release in accordance with this Schedule 2. Exclusions from Software and Documentation defect correction under the Maintenance Services Fusion5 is not obliged to provide Maintenance Services in the following circumstances: • use by any person of the Software other than in accordance with or the purposes provided for in the applicable Software Documentation; • modifications to the Software made other than by Fusion5; • configuration of any Software made other than by Fusion5 or which is not carried out in accordance with Fusion5's specified procedure as set out from time to time for such Software; • use of the Software other than with hardware and operating systems approved by Fusion5 from time to time; • the request for Maintenance Services is made in connection with a version of the Software which is not the current or immediately preceding release of the Software; • where the request for Maintenance Services is due to a failure by you to implement recommendations in respect of or solutions to faults previously advised by Fusion5; • use of any software in conjunction with the Software, other than software specified or agreed by Fusion5; • faults in the hardware and/or operating systems and/or any other software used in conjunction with the Software; • defects in the Software caused by anyone other than Fusion5; and • where the request for Maintenance Services is due to the Software being installed by any person not authorised by Fusion5. Fusion5 may charge Consultancy Fees at its then current rates for any Maintenance Services provided to you in the circumstances set out above.