Introduction
A	Modal has agreed to provide the ModalConnect Software as a Service (SaaS) in a manner that meets the Licensee’s identified business requirements.
B.	Licensee has agreed to subscribe to the ModalConnect SaaS on the terms and conditions contained in the Agreement and Terms of Use described on the ModalConnect website https://www.modalconnect.com/terms-of-use 

1	Interpretation
1.1	Scope of Agreement:  This Agreement comprises these terms of agreement, including all schedules and appendices attached to them.  In the event of any conflict of meaning or ambiguity, the documents that comprise this Agreement shall have the order of precedence set out below:
i.	any variations to this Agreement agreed in writing between the parties after the date of this Agreement, including changes to schedules and appendices agreed through the Change Request Procedure. 
ii.	the terms of this Agreement in clauses 1 to 27.
iii.	the schedules to this Agreement. 
iv.	the Proposal.
1.2	Precedence:  If there is any conflict of meaning between information contained within the schedules or appendices then the order of precedence shall be reverse chronological order, that is, information contained in later documents shall prevail over information contained in earlier documents.  However, obligations stated in earlier documents which are omitted in later documents shall continue to apply unless the later documents expressly exclude those obligations or those obligations are clearly inconsistent with the provisions of the later documents.
1.3	Definitions:  In this Agreement, unless the context otherwise requires: 
Additional Services means those services provided in addition to the services specified in the Schedule of Services or otherwise specified in this Agreement, as agreed in writing from time to time under the Change Request Procedure.
Agreement has the meaning in clause 1.1.
Annual Subscription means the sums payable by the Licensee for the hosting, use and support of the SaaS.
Best Industry Practice means that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled, reasonable and experienced operator in the information technology industry in the same or similar circumstances, with reference to best international standards and practices.
Change Request means a request in writing by the Licensee in accordance with the Change Request Procedure.
Change Request Procedure means the procedure specified in section 4.
Charges means the Modal charges set out in the Payment Schedule 5 as may be varied from time to time in accordance with this Agreement.
Commencement Date means when the Licensee Active Directory is connected to ModalConnect for User authentication and access.. 
Confidential Information means all information, know-how, ideas, concepts, or business knowledge of a confidential nature relating to the business or activities of a party to this Agreement, and in the case of the Licensee, includes the Licensee Data.
Defect means a defect or deficiency in the Software as written, Rectified or Enhanced from time to time by Modal, which renders the Software unable in whole or part to perform its intended function.
Licensee Data means: 
(a)	any Licensee data input, uploaded or added into the Services from time to time; and
(b)	any other Licensee data or information provided or made available by the Licensee to Modal under or in connection with this Agreement, including any “personal information”.
Licensee Operating Environment means all aspects of the Licensee's information technology and telecommunications environment, including hardware, operating systems, middleware, network systems, applications, processing facilities, support systems and desktops, whether in a production or other environment from time to time.
Designated Representative means the person appointed by a party with sufficient authority to represent, and act on behalf of, that party, as identified in the Personnel Schedule 6.
Disabling Code means any program code or programming instructions, or any device, which may damage, interfere with, impair or otherwise adversely affect a party's operations, prevent or hinder access to any program or data, or enable unauthorized access to any program or data, impair or disrupt the operation of any program or the reliability of any data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise), including malicious code, trojan horses, worms, spyware, malware, computer viruses, logic bombs, backdoors and other similar things which could have been prevented using Best Industry Practice.
Disaster means one or more events affecting the provision of the Services (in whole or in part) such that significant effort is required to restore the performance of the Services to the level required under this Agreement.
Disengagement Plan means the disengagement plan prepared and approved under clause 21.10.
Disengagement Services means the disengagement services provided or to be provided by Modal, as described in a Disengagement Plan prepared and approved in accordance with clause 21.10.
Documentation means all documentation to be provided in association with a Service including, without limitation, user manuals, handbooks, operation manuals, educational and training materials and all other materials required by the Licensee in order to use, operate and administer the SaaS in an effective manner including the Documentation specified in the Services Schedule 2, all of which shall be provided electronically.
Enhancement means improvements to the Software initiated and effected by Modal from time to time, and references to “Enhanced” shall be construed accordingly.
Go-Live Date means the date that the Licensee goes into production use of the SaaS.
Initial Term means 12 months from the Commencement Date.
Interfaces has the meaning defined in clause 3.3 and includes those Interfaces identified in the Services Schedule 2.
Intellectual Property means in respect of any person, all intellectual and industrial property rights and interests (including common law rights and interests) owned or held by that person, or lawfully used by that person, including:
(a)	copyrights, patents, trademarks, service marks, circuit layouts, registered designs, trade names, symbols or logos;
(b)	patent applications and applications to register trade marks, service marks and designs; and 
(c)	formulae, methods, plans, data, drawings, specifications, characteristics, equipment, designs, inventions, discoveries, improvements, know-how, experiences, software products, price lists, costings, brochures, trade secrets, and other information used by that person.
Payment Schedule means Schedule 5.
Personnel means all individuals engaged by Modal in relation to the Agreement and the provision of the Services, including employees, independent contractors, sub-contractors, agents, external consultants, and technical support.
Personnel Schedule means Schedule 6.
Proposal means the document prepared by Modal for the subscription to the ModalConnect SaaS. A copy of which is attached as Appendix 1 to this Agreement.
Protective Security Incident means a security incident that is:
(a)	a breach of the Licensee's protective security policy or procedures;
(b)	an approach from anybody seeking unauthorised access to the Licensee's Personnel or other officials or official information; or
(c)	any other event that harms, or may harm, the security of the Licensee and/or the Licensee's Confidential Information;
Rectification means amendments to the Software as written or Enhanced in order to correct Software Defects or to amend the Software so that it complies with the described functionality and intended use, and references to “Rectified” shall be construed accordingly.
Service Levels means those service levels for the Services specified in the Support Services Schedule 4 or agreed in writing in connection with Additional Services.
Service Provider means Modal in providing the Services and Additional Services under the terms of this Agreement.
Services means:
a.	the provision of the SaaS;
c.	the Training and Support Services;
d.	the Disengagement Services;
e.	any other services set out in this Agreement, including in the Services Schedule 2; and
f.	any Additional Services.
Services Schedule means Schedule 2.
Site means the location or locations specified in Item 3 of Schedule 1 at which the SaaS is hosted.
Software means the software components described in Schedule 2 that shall be provided and licensed to the Licensee as part of the SaaS, as written, Rectified or Enhanced.
Software as a Service means the provision and licensing of the Software to the Licensee under this Agreement, with such Software having been configured and implemented to meet the described functionality and use set out in the Proposal and the Licensee's other use requirements for the SaaS, and such Software to be accessed online by the Licensee via a subscription, and references to “SaaS” shall be construed accordingly
Support Hours means those hours more specifically described in the Support Services Schedule 4. 
Support Services means those services more specifically described in the Support Services Schedule 4.
Support Services Schedule means Schedule 4.
Training means the training services to be supplied by Modal, as set out in the Services Schedule 2.
User Numbers means the maximum number of concurrent users that may use the Software at any one time, as set out in the Services Schedule 2.
Working Day means Monday to Friday (other than a national public holiday in New Zealand) between the hours of 8:00am and 5:30pm.
1.4	Interpretation:  For the purposes of interpretation and construction of this Agreement:
(a)	words importing one gender include the others;
(b)	words importing the singular or plural number include the plural and singular number respectively;
(c)	references to sections, clauses, schedules and appendices are references to sections, clauses, schedules and appendices in this Agreement unless expressly stated otherwise; 
(d)	subject to clauses 1.1 and 1.2, any terms and conditions set out in the Schedules or Appendices to this Agreement shall have the same effect as if set out in the body of this Agreement;
(e)	headings are inserted for the sake of convenience of reference only and do not affect the interpretation of Agreement;
(f)	a reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them (whether before or after the date of this Agreement);
(g)	references to persons shall be deemed to include references to individuals, companies, corporations, firms, partnerships, joint ventures, associations, organisations, trusts, states or agencies of state, government departments and local and municipal authorities, whether incorporated or not, in each case whether or not having separate legal personality;
(h)	all amounts payable under this Agreement are expressed exclusive of GST and in New Zealand dollars;
(i)	references to “include”, “includes”, and “including” must be read as if they are followed by the phrase “without limitation”;
(j)	derivations of any defined words shall have a corresponding meaning;
(k)	any obligation falling due for performance on or by a day other than a Working Day shall be performed on or by the Working Day immediately following that day;
(l)	an obligation not to do something includes an obligation not to allow or cause that thing to be done;
(m)	references to “implement”, and “implementing” (and other grammatical forms of this word) refer to the action of providing access to the SaaS for productive use by the Licensee for business purposes (other than testing purposes); and
(n)	references to the parties include (insofar as is consistent with the provisions of Agreement) their respective personnel, approved agents, approved subcontractors, their respective successors in title and permitted assigns, executor and administrator.
 
2	Commencement and Duration
2.1	Term:  Notwithstanding the date of signing of this Agreement, this Agreement shall commence on the Commencement Date, and shall, unless sooner terminated under section 21 (Termination), continue for the Initial Term.
2.2	Renewal:  Upon expiry of the Initial Term, this Agreement shall be automatically extended for successive periods of one year on the anniversary of the Commencement Date. 
3	Scope
3.1	Overview:  Modal agrees to provide the Services and to supply and implement the SaaS and to provide training and post-implementation support services in relation to the SaaS in accordance with this Agreement.  In particular, Modal shall:
(a)	provide and make the SaaS available for use by the Licensee; 
(b)	provide the Training and the Support Services to the Licensee; and
(c)	provide the Disengagement Services to the Licensee,
in accordance with the terms of this Agreement. 
3.2	SaaS:  Modal shall:
(a)	make available the SaaS for use by the Licensee;
(b)	carefully test the SaaS to verify that the SaaS meets the described functionality set out in the Proposal and the Licensee's other use requirements for the SaaS; 
(c)	supply access to the SaaS to the Licensee within the agreed services as described in Services Schedule 2; and
(d)	provide such fixes, and other defect resolution as is necessary to ensure that the SaaS is available for use by the Go-Live Date.
3.3	Interfaces:  Modal shall supply all interfaces between the Software and the Licensee’s other software components or services (“Interfaces”), as defined in Services Schedule 2, required to deliver the SaaS.
3.4	Training:  Modal shall provide training services to the Licensee’s trainers to enable the Licensee to train the applicable Licensee staff and personnel to use the SaaS effectively in the manner contemplated by this Agreement.  Training shall:
(a)	be provided at the times and in the manner specified in Services Schedule 2 and as otherwise agreed from time to time in accordance with the Change Request Procedure;
(b)	be provided by experienced and competent Personnel who are thoroughly familiar with the SaaS and the manner in which users will need to use the SaaS in order to achieve the Licensee’s required business outcomes in relation to the System; and
(c)	include sufficient actual use of the SaaS by trainers in addition to instruction in their use to ensure that the trainers are able to use, manage and train others on the SaaS confidently and effectively; and
(d)	include the provision to the Licensee of the end user documentation for training and online help.
3.5	Support Services:  Modal shall provide Support Services to the Licensee as set out in the Support Services Schedule 4 and as otherwise agreed from time to time in accordance with the Change Request Procedure.  Modal shall provide the Support Services:
(a)	in accordance with the Service Levels applicable to those Services; and
(b)	in accordance with the warranties set out in section 16 (Warranties).
3.6	Additional Services:  Modal agrees to provide Additional Services as agreed from time to time in accordance with the Change Request Procedure.
4	Change Request Procedure
4.1	General:  The Change Request procedure referred to in clauses 4.1 to 4.6 relate to changes to this Agreement and the Services provided. Post-implementation changes to the Software will be addressed through the Support Services.  The Licensee may at any time request:
(a)	performance of an Additional Service; or 
(b)	change in the nature or scope of the Services; or
(c)	a change to the schedule of Services,
	by submitting a written request (a “Change Request”) to Modal describing the nature of the service or change requested.  
4.2	Provision of information:  The Licensee will provide all such information and assistance as is reasonably required to enable Modal to consider and deal with the Change Request.
4.3	Consultation:  Within two Working Days after the submission of a Change Request, the respective Designated Representatives shall discuss the actions required to fulfil the Change Request, the practicality of the Change Request and the resulting changes to the Services, Service Levels, the schedule of Services, the responsibilities of each party, the applicable charges and any other relevant changes.  Following such discussion, and within such reasonable period of time as is acceptable to the Licensee, Modal will confirm in writing the following matters based on the information provided in the relevant Change Request:
(a)	the amounts (if any) proposed to be charged by Modal for implementing the Change Request;
(b)	any changes to the terms and conditions of the schedule of Services or Agreement which may be required to implement the Change Request;
(c)	any impact which implementation of the Change Request may have on the ability of Modal to satisfy the requirements of the Change Request; and
(d)	any other information which may be relevant to the Licensee’s consideration of the Change Request.
4.4	Responses to Change Requests:  Modal shall ensure that all its responses to Change Requests or questions concerning Change Requests are fair, reasonable and accurate.  Modal shall not unreasonably decline to consider or perform any Change Request nor seek to impose any unreasonable conditions or charges in respect of that Change Request being met.
4.5	Agreement to Change Request:  If agreement in principle is reached to the Change Request, a variation to this Agreement shall be signed by the parties.  
4.6	Liability for variations:  The Licensee shall not be liable to pay for any variations carried out by Modal that have not been authorised pursuant to the Change Request Procedure and agreed by both parties in writing under a signed variation.  Modal shall have no obligation to proceed based on any Change Request, and the Licensee shall have no obligation to pay any additional charges, until such Change Request has been agreed by both parties under a signed variation. 
4.7	Cost of Change Request:  Each party shall bear its own costs incurred relating to preparing and responding to a Change Request, unless otherwise agreed in writing.
5	Modal general responsibilities
5.1	General responsibilities:  Without limiting its other obligations in this Agreement, Modal will:
(a)	assist with or perform (as required by the Licensee) the configuration of the SaaS for use by the Licensee from time to time;
(b)	ensure that Personnel engaged by Modal to perform the Services under this Agreement have sufficient knowledge of the technical and functional requirements and practices and shall have at least the level of skill, qualifications and experience in their respective areas of expertise as is reasonably required to configure, implement and manage the Services and hold all necessary licences, approvals and permits for the relevant tasks or responsibilities undertaken by such Personnel;
(c)	in providing the Services and otherwise performing this Agreement:
i.	maintain all licences, approvals, consents and permits required in order to provide the Services and otherwise to perform its other obligations under this Agreement;
(d)	provide the Services so as to meet or exceed the Service Levels; and
(e)	notify the Licensee in writing of:
i.	any breach or likely breach of Modal's obligations under this Agreement; and
ii.	any matter that could impact on Modal's ability to perform its obligations in accordance with this Agreement.
5.2	Service Provider:  Modal agrees to supply the Services as the Service Provider, which means that Modal must supply sufficient resources and suitable Personnel to fulfil its responsibilities under this Agreement and under any additional terms agreed between the parties in writing, subject only to due performance by the Licensee of its obligations expressly specified in this Agreement.  As the Service Provider, Modal shall be responsible for the quality and timely delivery of all Services supplied by its Personnel, including contractors and suppliers.
5.3	Modal resources: Modal shall, at its own cost and expense, be responsible for procuring and maintaining adequate software, equipment and other resources and facilities to enable Modal to supply the Services and to perform its other obligations under this Agreement.  The Licensee shall not be responsible for supplying any software, equipment, or other resources or facilities except to the extent that this Agreement expressly requires any such items to be supplied by the Licensee.
5.4	Quality and standards:  Modal shall carry out all its obligations with all due care, skill and diligence that would be expected of a skilled professional and to a level reflective of, and in accordance with Best Industry Practice, and shall employ techniques, methods, procedures and materials of a high quality and a standard that accords with Best Industry Practice.  
5.5	Reliance upon Modal:  Modal acknowledges that the Licensee relies upon the skill, expertise and judgement of Modal in Modal’s performance of its obligations under this Agreement.  Modal has advised the Licensee that it has sufficient skills and experience to provide the Services (including the SaaS) to the Licensee that will meet the described functionality for use in the Proposal and the Licensee's other use requirements for the SaaS.  The Licensee is entitled to rely upon all statements made at any time by or on behalf of Modal as to standards, skills and procedures which Modal will apply in performing its obligations under this Agreement in order to assure the quality of the Services.
5.6	Modal to host the SaaS:  Modal provides the SaaS and is responsible for providing the Licensee with access and availability within hosted services as described in Schedule 3.
5.7	System availability: Modal shall maintain the availability of the SaaS so as to meet or exceed the Service Levels, and provide support, services as described in Schedules 3 and 4. From time to time, maintenance of the SaaS will be required, and this may require a period of downtime. Modal will seek to minimize any downtime where planned maintenance is being undertaken and will notify the Licensee in advance of planned maintenance, in accordance with the required Service Levels. There will also be times when unplanned maintenance is performed, an example being to fix a ‘critical defect’, and on such occasions, Modal cannot guarantee notification in advance.
5.8	Mistakes in information:  Without limiting any of the Licensee's other rights and remedies in this Agreement, Modal shall make good at its own expense any defects or problems resulting from discrepancies or errors in any written information supplied by Modal including (but not limited to) any representations included in the Proposal or any documentation supplied by Modal, provided that such discrepancies or errors have not been caused by incorrect information supplied in writing by the Licensee. 
5.9	Minimum disruption to business:  Modal shall ensure that Modal and its Personnel perform their obligations so as to minimise disruption to the Licensee’s regular business activities.
6	Right to Use
6.1	Grant:  Subject to the provisions of this Agreement, Modal grants to the Licensee a non-exclusive, non-transferable licence to use the Software and the SaaS in accordance with the terms and conditions of this Agreement and terms of use of the SaaS expressly specified in this Agreement. To be clear, this includes enabling the Licensee to provide authenticated users with access to the Software and the SaaS. This may include employees and non-employees of the Licensee.
7	Licensee’s responsibilities
7.1	Licensee's responsibilities:  User access to the SaaS is controlled by the Licensee’s Active Directory (AD)/Azure Active Directory (AAD) authentication policies and user management. The Licensee has a responsibility to ensure that the AD/AAD is available and performing user authentication to enable user access to the SaaS.  
8	Personnel 
8.1	Modal Personnel:  Modal shall: 
(a)	ensure the Services are provided using appropriately experienced, skilled and qualified Personnel who are capable of providing the Services to the standards required under this Agreement;
(b)	remain responsible for all acts and omissions of its Personnel as if they were the acts or omissions of Modal; and
(c)	provide the Licensee upon request with satisfactory evidence concerning the qualifications, skills and experience of the Personnel engaged by Modal to provide the Services together with any other information that the Licensee may reasonably require to assess the suitability of those Personnel.  In the event that the Licensee is not satisfied that any person proposed by Modal is suitable, then Modal shall make available a suitable replacement person without delay.
8.2	Replacement Personnel: Modal shall promptly appoint suitable replacement Personnel if any of its Personnel engaged to provide Services resign, are removed, or otherwise cease to be available, and shall notify the Licensee in writing of the new appointment.  Such reassignment or replacement shall be at the sole cost and expense of Modal and Modal shall meet the cost of any delays caused by such reassignment or replacement and the cost of training and induction of replacement Personnel. 
8.3	Designated Representatives:  Modal and the Licensee shall each appoint a Designated Representative.  Each Designated Representative shall have full authority to raise and discuss all matters relating to this Agreement on behalf of his or her appointing party.  Modal’s Designated Representative shall be available as reasonably requested by the Licensee’s Designated Representative to resolve any issues and shall attend meetings at Modal’s cost upon reasonable request by the Licensee’s Designated Representative for the purpose of discussing and resolving issues related to the delivery of the Services.  The Licensee’s Designated Representative shall oversee performance of the Licensee’s express tasks and obligations under this Agreement and shall be available as reasonably requested by Modal’s Designated Representative to discuss issues relating to the Services.
8.4	Availability of Personnel:  Both parties recognise that the availability of their respective Personnel as and when required under this Agreement is of fundamental importance to the successful migration to the SaaS.  Each party must ensure the availability of their respective Personnel in accordance with the terms of this Agreement.  To ensure continuity of availability of Personnel, Modal shall change its essential Personnel only where such action is unavoidable after reasonable consultation with the Licensee and in accordance with an agreed transition plan.
8.5	Unavailability of Personnel:  Where Personnel are unable to undertake work in respect of this Agreement in the event of termination of employment, resignation, illness, disability or death or other circumstances reasonably beyond the control of Modal then Modal shall notify the Licensee immediately.  Modal shall seek to provide replacement Personnel acceptable to the Licensee at no additional cost to the Licensee.
8.6	Checks:  Modal agrees to the Licensee undertaking criminal conviction history, police, other probity, security and/or credit checks on Modal's Personnel (including in accordance with the Criminal Records (Clean Slate) Act 2004) and shall ensure that all Personnel provided by Modal agree to the same. These checks may be undertaken prior to commencement of this Agreement and may be repeated at any time after the Commencement Date. Modal agrees that the Licensee may use the results from these checks as input into the suitability of Modal’s Personnel at any time.  Modal shall inform the Licensee immediately of any criminal charges laid against Modal’s Personnel during the term of this Agreement. 
8.7	Schedule 6: Schedule 6 lists certain personnel for particular areas of communication for Agreement related purposes. Either party may make a change to such personnel, by advising the other party in writing. For the avoidance of doubt, a communication by one party to the other party, which is given other than to the relevant personnel named in Schedule 6, shall nonetheless be treated as an effective communication to the other party. 
9	Data protection and security
9.1	Stewards of Licensee Data:  As part of the Agreement, Modal will be hosting the Licensee Data.  Modal accepts the responsibility and the duty of care required when holding and maintaining access to the Licensee Data in compliance with the protective security requirements of the New Zealand Information Security Manual, and privacy of the Licensee Data in compliance with the Privacy Act 2020.
9.2	Modal obligations in relation to Licensee Data:  Without limiting any of Modal's other obligations in this Agreement, including under clause 9.1, Modal must:
(a)	use the Licensee Data only to the extent necessary to provide the Services;
(b)	not copy, reproduce, publish, sell, let modify, extract or otherwise part with possession of the whole or any part of the Licensee Data or relay or disseminate the same to any third party;
(c)	not allow access to the whole or any part of the Licensee Data to any third party (including any of Modal's other clients or customers);
(d)	not permit any Licensee Data to be transferred, stored, or made available to or accessed by any person, outside New Zealand or Australia, unless expressly authorised by the Licensee in writing in advance, which may be subject to conditions (noting that the Licensee may approve access by personnel temporarily outside of New Zealand).; 
(e)	where Licensee Data is held by Modal, including within the SaaS:
i.	maintain technical and all other reasonable safeguards in accordance with Best Industry Practice to protect the Licensee Data against any destruction, unauthorised access, loss, loss of integrity, alteration, misuse or disclosure, including by implementing and maintaining adequate virus protection;
ii.	ensure that such Licensee Data is encrypted and backed up at least daily and that copies of such back-ups are available at all times to the Licensee on request and in a format reasonably specified or required by the Licensee; and 
iii.	not allow the Licensee Data to be combined with Modal's, or any other person's, data in any way, except to the extent agreed to by the Licensee in writing.
9.3	Support Services: Without limiting the other obligations on Modal and Personnel under this Agreement, Modal will ensure that all Personnel comply with the Customer Data Management Policy set out in Schedule 8 when providing any Support Services. 
9.4	Disabling Code:  Modal will take all appropriate precautions in accordance with Best Industry Practice to prevent the introduction of Disabling Code to the Licensee and the Licensee Operating Environment when providing the Services.  Taking all reasonable precautions includes: 
(a)	ensuring that all systems and technologies used to provide the Services and to communicate with the Licensee are kept secure and employ best-in-class and up-to-date versions of reputable third party anti-virus software that is capable of the detection, shielding and inoculation of recently created Disabling Code;
(b)	checking files for Disabling Code using anti-virus software; and
(c)	taking appropriate action when Disabling Code is discovered, such as quarantining the file.
9.5	Cyber security:  Modal will take all appropriate precautions, in accordance with Best Industry Practice, to prevent the occurrence of any actual, threatened or suspected cyberattacks or cyber incidents affecting any of its systems, or that could adversely impact its performance of this Agreement, or the Licensee.
9.6	Security breaches:  If Modal becomes aware of a security incident related in any way to this Agreement, any actual, threatened or suspected cyber attack or other cyber incident, or any breach in the confidentiality, availability or integrity of the Licensee Data and the Licensee Operating Environment (in each case, a "Security Breach"), Modal must:
(a)	immediately notify the Licensee of the Security Breach; 
(b)	to the extent the Security Breach arises from or in connection with any act or omission of Modal:
i.	as soon as practicable identify the cause of the Security Breach and do all things within its power to remedy the Security Breach and its consequences; and
ii.	as soon as practicable provide the Licensee with a report detailing the cause of, and steps taken to remedy, the Security Breach, and certifying that Modal has, and all applicable subcontractors have, taken all reasonable action to prevent any recurrence of the Security Breach;
(c)	in any event, assist and work together with the Licensee to defend against, address, respond to, and mitigate adverse impacts from, such Security Breach; and 
(d)	without limiting Modal's other obligations under this Agreement, keep confidential the occurrence of, or suspected occurrence of, cyberattacks, data breaches and other cyber incidents (as applicable) to the extent possible under law.
9.7	Compliance by Personnel:  The Licensee may impose security requirements for the purpose of safeguarding against any security risks and Modal will ensure that all Personnel made available by Modal comply with such requirements upon notification by the Licensee.
10	Confidential Information
10.1	Confidentiality:  Each party will keep absolutely secret and confidential at all times all Confidential Information of which it, or its employees, agents or representatives may become aware relating to the other party and will not disclose, permit to be disclosed, use, communicate, cause to be communicated, copy, make available or re-supply such Confidential Information to any person other than those of its employees, agents or representatives to whom disclosure:
(a)	in the case of Modal, is necessary to meet its obligations under this Agreement; and
(b)	in the case of the Licensee, enables the Licensee to obtain the full benefit of the Services and for its business and operational purposes (which may include disclosure etc to other service providers),
without the prior written consent of the other party.  Each party will first take steps with its employees, agents or representatives to ensure that none of them uses any Confidential Information in a manner not authorised by this Agreement or discloses the same to any person without the prior written consent of the other party.
10.2	Exclusions:  The obligations of each person to whom Confidential Information is disclosed ("recipient party") in clause 10.1 above shall not apply to any Confidential Information that:
(a)	is, or at any time becomes, available to the public through no fault of the recipient party; or 
(b)	is lawfully disclosed to the recipient party by third parties not under confidentiality obligations; or 
(c)	is independently developed by the recipient party without the use of the other party’s Confidential Information; or
(d)	is disclosed to the recipient party's professional advisors who have been asked to provide advice on the party's rights or obligations under this Agreement, as long as those advisors are informed of the confidential nature of the information; or
(e)	is required to be disclosed by the recipient party by a governmental agency or law (including under the OIA), or Ministers or parliamentary convention.  In such event the recipient party must provide the other party with written notice of the required disclosure promptly upon receipt of notice of the required disclosure or in the case of a required disclosure under the OIA, when the Licensee (or an Ombudsman on reviewing the Licensee’s decision to withhold) has determined that there are no good reasons for withholding the information and has advised Modal accordingly. 
10.3	Publicity:  Modal shall not cause to be advertised or publicly announced, any information relating to this Agreement, or the subject of this Agreement, without the prior written approval of the Licensee in each instance.  Modal will immediately notify the Licensee verbally of any event affecting Modal or the provision of Services and that attracts, or is likely to attract, media attention.
10.4	Notification of breach of confidentiality:  Each party shall promptly notify the other of the loss of any items containing Confidential Information and of any circumstances of which it becomes aware concerning any unauthorised possession, disclosure or use of any Confidential Information of the other party.
11	Intellectual Property
11.1	Software:  The Licensee acknowledges that the Intellectual Property rights in the Software belong to Modal and the Licensee will not dispute such ownership.
11.2	Licensee Intellectual Property:  The Licensee owns and retains all right, title and interest in and to all Intellectual Property (“Licensee Intellectual Property”) that may subsist in:
(a)	the Licensee Data;
(b)	any and all information, programs, data and documentation that may be supplied or made available by the Licensee to Modal at any time, and any modification, translation, adaptation or development thereto made by any person or process; 
(c)	any and all information, data, and reports created, developed, authored, processed, populated or utilised through the use or operation of the SaaS, and any modification, translation, adaptation or development thereto made by any person or process; and
(d)	any matter, thing or process that has been requested and paid for by the Licensee or that comes into existence through performance of Services under this Agreement (other than the Software and Software Documentation),
which property shall vest in the Licensee when it comes into existence.  Modal will not deal with the Licensee Intellectual Property in a manner which is contrary to the Licensee’s interests and in particular shall not use, copy, disclose or dispose of any Licensee Intellectual Property except to the extent necessary for the performance of obligations under this Agreement or with the Licensee’s prior written consent.  Modal shall deliver all Licensee Intellectual Property in the possession or control of Modal to the Licensee upon request.
11.3	Licence to Modal:  The Licensee grants to Modal a non-exclusive licence for the term of the Agreement in relation to Licensee Intellectual Property subsisting in any matter, thing or process supplied by Modal or used by Modal in performing its obligations under this Agreement, for the sole purpose of and only to the extent required for Modal to give effect to and perform its obligations under this Agreement.
11.4	Licence to the Licensee:  Modal grants to the Licensee a non-exclusive licence during the term of the Agreement to use Modal's Intellectual Property (and/or any other Intellectual Property) in the SaaS and the Services:
(a)	to receive and utilise the SaaS and the Services for the purposes envisaged by, and in accordance with, this Agreement; and
(b)	to exercise the Licensee's rights and perform the Licensee's obligations under, or in relation to, this Agreement.
11.5	Intellectual Property third party licences:  If the SaaS or the Services require use of 3rd party Intellectual Property (including software development kits or source code), Modal shall obtain the Licensee's prior written consent before providing such aspect of the SaaS or Services to the Licensee, and Modal shall obtain a perpetual, non-exclusive licence that enables the Licensee to use such aspect of the SaaS or Services as required for the purposes of the Licensee’s business and operations.  
12	Documentation
12.1	Delivery of Documentation:  Modal shall provide the Licensee with copies of Documentation relevant to each Software release in electronic form.  The Licensee shall be entitled to (without charge) use, copy, and distribute such Documentation as the Licensee deems appropriate for the purposes of its business and operations.
12.2	Documentation quality:  Modal shall ensure that Software releases are adequately documented in accordance with Best Industry Practice and that all Documentation supplied to the Licensee is complete and reliable.  All Documentation must be written in terminology appropriate for the intended audience and must contain sufficient information to enable suitably skilled personnel of the Licensee to use the Software in an efficient manner. 
12.3	Other Documentation:  Modal will prepare and provide to the Licensee the Documentation detailed in the Services Schedule 2.
13	Software Tests
13.1	Quality assurance tests:  Prior to the release of the Software, Modal shall subject the Software to testing to ensure that the Software conforms to the described functionality (including the functionality and use requirements set out in the Proposal, and the Licensee's other use requirements for the SaaS) and is ready for release and use by the Licensee.  
13.2	Conduct of Tests:  Upon release of the Software, Modal shall assist the Licensee to conduct such tests reasonably considered necessary to verify that the data migration completed successfully, the Software performs described functionality for use (including the functionality and use requirements set out in the Proposal, and the Licensee's other use requirements for the SaaS) and that no service impacting Defects are identified within the Software. If data issues or Defects are identified when conducting these tests, ‘Request for Assistance’ notifications or calls shall be raised with the Modal Helpdesk.
 
14	Indemnities
14.1	Negligence or wilful acts:  Modal shall indemnify the Licensee from and against any actions, proceedings, liabilities, costs, claims, demands, losses, damages or expenses relating to bodily injury or death of any person or damage to property resulting from negligent or wilful acts of Modal, except to the extent that such consequences are caused, or contributed to, by the negligent or wilful acts or omissions of the Licensee, its employees, contractors, agents or representatives, provided that the Licensee shall have given Modal prompt written notice upon becoming aware of any such claim.  For the purpose of this clause “wilful” means any act done with the intent of causing the consequence to which the indemnity applies.
14.2	Intellectual Property rights Infringement:  Modal will indemnify the Licensee against, any claim, suit, action, loss, liability, damage, costs, expenses or proceeding (including all legal costs and expenses on a solicitor and own client basis) suffered or incurred by the Licensee arising out of or in connection with any claim that the supply, or the Licensee's use, of the SaaS, the Services, or any other materials provided by Modal under this Agreement constitutes a breach of any Intellectual Property rights of a third party ("IP Claim").
14.3	Procedure:
(a)	Each party will promptly notify the other party in writing on becoming aware of such IP Claim.
(b)	Unless otherwise required by the Licensee, Modal will control the conduct of the defence of any IP Claim and all negotiations for its settlement or compromise, but in all cases will:
i.	consult with the Licensee and keep the Licensee fully informed of such matters;
ii.	ensure that the Licensee's name and reputation are not adversely affected by any steps taken by or on behalf of Modal, including following any of the Licensee's directions relevant to the defence or settlement of the claim to minimise any adverse effect to the Licensee's business or reputation; and
(c)	obtain the Licensee's prior written approval to any proposed settlement or compromise.
14.4	Alternatives in event of Intellectual Property rights infringement: Should any Service become or, in Modal’s opinion, be likely to become the subject of a claim of infringement of a third party's Intellectual Property rights, Modal may, or the Licensee may request, in order to mitigate any damages suffered by the Licensee, that Modal:
(a)	obtain for the Licensee, at no cost to the Licensee, the right to continue to use the Service; or
(b)	replace or modify the Service, at no cost to the Licensee, to make it non-infringing, provided that the same function is performed by the replaced or modified property.
14.5	Termination:  Without prejudice to any other rights or remedies in this Agreement, the Licensee may terminate this Agreement if Modal is unable to remedy the intellectual property infringement in accordance with clause 14.4 within one month of a request from the Licensee, in which case Modal will refund the unused prepaid portion of subscription fees paid by the Licensee in relation to the affected Services.
14.6	Proceedings not required:  The indemnities referred to in this section 15 shall be granted whether or not legal proceedings are instituted, and, if such proceedings are instituted, irrespective of the means, manner, or nature of any settlement, compromise or determination. 
14.7	Survival:  The provisions of this section 14 shall survive termination of this Agreement.
15	Warranties
15.1	Warranty of authority: Each party warrants that it has necessary power and authority to enter into and perform this Agreement in accordance with its terms and that the performance of its obligations will neither conflict with any obligation or duty owed to any third party nor infringe the rights of any third party.  
15.2	Title:  Modal warrants that it or its suppliers shall have good title to the Services supplied under this Agreement and that all items that are intended to become the property of the Licensee pursuant to this Agreement will become the sole, exclusive and unencumbered property of the Licensee.
15.3	Service quality: Modal warrants that:
(a)	all Services provided by it under this Agreement will be performed with due care, diligence and skill in a competent and professional manner and in accordance with Best Industry Practice;
(b)	the SaaS will conform to, and will function in accordance with, the functionality set out in the Proposal and the Licensee's other use requirements for the SaaS; and
(c)	all information supplied to the Licensee under this Agreement, and all of Modal's representations to the Licensee under this Agreement (including Modal's representations regarding the functionality of the Services in the Proposal) are complete and accurate, not misleading or deceptive, and may be relied on by the Licensee in entering into and continuing with this Agreement.  
15.4	Personnel:  Modal warrants that all Services will be delivered by suitable Personnel who possess suitable skills, education and experience (including adequate knowledge of the background of the business requirements of the Licensee) and who shall perform all tasks assigned to them in an efficient and effective manner.
15.5	Intellectual Property:  Modal warrants that to the Licensee that the Software does not infringe the Intellectual Property rights of any third party.  Modal further warrants that the supply of, and the Licensee’s use of, the SaaS, Services and any other materials provided by Modal to the Licensee under this Agreement, will not infringe or impair in any way the Intellectual Property rights of any person, and that the SaaS, Services and any other materials provided by Modal to the Licensee under this Agreement are not subject to any third party Intellectual Property rights, unless Modal and the Licensee is licensed to use such Intellectual Property under the terms of clause 11.5.
15.6	Design:  Modal warrants that the design of the SaaS, and the selection and combination of the Services, will be suitable for the purpose of implementing and operating the SaaS and is suitable for the purpose for which the Licensee has subscribed to for its use.
15.7	Upgrade warranty:  Modal warrants that the design and implementation of the SaaS as accepted by the Licensee will be upgradeable in an efficient and cost-effective manner on each occasion when a Rectification, Enhancement, or other new version of the Software is released.  
15.8	Standard of Services:  Modal warrants that all Services to be delivered or rendered under this Agreement will be of the kind and quality designated in this Agreement and shall be suitable for the purpose for which the Licensee has subscribed to for its use.  Where the parties have agreed upon specific standards for Services to be performed or to be supplied, Modal warrants that those standards shall be observed and performed.
15.9	Defects:  Modal warrants that whilst the Licensee continues to subscribe for use of the Software, Modal will supply the Support Services listed in Schedule 4 and the Software will function in accordance with the functionality set out in the Proposal and the Licensee's other use requirements for the Software.  Modal shall, at its cost, rectify all Defects in the SaaS notified by the Licensee within the Service Levels response and resolution times as described in Schedule 4, and having regard to the severity categorisation of the Defect and its impact upon the Licensee’s business.
15.10	Non-compliance:  If either party becomes aware at any time of any non-compliance with the above warranties, then that party will immediately notify the other party.  Without limiting its liability for breach of the warranty, upon becoming aware of any non-compliance, Modal will work continuously to modify, repair or replace the relevant Deliverable to achieve full compliance with the above warranties.
16	Limitation of Liability
16.1	Indirect loss:  Except for liability arising under section 15 (Indemnities), neither party shall be liable to the other party for any loss of revenue or profits, or indirect, incidental, opportunity, special or consequential loss or damage of any kind whatsoever arising under or in connection with this Agreement.  
16.2	Aggregate liability of Modal:  Subject to clauses 16.1 and 16.4, the aggregate liability of Modal for all claims arising under or in connection with this Agreement, whether arising in contract, tort (including negligence) or otherwise, shall not exceed $1 million.
16.3	Aggregate liability of the Licensee:  Subject to clause 16.1, the aggregate liability of the Licensee for all claims arising under or in connection with this Agreement, whether arising in contract, tort (including negligence) or otherwise, shall not exceed $100,000. 
16.4	Unlimited liability:  Nothing in this clause 16 limits or excludes Modal's liability under this Agreement:
(a)	for deliberate breach or wilful default;
(b)	relating to a breach of clause 9 (Data protection and security) or clause 10 (Confidentiality); or
(c)	under clause 14.1 (Negligence or wilful acts) and under clause 14.2 (Intellectual Property rights infringement) in relation to IP Claims.  
17	Charges and Payment
17.1	Charges:  Subject to clause 17.5, the Licensee shall pay the Charges to Modal in accordance with the amounts in the Payment Schedule 5.  The Licensee will not be liable to pay any fees, expenses or disbursements that fall outside the scope of the criteria for payment set out in the Payment Schedule 5, other than those resulting from agreed Change Requests. 
17.2	Variation to Charges:  The Charges are fixed and will not be varied, except in the event of a Change Request agreed in writing by both parties or in accordance with the Payment Schedule 5.
17.3	Waiver of charges:  The Licensee shall not be obliged to pay any charges in respect of any Services performed by Modal:
(a)	otherwise than in accordance with this Agreement; or
(b)	in order to remedy default or deficiency in any Services.
17.4	Invoicing:  
(a)	Modal shall submit invoices for:
i.	the Charges payable in accordance with the amounts in the Payment Schedule 5 for the Annual Subscription; and
ii.	any other costs specified in the Payment Schedule 5 at the time they are incurred.
(b)	All invoices are to be emailed to the Licensee's Accounts Payable, quoting the Licensee's Purchase Order number and addressed to Accounts Payable
Email Address: To be provided
17.5	Payment: All payments are to be made on the 20th day of the month following the month of date of the invoice, except such amounts as are subject to a bona fide dispute.  In the event of a disputed item, the Licensee shall pay the undisputed portion of the invoice on time.  Disputes relating to payment shall be resolved in accordance with the dispute resolution process in section 24 (Disputes).  All payments are to be made by electronic banking to Modal’s designated bank account after the Licensee receives an invoice.
17.6	Charges:  Parties may negotiate and agree in writing a change in the Annual Subscription and Charges for Additional Services (Payments Schedule 5) for the SaaS each year to be effective on the anniversary of the Go-Live Date. 
17.7	Additional Use of the Software:  If the Licensee subscribes for additional use of the SaaS or Additional Services, Modal may seek a price review to adjust the Annual Subscription and, provided that the Licensee has first approved the price adjustment in writing by way of a variation to this Agreement, the Licensee will thereafter pay the adjusted Annual Subscription and the references in Services Schedule 2 to the use or utilisation of services, and the amount payable for the Annual Subscription, will be varied accordingly.
17.8	Taxes:  All Charges stated in this Agreement are inclusive of any taxes, duties, fees or other charges including, without limitation, withholding taxes and other Government charges excluding goods and services tax payable in accordance with the Goods and Services Tax Act 1985 (“GST”).  The Licensee will pay any GST at the rate applicable at the time of supply upon receipt of a valid GST invoice.
18	Records and Audit
18.1	Records:  Modal shall keep full, true and up to date records and documentation relating to the performance of Modal’s obligations under this Agreement, during the term of the Agreement and for 7 years after the term.  Modal shall maintain and keep secure such records and documentation in accordance with prudent business practice and all applicable laws (including the Public Records Act 2005), and provide records and documentation to the Licensee as requested (and in the format and as otherwise requested). Modal shall also comply with the Licensee’s return and destruction directions.
18.2	Audit:  The Licensee shall be entitled to review and audit the performance of the Agreement and/or Services from time to time.  The Licensee may engage third parties to conduct such reviews or audits.  Modal shall provide full co-operation and assistance to the persons conducting such reviews or audits and shall answer all enquiries and provide full information upon request relevant to the performance of this Agreement. The costs associated with such reviews or audits shall be borne by the Licensee, unless the audit discloses any material failure by Modal to comply with this Agreement or any overcharging by Modal, in which case the audit costs will be borne by Modal.
18.3	Implementation of audit findings:  Modal shall implement such reasonable recommendations and comply with such audit findings to the extent necessary to ensure that Modal’s obligations under this Agreement are performed and invoiced in accordance with this Agreement at no additional cost to the Licensee.
19	Performance Issues
19.1	Notification of issues:  Modal shall at all times keep the Licensee fully informed of all important issues associated with the Services and, in particular, forthwith notify to the Licensee’s Designated Representative any problems or anticipated problems of which it becomes aware that are likely to impact upon achievement of the Services.  Where such problems arise Modal shall forward proposals for consideration by the Licensee as to the manner in which the problems will be resolved.
19.2	Unresolved issues:  Each party shall immediately notify the Designated Representative of the other party in writing if it considers there is an unresolved issue associated with the performance of the Services.  The Designated Representatives shall meet within 2 Working Days after receipt of such notification to discuss the problem and will each use their best efforts to find a resolution of the problem that recognises the reasonable interests of each party.  The parties will document and implement such resolution.  
19.3	Failure of Designated Representatives to agree:  If the Designated Representatives are unable to find a resolution of any issue within 5 Working Days of the issue being referred to them either party may thereafter refer the dispute for resolution to the Chief Executive of Modal or their nominee and the Licensee’s nominee.
19.4	Failure to agree:  If the Chief Executive of Modal or their nominee and the Licensee’s nominee cannot agree on the action required for the resolution of a dispute within 10 Working Days of the issue being referred to them, or such other time as they shall agree, the mediation procedure in clause 23.4 may be invoked by either party.
20	Termination 
20.1	Termination by the Licensee for breach:   Without prejudice to any other rights the Licensee may have under this Agreement or at law, the Licensee may terminate this Agreement immediately by notice in writing if:
(a)	Modal has committed a breach of its obligations under this Agreement:
i.	which cannot be remedied by Modal; or
ii.	if the breach can be remedied, but Modal fails to remedy the breach within 30 days of the Licensee giving written notice requiring Modal to remedy that breach.
20.2	Specific breaches:  Without limiting clause 20.1, Modal shall be in breach and the Licensee may terminate this Agreement immediately upon written notice to Modal if:
(a)	Modal assigns its rights or obligations under this Agreement otherwise than in accordance with clause 27.2; or
(b)	Modal becomes or threatens to become or is in jeopardy of becoming subject to any form of insolvency administration including any resolution, procedure or proceedings relating to its liquidation, inability to pay its debts as they fall due, insolvency or for the appointment of a receiver, receiver and manager, liquidator, provisional liquidator, statutory manager or similar officer or if Modal makes an assignment for the benefit of its creditors.
20.3	Termination by Modal for Licensee’s payment breach:  Modal may terminate this Agreement by giving to the Licensee notice in writing if:
(a)	the Licensee fails to pay any Charges, that are not the subject of a dispute between the parties, by the due date (a Payment Breach);
(b)	Modal gives the Licensee written notice (copied to the Licensee’s chief financial officer) specifying the Payment Breach and requiring payment within 30 Working Days of receipt of the written notice; and
(c)	the Payment Breach is not remedied in accordance with clause 20.3(b), and Modal gives the Licensee further written notice (copied to the Licensee’s chief financial officer) requiring payment within 30 Working Days of receiving notice under this clause 20.3(c) and the Licensee fails to remedy the Payment Breach within this further notice period.
Subject to the above, Modal may not terminate this Agreement for any reason, including if the Licensee breaches this Agreement.  To avoid doubt, Modal may not terminate or cancel this Agreement under any law, including the Contract and Commercial Law Act 2017.  In the event of a breach of this Agreement by the Licensee, Modal may exercise its other rights and remedies to the extant provided by law, including seeking to recover damages from the Licensee, but shall continue to fully perform its obligations under this Agreement.
20.4	Termination for convenience:  The Licensee may terminate this Agreement at any time after the completion of the Initial Term on at least 90 days' prior written notice to Modal. Prepaid annual subscription fees will not be refunded.
20.5	Partial termination:  Where the Licensee has a right to terminate this Agreement, the Licensee may at its sole discretion and to the extent practicable, instead of termination of this Agreement in full, terminate any affected Service.
20.6	Consequences of termination:  If this Agreement is terminated:
(a)	for any reason or otherwise expires, the Licensee may at its option take one or more of the following actions:
i.	require Modal to deliver to the Licensee all property of the Licensee in the possession or control of Modal; and
ii.	establish a plan for the Licensee Data to be extracted by Modal from the SaaS and to be provided to the Licensee in an agreed format. The cost to provide this service shall be based on the Additional Services charges listed in Payments Schedule 5; and
iii.	require deletion of the Licensee Data from the SaaS upon written confirmation from the Licensee to Modal that it no longer requires access to the Licensee Data in the SaaS and it is to be deleted; 
iv.	require Modal to undertake the Disengagement Services in accordance with clause 20.4; and
v.	recover any sums paid to Modal on any account or for any Services which have not been fulfilled or performed in accordance with this Agreement together with interest on such sums calculated on a daily basis at the overdraft rate charged by the Licensee’s bank plus 2% per annum from the date those sums were paid until the date of refund;
(b)	for breach by Modal, the Licensee may in addition:
i.	recover from Modal the amount of loss or damages sustained by the Licensee as a result of termination; 
ii.	recover from Modal a pro-rata amount of any Annual Subscription paid in advance, calculated based on the period remaining in such annual period as at the effective date of termination; and
iii.	pursue any additional or alternative remedies provided by law;
(c)	for any reason or otherwise expires, except as otherwise provided in clause 20.8 the parties shall be regarded as discharged from any further obligation under this Agreement.
20.7	Consequences of termination by Modal:   If Modal terminates this Agreement under clause 20.3 then Modal may at its option take one or more of the following actions:
(a)	recover any amounts owing to Modal under this Agreement before such termination, which amounts will immediately become due and payable; and
(b)	pursue any additional or alternative remedies provided by law.
20.8	Reservation of rights:  Termination or expiry of this Agreement will not affect:
(a)	any rights of a party against the other party which accrued up to and including expiry or termination; or
(b)	the provisions of this Agreement which by their nature survive termination, namely, section 10 (Confidential Information), section 11 (Intellectual Property), section 11 (Indemnities), section 16 (Limitation of Liability), section 18 (Records and Audit), this section 20 (Termination), section 23 (Disputes), and section 27 (General).
20.9	Termination without prejudice to other remedies:  Termination for breach by the Licensee under the provisions of this section 20 shall be without prejudice to any rights or remedies available to the Licensee whether under this Agreement or at law or in equity.  The election of one remedy shall not exclude the election of another.
20.10	Disengagement Services:
(a)	On the Licensee's request, and in any case within 10 Business Days of Modal's receipt of such request from the Licensee, Modal will prepare a Disengagement Plan, detailing the Disengagement Services that will be required to end this Agreement in a smooth and orderly manner, including to assist with the Licensee's transition to an alternative provider or to the Licensee.  The Disengagement Plan will include the scope of the Disengagement Services, a timeline and schedule for each of the proposed Disengagement Services (including the duration), and the fees Modal will charge for its performance of the Disengagement Services (which, where applicable, will be calculated using the Additional Services charges listed in Payments Schedule 5).
(b)	For the purposes of any Disengagement Plan, the Disengagement Services the Licensee may require Modal to provide may include:
i.	the continued performance of the Services to the extent required by the Licensee.  The relevant terms of this Agreement continue to apply to the continued performance of the Services in accordance with this clause (and any charges for such continued provision must be determined based on the existing Charges in the Agreement);
ii.	answering questions and providing information requested by the Licensee;
iii.	the transfer of Licensee Data and returning to the Licensee any of its other tangible or intangible property (including its Confidential Information); and
iv.	providing any additional Disengagement Services as agreed by the parties in the Disengagement Plan. 
(c)	Upon the Licensee's receipt of the Disengagement Plan, the Licensee will review and if the Licensee considers the plan to be acceptable, approve the Disengagement Plan.  Modal must incorporate any changes the Licensee reasonably requires in order to obtain such approval from the Licensee.
(d)	Upon expiry or termination of this Agreement, or the Licensee otherwise giving Modal at least 20 Business Days prior written notice to Modal, Modal must provide the Disengagement Services set out in the Disengagement Plan, and each party will otherwise give effect to, implement and comply with its obligations under the Disengagement Plan, until the earlier of:
i.	the Licensee notifying Modal that its obligations under the Disengagement Plan have been successfully completed; and
ii.	the end date specified in the Disengagement Plan.
(e)	The Disengagement Services will be provided at the Licensee's cost (subject to the terms outlined in this clause 20.10). 
21	Delay
21.1	Advice of delays:  Modal recognises and acknowledges that the timely performance of Modal’s responsibilities under this Agreement is of critical importance to the Licensee’s business.  If Modal is of the opinion at any time that it will not be able to perform any Service or activity within required timeframes, Modal must notify the Designated Representative of the Licensee in writing immediately.
21.2	Modal’s responsibility:  Modal shall be responsible and accountable to the Licensee for any reasonable additional fees, costs, expenses and disbursements that may be incurred by the Licensee as a result of Modal’s delay in providing or failing to provide the agreed level of Services, resources or co-operation as defined in Services Schedule 2, except to the extent that such delay has been caused by the failure of the Licensee upon reasonable request to provide essential resources or information or to make necessary decisions.
21.3	Other remedies reserved:  Nothing in this section shall prevent the Licensee from exercising all other rights it may have against Modal in relation to any failure by Modal to perform its obligations under this Agreement.
22	Force majeure
22.1	Each party ("Affected Party") is excused from performance of this Agreement caused by, and shall not be liable for any delay in whole or in part caused by, the occurrence of any contingency beyond the reasonable control of such Affected Party, and that could not have been mitigated by the exercise of business continuity or other reasonable practices (a “Force Majeure Event”), provided that the Affected Party notifies the other party of the nature and expected duration of the Force Majeure Event and continues to perform any obligations not impacted by the Force Majeure Event.  The Licensee shall not in any event be liable to pay for any goods or services not supplied in accordance with the requirements of this Agreement as the result of a Force Majeure Event.  The Licensee may, at its discretion, terminate this Agreement without liability to Modal if Modal is prevented from performing its obligations for a period of more than 45 days.  
23	Disputes
23.1	Good Faith:  The parties undertake to use all reasonable efforts in good faith to resolve any dispute which arises between them in connection with this Agreement.
23.2	Notice of Dispute:  A party will as soon as reasonably practicable give the other a notice of any dispute in connection with Agreement.
23.3	Internal Dispute Resolution:  Any dispute will be referred:
(a)	initially to the Designated Representative of Modal and the Designated Representative of the Licensee, who will endeavour to resolve the dispute within 10 Working Days of the giving of the notice; and
(b)	if the Designated Representative of Modal and the Designated Representative of the Licensee do not resolve the dispute within the time referred to in clause 23.3(a), to the Licensee’s nominee and the Chief Executive of Modal or their nominee, who will endeavour to resolve the dispute within a further 10 Working Days.
23.4	Mediation:  If, following the relevant internal dispute resolution procedure set out in clause 23.3, the parties fail to resolve the dispute, then the parties will try to settle their dispute by mediation before resorting to litigation.  Either party may initiate mediation by giving written notice to the other party.  The mediator should be agreed by the parties, but if the parties cannot agree on one within 5 Working Days after the mediation has been initiated, then the mediator shall be selected by the Resolution Institute or its successor.  If the dispute is not resolved within 25 Working Days of the dispute being referred to mediation, either party may elect to refer the dispute to arbitration in accordance with clause 23.5.
23.5	Arbitration:  Any dispute referred to arbitration pursuant to clause 23.4 shall be referred to and finally resolved by arbitration by a sole arbitrator in accordance with this clause and the Arbitration Act 1996.  The arbitrator shall be appointed by the parties but if the parties cannot agree on one within 5 Working Days after the dispute has been initiated, then the arbitrator shall be selected by the Resolution Institute or its successor.  The arbitration will commence no later than 25 Working Days from the date the dispute was referred to arbitration unless otherwise agreed by the parties.
23.6	Venue:  Any dispute resolution procedures shall be held in Wellington, New Zealand, unless otherwise agreed in writing.
24	Health, safety and security
24.1	Health, safety and security:  Modal must
(a)	consult, cooperate and coordinate with the Licensee regarding the parties’ overlapping obligations under, and what is required from Modal to assist the Licensee to comply with health and safety at work regulations as it relates to or affects this Agreement; 
(b)	comply with, and ensure that its Personnel comply with, their obligations under health, safety and security regulations as it relates to or affects this Agreement; 
(c)	comply with all of the Licensee's policies and reasonable directions relating to health, safety, and security regulations; and 
(d)	report any of the following that applies to Modal or the Licensee, or relates to or affects this Agreement: 
i.	any notifiable injury, illness, incident or event, or any notice issued under any health and safety legislation; and 
ii.	any Protective Security Incident.
25	Insurance
25.1	Modal must ensure its risks of doing business are adequately covered, whether by insurance or otherwise.  Modal must provide evidence that it is complying with its obligations under this clause within 10 Business Days of any request from the Licensee (including providing a certificate confirming the nature of the insurance cover and proving that each policy is current).
25.2	Modal must have the following minimum levels of insurance, taken out with a reputable insurer (being an insurer who, from the Commencement Date to the date of expiry or termination of this Agreement, maintains a rating of A or more as determined by Standard and Poor's) for the term of this Agreement:
(a)	public liability insurance (Personal Injury & Property Damage) including product liability, for a sum of not less than $5,000,000 any one occurrence;
(b)	professional indemnity insurance (Errors & Omissions), for a sum of not less than $1,000,000 any one occurrence, including one reinstatement;
26	Business Continuity
26.1	Modal will maintain a plan setting out the actions it will take to maintain and/or restore the SaaS and the Services in the event of a Disaster ("Business Continuity Plan").  The Business Continuity Plan shall identify the threats to the provision of the Services and the measures to eliminate, mitigate or manage those threats.  The Business Continuity Plan must be reviewed regularly, and no less frequently than annually, and provided to the Licensee upon request.
26.2	Without limiting Modal's other obligations under this Agreement, if a Disaster affects the provision or receipt of the whole or any part of the Services:
(a)	Modal will put into effect the Business Continuity Plan; and
(b)	Modal will continue to provide, and the Licensee will continue to receive, the Services which are not affected by the Disaster in accordance with this Agreement. 
27	General
27.1	Governing Law:  This Agreement is subject to the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts. In addition to any other rights and remedies available to Modal or the Licensee for breach of this Agreement, each party will be entitled to enforcement by court injunction or restraining order.
27.2	Assignment and sub-contracting:  Other than as specifically permitted in this Agreement, Modal shall not, without the previous written consent of the Licensee, assign, subcontract, pledge or transfer the whole or any part of its rights, duties or obligations under this Agreement. Modal will remain liable to the Licensee for all acts or omissions of each subcontractor as if they were the acts or omissions of Modal.  
27.3	Independent contractors:  The parties to this Agreement shall act as independent contractors in the performance of their obligations under this Agreement.  Neither party shall act as agent for, or partner of, the other party for any purpose whatsoever.
27.4	Counterparts: This Agreement may be executed by the parties in counterparts, each of which will be deemed to be an original and all of which will constitute one and the same agreement.
27.5	Entire Agreement: This Agreement constitutes the entire agreement between the parties and supersedes all previous negotiations, commitments and/or writings, provided that, where a confidentiality agreement has previously been signed by the parties, that confidentiality agreement will continue in full force and effect, except to the extent of any inconsistency with this Agreement. 
27.6	Amendments:  No alteration or amendment of this Agreement will be binding unless it is in writing and executed by both parties.
27.7	Notices: Any notice to be given in terms of this Agreement must be made in writing or email sent to the registered office or principal place of business of the other party or to such other address as may be notified by either party to the other from time to time.  Any communication by email transmission will be deemed to be received when transmitted to the correct email address of the recipient, provided that the sender does not receive a response indicating that the message has not been received. Any other communication in writing will be deemed to be received when left at the specified address of the recipient or on the third day following the date of posting. The initial email and postal addresses for notices of Modal and the Licensee are set out in Items 1 and 2 of Contact Details Schedule 1.
27.8	Severability:  If any part of any provision of this Agreement shall be invalid or unenforceable under applicable law, such part shall be deemed to be restated to reflect, as nearly as possible, the original intentions of both of the parties in accordance with applicable law, and the remainder of the Agreement shall remain in full force and effect.
27.9	No Waiver:  No waiver of any breach of this Agreement will be deemed to be a waiver of any other or any subsequent breach.  The failure of any party to enforce any provision of this Agreement will not be interpreted as a waiver of the provision.