PLEXURE STANDARD TERMS & CONDITIONS
(the “TOS”)

BY ACCESSING OR USING THE SERVICE OR THE SOFTWARE, OR BY SIGNING COMMERCIAL TERMS REFERENCING THE TOS (the “Agreement”), YOU (“You” or “Customer”) AGREE TO THE TERMS OF THIS TOS. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON, COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS.

The TOS apply between Customer and Plexure Limited, a New Zealand company, having its principal place of business at 104 Quay Street, Auckland 1010, New Zealand (“Plexure”).

1. Interpretation

In this TOS:

API means the interface provided by the Software which can be used to access the Service;
Customer Data means digital information transferred to or from the APIs by the App or other Customer systems, and processed or stored by the Software;
Commencement Date means the date of execution of the Agreement referencing this TOS, or the date the Software or the Service is first accessed by Customer;
Information means all information (whether on computer disk, visual presentation or otherwise), data, documents, material relating to the business or affairs of either party made available to, or for the benefit of the other party in connection with this TOS;
Initial Term means a period of 12 months from the Commencement Date;
Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral rights, right in a design, know-how, confidential information and all or any other intellectual or industrial property rights, whether or not registered;
Personal Data means data which uniquely identifies a User;
Service means the services provided by Plexure to Customer;
Software means Plexure’s software solution which implements the Service;
Support Services means the support provided by Plexure to assist Customer in resolving Problems;

Appointment

Right to Access and Use Service. Subject to the terms of this TOS, Plexure grants Customer a royalty-free, nonexclusive, nontransferable, limited term right to use the Service in the agreed territory for the volume licensed, solely for Customer’s business use for the agreed term. If Customer enters into a contract in which a third party accesses the APIs. ("Accessing Party"), Customer may transfer all its rights to use the Software to such Accessing Party, provided that (a) the Accessing Party agrees to comply with this Agreement, and (c) Customer provides Plexure with written notice that an Accessing Party will be using the APIs on Customer’s behalf.

The licence granted under this clause 2.1 will commence on the Commencement Date and will continue until terminated in accordance with clause 9.

Rights and Duties of Customer

Customer acknowledges that:

1. the operation and availability of the system used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Service; and
2. Plexure is not in any way responsible for any interference with or prevention of Customer’s or Consumers’ access and/or use of the Service.
3. Customer is responsible for all activity occurring from use of the Service. Customer will provide Plexure with all information and assistance required to supply the Software or Service or enable Customer’s use of the same. Customer will immediately notify Plexure of any: (i) unauthorized account use or other suspected security breach, and; (ii) unauthorized use, copying or distribution of Software, accompanying documentation or Customer Data.
4. Customer must obtain all necessary rights and permissions from Users. Customer represents and warrants that: (i) Customer has the legal rights and applicable consents to provide Customer Data to Plexure, and (ii) Customer complies with all applicable laws for processing and transferring Customer Data to Plexure. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data submitted via the APIs. The Service relies on Customer Data as supplied by Customer, and Plexure is not liable for the content of Customer Data. Plexure does not assume any duty or obligation to correct or modify Customer Data.

With respect to Personal Data and other user-related data, Customer agrees and undertakes:

1. To be responsible for administration of Customer’s own staff and/or sub-contractors access to, and use of, the Service and the Personal Data stored;
2. to comply with the requirements of applicable laws relating to data protection and data privacy in connection with Customer’s access to, and use of, the Service.
3. The Service collects data regarding the behavior and usage patterns of Users (“User Data”). Other than required device information such as make, model, resolution etc, Customer is in control of the User Data to be collected, stored and analyzed via the Service.
4. Customer is responsible for obtaining all the appropriate permissions from Users to allow Plexure (and our third party service providers) to collect, store and use the User Data as outlined herein. Customer agrees to abide by an appropriate privacy policy relating to the collection and use of information from Users. Customer must post a privacy policy and that policy must provide notice of your and our use of User Data. Customer will comply with all applicable laws related to the provision of, access to and information collected by Customer related to your Users. You are also responsible for ensuring that your use of the Service complies with any service terms of your third party service- and platform-providers (such as Facebook, Apple, Google Play etc.). We are not required to and will not store or maintain User Data collected in breach of any relevant data protection or other applicable laws.
5. The Service is provided on a software-as-a-service, hosted basis.  As such, our third party hosting provider (currently Microsoft) will have access to the same data, including User Data, as we do.  Our hosting provider is only permitted to process this data for the purposes of providing hosting services to us. 

Rights and Duties of Plexure

With respect to Personal Data, Plexure shall:

1. Process and disclose such information only for the purposes expressly stated in this TOS unless, and to the extent, that Customer provides written instructions regarding additional purposes.
2. Not disclose such information to any person or entity other than individuals needing access to the information in order to perform the Services; unless required by law or valid legal or regulatory process as provided below, without obtaining written instructions from Customer.
3. Plexure may disclose the Personal Data in whole or in part to subcontractors provided that Plexure enters into written TOS with such subcontractors that impose restrictions on use and disclosure that are at least as restrictive as the obligations accepted by Plexure under this TOS.
4. Not knowingly place Customer in breach of any requirements of law or other valid legal or regulatory process.
5. Promptly notify Customer of:
1. any legally-binding request for disclosure of the Personal Data unless such notification is otherwise prohibited by law, such as a prohibition under criminal law, to preserve the confidentiality of a law enforcement investigation;
2. any accidental or unauthorized access; or
3. any request received from or on behalf of Consumers, without responding to that request unless Plexure has been authorized in writing to do so by Customer.

Plexure acknowledges that Personal Data, if any, is provided or made available to Plexure for the purpose of enabling Plexure to perform the Service and under no circumstances will become property of Plexure.

Plexure further agrees and undertakes:

1. to comply with the requirements of applicable laws relating to data protection and data privacy in connection with the Service; and
2. to maintain technical and organizational processes and procedures that ensure a level of security appropriate to the risks represented by processing and the nature of Personal Data to be protected to safeguard all Personal Data received from Customer and/or Consumers from and against any accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access.

Payment

Customer will pay each invoice rendered by Plexure within 20 days following the date of the invoice.

If Customer defaults in payment of any amount payable under this TOS Plexure may (without prejudice to its other rights) either charge interest on the unpaid amount from the due date until the date of actual payment at 2% per annum over the base overdraft facility rate charged by Plexure’s bankers from time to time; and/or cease the provision of the Services without liability to Customer.

Payment under this TOS must be made without any deduction whatsoever. If Customer is required by law to deduct or withhold taxes or charges from the amounts due to Plexure under this TOS, Customer will ensure that the amount due to Plexure is increased so that the payment actually made to Plexure equals the amount due to Plexure as if no such taxes or charges had been imposed.

Intellectual Property and confidentiality

Customer acknowledges that all Intellectual Property Rights in the Service and the Software (including any modifications) belong to Plexure or its licensors. 

Customer will not copy, translate, reverse-engineer or modify any aspect of the Service or the Software other than in accordance with the express terms of this TOS.

Each party will keep confidential the Information until it is published by the other party or is generally known otherwise than by a breach of this TOS. 

Warranty

Plexure warrants that:

1. it has the power and authority to grant the rights under this TOS;
2. it has all rights, titles, licenses, interests and property necessary to lawfully perform the Service and to the best of its knowledge the Service does not infringe the Intellectual Property Rights of any third party. 

Plexure warrants that all Customer Data will be stored by Plexure or its subcontractors and that such Customer Data will not be corrupted or otherwise changed by Plexure in any manner, other than such format changes toCustomer Data as are required in order to process the Customer Data by the Software. Plexure further warrants that the Customer Data can be retrieved from the Software in such format as provided at any time when requested by Customer, at Customer’s cost.

Plexure warrants that the Service will function substantially in accordance with its published specifications but Customer acknowledges that it may have minor or inherent defects. As Plexure’s sole responsibility and Customer’s sole remedy in the event of a breach of this warranty, Plexure will provide reasonable programming and remedial services to correct documented code errors caused by a defect in the Service. Customer acknowledges that Plexure accepts no liability, and is not in any way responsible for, any interference in Customer’s access to the Service caused by these defects.

Plexure will not be liable for a breach of the warranty to the extent of any non-conformance which is caused by use of the Service contrary to the Documentation and any other Plexure instructions, or modification or alteration of the Service by any party other than Plexure or Plexure’s duly authorised contractors or agents.

Except as expressly provided in this TOS all representations or warranties (statutory express or implied), except any which may not lawfully be excluded, are expressly excluded, including without prejudice to the generality of the foregoing, the implied warranties of merchantability and fitness for a particular purpose.

We warrant that any Professional Services will be provided in a professional and workmanlike manner.  The provision of Professional Services by us and the results of the Professional Services are provided “as is,” without warranty of any kind, including (without limitation) any warranty of title, merchantability, fitness for a particular purpose and non-infringement.  Descriptions or specifications of deliverables shall constitute project objectives and not express warranties.

Indemnities and Limitation of Liability

Plexure will indemnify Customer against all costs (including the cost of enforcement), expenses, liabilities (including any tax liability), injuries, losses, damages, claims, demands, legal costs (on a full indemnity basis) and judgments which Customer may incur as a consequence of any allegation or establishment that the use or performance of the Software or the Service furnished by Plexure under this Agreementconstitutes an infringement of any Intellectual Property Rights.

Customer will indemnify Plexure against all costs (including the cost of enforcement), expenses, liabilities (including any tax liability), injuries, losses, damages, claims, demands, legal costs (on a full indemnity basis) and judgments which Plexure may incur as a consequence of a breach by Customer of its obligations under this Agreement.

Except as expressly provided in this TOS, Plexure will not be liable to Customer or any other person arising out of the supply of the Service or the implementation, maintenance or use of the Service.

In no circumstances will Plexure be liable under the law of tort, contract or otherwise for any loss of profits, loss of revenue, loss of data, or any indirect or consequential loss or damage arising out of this TOS.

Neither party‘s liability to the other party arising out of all claims for damages under this TOS will exceed in aggregate the total Fees paid to Plexure by the Customer during the six months before the event which gave rise to the claim.

Plexure will not be in default by reason of any failure to perform its obligations under this TOS caused by any act or any event beyond Plexure ‘s control Plexure will however, endeavour to resume its obligations under this TOS as soon as possible.

Disputes

If a dispute arises in relation to this TOS (the Dispute) neither party may commence any legal proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause, except where the party seeks urgent interlocutory relief.

The party claiming the Dispute has arisen in relation to this TOS must give written notice to the other party specifying the nature of the Dispute.

On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation, mediation or other informal means.

If the Dispute is not resolved within 14 days of the notice given under clause 8.2 (or within such further period agreed in writing by the parties) either party may, on giving written notice to the other, require the Dispute to be determined by the arbitration of a single arbitrator.

Professional Services

Professional Services will be delivered according to mutually agreed written Statements of Work attached to Agreed Commercial Terms.  Your requirements may vary during the course of a Statement of Work and, accordingly, review and revision of Statements of Work may be required.  Any such revision and review may result in additional charges.  All changes to existing Statements of Work will be in writing or agreed to expressly via email.

All work is performed on a time and materials basis, as set forth on a Statement of Work.  Any scheduled performance dates and times are estimates only.  It is understood between the parties that delay in performance of an assigned task under a Statement of Work by the assigned party shall give rise to the right in the other party to push back the directly-related and dependent events of that Statement of Work to reasonably accommodate for the delay.

If Plexure is performing Services at Customer’s site, Plexure consultants will abide by all reasonable security, health and safety and other policies of Customer notified to Plexure in writing.

Plexure will own all IPR developed or created by us during the course of performing a Statement of Work, including but not limited to the following (collectively “Plexure Materials”): (a) any material or software developed by or on behalf of Plexure; (b) all Plexure proprietary software and modifications, alterations, additions or derivative works thereto; and (c) any knowledge, techniques, tools or know-how of general applicability created or enhanced. “IPR” means copyrights, trade and service marks, trade names, rights in logos and get-up, inventions, confidential information, trade secrets and know-how, registered designs, design rights, patents, utility models, semi-conductor topographies, all rights of whatsoever nature in computer software and data, database rights, all rights of privacy and all intangible rights and privileges of a nature similar or allied to any of the foregoing, in every case in any part of the world and whether or not registered, and including all granted registrations and all applications for registration in respect of any of the same. 

If any Plexure Materials are delivered to you as part of the Professional Services, we agree that you will have a royalty-free, non-exclusive worldwide license to use, copy, modify and distribute internally such Plexure Materials within your facilities solely for the use in conjunction with the applications with which Customer uses the Professional Services. 

Access to the Software

When you register an application that uses Plexure’s API, you agree to keep any access keys encrypted and secure and safe from compromise.

Before you engage with our non-production environments you must submit a test plan to Plexure for approval by Plexure setting out at minimum the dates you plan to carry out testing, the support you require from Plexure. You agree you will never run load testing in production nor non-production without our prior written approval, nor do anything else to put any of our systems at risk.

Before you engage with our production environments you shall submit the test results and a plan to put your systems in production for approval by Plexure. At a minimum this is to include the requested dates for production cut over, schedule for cut over of services and systems, check processes to ensure all proceed correctly, roll back plans should problems occur and Plexure resources required to support. Plexure retains the right to recommend alternative dates and corrections to the plan to ensure stability of our systems and acceptable user experience.

Term and Termination

The Agreement will commence on the Commencement Date and will continue  for the Initial Term.  Following the Initial Term, unless it is terminated in accordance with this clause, this Agreement will be automatically renewed for successive 1 year periods (“Renewal Term”).

Following the Initial Term, either party may terminate this Agreement on giving to the other not less than 3 months’ prior written notice before the expiration of the current Renewal Term.

Either party may terminate this Agreement immediately on giving written notice to the other if the other party:

1. breaches any of its obligations under this TOS and (if the breach is capable of remedy) fails to remedy the breach within 14 days after receiving notice requiring it to be remedied; or
2. goes into liquidation or has a receiver or statutory manager appointed over any of its assets or becomes insolvent, ceases to carry on its business or makes any arrangement with its creditors.

On termination of this Agreement:

1. Customer will cease to use Plexure’s and its licensors’ Intellectual Property Rights;
2. Customer will deliver to Plexure all Software, Information and all Documentation and other materials relating in any way to the Service;
3. Plexure will deliver to Customer all Information, Documentation and other materials received from Customer relating in any way to the Service;
4. Customer will cease to have any further rights under this Agreement.

Clauses 5, 7 and 12 will survive termination of this Agreement.

General

This TOS will be governed by the laws of New Zealand, and the parties agree to accept the non-exclusive jurisdiction of the New Zealand court.