0800 CONVERGENCE or +64 9 525 2611 info@convergence.co.nz

TERMS AND CONDITIONS

Software as a Services [SaaS] Terms for CODI v1.1 [updated 30 May, 2017]

SECTION A: AGREEMENT AND KEY DETAILS

1. AGREEMENT

1.1 Unless otherwise expressly otherwise agreed between Convergence Limited (“Convergence”) and a client (“Customer”) these terms will apply to the provision of the CODI [Convergence Optimised Data Integration], previously also known as WebGate API, Software as a Service [SaaS] offering.

1.2 For the avoidance of doubt, these terms do not apply to software development, IT support or traditional IT services where Convergence and the Customer may have entered into separate agreements dealing with those subject matters.

1.3 By making available the CODI SaaS Service Convergence agrees to provide and by using the CODI SaaS Service the Customer agrees to buy [i.e. subscribe to] the CODI SaaS Service on these terms.

1.4 Convergence may modify or amend these terms on 30 days’ prior written notice.

2. KEY DETAILS

2.1 The Start Date of this Agreement shall be the date on which the Customer commences the use of the CODI SaaS Service for anything other than testing via any developer account/login Convergence may make available.

2.2 The End Date shall be determined by the date the Customer discontinues the use of the CODI SaaS offering or the end of the Minimum Term, whichever is the later.

2.3 The CODI SaaS Service is the provision of a cloud-based data integration and synchronisation service, which utilises the CODI Core Engine as well as one or multiple Connectors. Connectors facilitate the programmatic import/export of data in and out of specific software applications and/or website eCommerce platforms for a predetermined set of fields/data types.

2.4 Related Services consist of up to two hours of services for the initial setup a new CODI account and provision of login/access credentials.

2.5 Subscription Fees and Payment shall be facilitated as follows: Convergence will issue monthly invoices at least 3 business days before payment is due. Payment of any agreed Subscription Fees are due on the first business day of each month in advance.

2.6 For the avoidance of doubt, any additional services over and above the Related Services may, at Convergence’s discretion, be charged at Convergence’s standard hourly rate.

2.7 Email address for notice: codi@convergence.co.nz

2.8 Website: www.convergence.co.nz

SECTION B: GENERAL TERMS

3. INTERPRETATION

3.1 Agreement: Section A [Agreement and Key Details] and Section B [General Terms]

3.2 CODI [Convergence Optimised Data Integration] Software: The software owned by Convergence [and its licensors] that is used to provide the SaaS Service.

3.3 Confidential Information: The terms of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement. Intellectual Property owned by Convergence [or its licensors], including the CODI Software, is the Supplier’s Confidential Information. The Data is the Client’s Confidential Information.

3.4 Data: All data, content and information [including Personal Information] owned, held, used or created by or on behalf of the Customer that is stored using, or inputted into, the Services.

3.5 End Date: The end date set out in the Key Details.

3.6 Fees: The fees set out in the Key Details, as updated from time to time in accordance with clause 8.4.

3.7 Force Majeure: An event that is beyond the reasonable control of a party, excluding: – an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or – a lack of funds for any reason.

3.8 Intellectual Property Rights: Copyright and all worldwide rights conferred under statute, common law or equity relating to inventions [including patents], registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know how and all other rights resulting from intellectual activity. Intellectual Property​​ has a consistent meaning and includes any enhancement, modification or derivative work of the Intellectual Property.

3.9 Key Details: The Agreement specific details set out in Section A of the Agreement.

3.10 Objectionable includes being objectionable, defamatory, obscene, harassing, threatening or unlawful in any way.

3.11 Payment Terms are the payment terms set out in the Key Details.

3.12 Personal Information has the meaning given in the Privacy Act 1993.

3.13 Related Services: Any service described in the Key Details and any further services that Convergence agrees to provide to the customer under this Agreement.

3.14 SaaS Service: The service having the core functionality described in the Key Details and as described in more detail on the Website, as the Website is updated from time to time.

3.15 Services: The SaaS Service and any Related Service.

3.16 Start Date: The start date of the Agreement set out in the Key Details.

3.17 Underlying Systems: The CODI Software, IT solutions, systems and networks [including software and hardware] used to provide the Services, including any third party solutions, systems and networks.

3.18 Website: The Internet site at the domain set out in the Key Details, or such other site notified to the Customer by Convergence.

3.19 Year: A 12-month period starting on the Start Date or the anniversary of that date.

4. INTERPRETATION: IN THE AGREEMENT

4.1 Clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;

4.2 Words in the singular include the plural and vice versa;

4.3 A reference to: i. a ​party​​ to the Agreement includes that party’s permitted assigns; ii. ​personnel​​ includes officers, employees, contractors and agents, but a reference to the Customer’s personnel does not include Convergence; iii. a ​person​​ includes an individual, a body corporate, an association of persons [whether corporate or not], a trust, a government department, or any other entity; iv. ​including​​ and similar words do not imply any limit; v. a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them;

4.4 No term of the Agreement is to be construed against a party because the term was first proposed or drafted by that party; and

4.5 If there is any conflict between Section B and Section A of the Agreement, Section B prevails unless expressly stated otherwise in Section A.

5. SERVICES

5.1 General:​​ Convergence must use best efforts to provide the Services: a. in accordance with the Agreement and New Zealand law; b. exercising reasonable care, skill and diligence; and c. using suitably skilled, experienced and qualified personnel.

5.2 Non-exclusive:​​ Convergence’s provision of the Services to the Customer is non-exclusive. Nothing in the Agreement prevents Convergence from providing the Services to any other person.

5.3 Availability: a. Convergence will use reasonable efforts to ensure the SaaS Service is available on a 24/7 basis. However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. Convergence will use reasonable efforts to publish on the Website advance details of any unavailability. b. Through the use of web services and APIs, the SaaS Service interoperates with a range of third party service features. Convergence does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, Convergence may cease to make available that feature to the Customer. For the avoidance of doubt, if Convergence exercises its right to cease the availability of a third party feature, the Customer is not entitled to any refund of any fees already paid. If, however, the non-availability of the third party feature renders the SaaS Service entirely unusable for the Customer, Convergence will consider the Customer’s application for early termination in accordance with clause 13.3.

5.4 Underlying Systems:​​ Convergence is responsible for procuring all Underlying Systems reasonably required for it to provide the SaaS Service in accordance with the Agreement.

5.5 Additional Related Services: a. Convergence may, from time to time, make available additional services to supplement the SaaS Service. b. At the request of the Customer and subject to the Customer paying the applicable Fees, Convergence may agree to provide to the Customer an additional Related Service on the terms of the Agreement.

6. CLIENT OBLIGATIONS

6.1 General use:​​ The Customer and its personnel must: a. use the Services in accordance with the Agreement solely for: i. the Customer’s own internal business purposes; and ii. lawful purposes [including complying with the Unsolicited Electronic Messaging Act 2007]; and b. not resell or make available the Services to any third party, or otherwise commercially exploit the Services.

6.2 Access conditions:​​ When accessing the SaaS Service, the Customer and its personnel must: a. not impersonate another person or misrepresent authorisation to act on behalf of others or the Supplier; b. correctly identify the sender of all electronic transmissions; c. not attempt to undermine the security or integrity of the Underlying Systems; d. not use, or misuse, the SaaS Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service; e. not attempt to view, access or copy any material or data other than that which the Customer is authorised to access; f. neither use the SaaS Service in a manner, nor transmit, input or store any Data, that breaches any third party right [including Intellectual Property Rights and privacy rights] or is Objectionable, incorrect or misleading; and g. comply with any terms of use on the Website, as updated from time to time by Convergence​.

6.3 Personnel: a. Without limiting clause 6.2, no individual other than a Permitted User may access or use the SaaS Service. b. The Customer may authorise any member of its personnel to be a Permitted User, in which case the Customer will provide Convergence with the Permitted User’s name and other information that Convergence reasonably requires in relation to the Permitted User. c. The Customer must procure each Permitted User’s compliance with clauses 6.1 and 6.2 and any other reasonable condition notified by Convergence to the Customer. d. A breach of any term of the Agreement by the Customer’s personnel [including, to avoid doubt, a Permitted User] is deemed to be a breach of the Agreement by the Customer.

6.4 Authorisations:​​ The Client is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.

7. DATA

7.1 Supplier access to Data: a. The Customer acknowledges that: i. Convergence may require access to the Data to exercise its rights and perform its obligations under the Agreement; and ii. to the extent that this is necessary but subject to clause 10, Convergence may authorise a member or members of its personnel to access the Data for this purpose. b. The Customer must arrange all consents and approvals that are necessary for Convergence to access the Data as described in clause 7.1a.

7.2 Agent: a. The Customer acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, Convergence is acting as an agent of the Customer for the purposes of the Privacy Act 1993 and any other applicable privacy law. The Customer must obtain all necessary consents from the relevant individual to enable Convergence to collect, use, hold and process that information in accordance with the Agreement.

7.3 Backups of Data:​​ As the Data processed through the SaaS Service is considered transient, Convergence will not backup any of the Customer’s Data. The Customer agrees to keep a backup copy of all Data uploaded by it to the SaaS Service.

7.4 International storage of Data:​​ The Customer agrees that Convergence may store Data [including any Personal Information] in secure servers in New Zealand and the USA and may access that Data [including any Personal Information] in New Zealand and the USA from time to time.

7.5 Indemnity:​​ The Customer indemnifies Convergence against any liability, claim, proceeding, cost, expense [including the actual legal fees charged by Convergence’s solicitors] and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party [including Intellectual Property Rights and privacy rights] or that the Data is Objectionable, incorrect or misleading.

8. FEES

8.1 Fees:​​ The Customer must pay to Convergence the Fees.

8.2 Invoicing and payment: a. Convergence will provide the Customer with valid GST tax invoices on the dates set out in the Payment Terms, or if there are none, monthly in advance for the Fees due for the next month. b. The Fees exclude GST, which if applicable, the Customer must pay on taxable supplies under the Agreement. c. The Customer must pay the Fees: i. on the dates set out in the Payment Terms, or if there are none, within 5 business days following the date of invoice; and i. electronically in cleared funds without any setoff or deduction.

8.3 Overdue amounts:​​ Convergence may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment [both inclusive] at an annual percentage rate equal to the corporate overdraft reference rate [monthly charging cycle] applied by Convergence’s primary trading bank as at the due date [or, if Convergence’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage] plus 2% per annum.

8.4 Increases: a. By giving at least thirty days’ notice, the Supplier may increase the Fees once each Year [but not the first Year] by the percentage change in the New Zealand Consumer Price Index [or similar or equivalent index if that index ceases to be published] over the 12 months preceding the last quarterly publication of that index issued by Statistics New Zealand prior to the date of the notice. Fees updated under this clause are deemed to be the Fees listed in the Key Details. b. If the Customer does not wish to accept and pay the increased Fees, it may terminate the Agreement on no less than 10 days’ notice, provided the notice is received by Convergence before the effective date of the Fee increase. If the Customer does not terminate the Agreement in accordance with this clause, it is deemed to have accepted the increased Fees. c. If the Customer commenced using the CODI SaaS software prior to it being rebranded to CODI, Convergence reserves the right to align the Customer’s Fees with Convergence’s standard pricing over a period of 12 months, or as otherwise agreed between the parties.

9. INTELLECTUAL PROPERTY

9.1 Ownership: a. Subject to clause 9.1b, title to, and all Intellectual Property Rights in, the Services, the Website, and all Underlying Systems is and remains the property of the Convergence [and its licensors]. The Customer must not dispute that ownership. b. Title to, and all Intellectual Property Rights in, the Data [as between the parties] remains the property of the Customer. The Customer grants Convergence a worldwide, non-exclusive, fully paid up, transferable, irrevocable license to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with the Agreement.

9.2 Know how:​​ To the extent not owned by Convergence, the Customer grants Convergence a royalty-free, transferable, irrevocable and perpetual licence to use any know how, techniques, ideas, methodologies, and similar Intellectual Property used by Convergence in the provision of the Services.

9.3 Feedback:​​ If the Customer provides Convergence with ideas, comments or suggestions relating to the Services or Underlying Systems [together​ feedback​​]: a. all Intellectual Property Rights in that feedback, and anything created as a result of that feedback [including new material, enhancements, modifications or derivative works], are owned solely by Convergence; and b. Convergence may use or disclose the feedback for any purpose.

9.4 Third party sites and material:​​ The Customer acknowledges that the SaaS Service may link to third party websites or feeds that are connected or relevant to the SaaS Service. Any link from the SaaS Service does not imply any Supplier endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, Convergence excludes all responsibility or liability for those websites or feeds.

10. CONFIDENTIALITY

10.1 Security:​​ Each party must, unless it has the prior written consent of the other party: a. keep confidential at all times the Confidential Information of the other party; b. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and c. disclose the other party’s Confidential Information to its personnel or professional advisors on a ​need to know
​ basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 10.1a and 10.1b.

10.2 Permitted disclosure:​​ The obligation of confidentiality in clause 10.1a does not apply to any disclosure or use of Confidential Information: a. for the purpose of performing the Agreement or exercising a party’s rights under the Agreement; b. required by law [including under the rules of any stock exchange]; c. which is publicly available through no fault of the recipient of the Confidential Information or its personnel; d. which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or e. by Convergence if required as part of a ​bona fide
​ sale of its business [assets or shares, whether in whole or in part] to a third party, provided that Convergence enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 10.

11. WARRANTIES

11.1 Mutual warranties:​​ Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when entered into, will constitute binding obligations on the warranting party.

11.2 No implied warranties: ​​To the maximum extent permitted by law: a. Convergence’s warranties are limited to those set out in the Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise [including any warranty under the Sale of Goods Act 1908] are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to NZ$1,000.00; and b. Convergence makes no representation concerning the quality of the Services and does not promise that the Services will: i. meet the Customer’s requirements or be suitable for a particular purpose; or ii. be secure, free of viruses or other harmful code, uninterrupted or error free.

11.3 Consumer Guarantees Act: ​​The Customer agrees and represents that it is acquiring the Services, and entering the Agreement, for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply to the supply of the Services or the Agreement.

11.4 Limitation of remedies:​​ Where legislation or rule of law implies into the Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Agreement. However, the liability of Convergence for any breach of that condition or warranty is limited, at Convergence’s option, to: a. supplying the Services again; and/or b. paying the costs of having the Services supplied again.

12. LIABILITY

12.1 Maximum liability:​​ The maximum aggregate liability of Convergence under or in connection with the Agreement or relating to the Services, whether in contract, tort [including negligence], breach of statutory duty or otherwise, must not in any Year exceed NZ$3,600.00. The cap in this clause 12.1 includes the cap set out in clause 11.2a.

12.2 Unrecoverable loss:​​ Neither party is liable to the other under or in connection with the Agreement or the Services for any: a. loss of profit, revenue, savings, business, use, data [including Data], and/or goodwill; or b. consequential, indirect, incidental or special damage or loss of any kind.

12.3 Unlimited liability: a. Clauses 12.1 and 12.2 do not apply to limit Convergence’s liability: i. under or in connection with the Agreement for: – personal injury or death; – fraud or wilful misconduct; or – a breach of clause 10. b. Clause 12.2 does not apply to limit the Customer’s liability: i. to pay the Fees; ii. under the indemnity in clause 4.5; or iii. for those matters stated in clause 12.3a.

12.4 No liability for other’s failure:​​ Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.

12.5 Mitigation:​​ Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.

13. TERM, TERMINATION AND SUSPENSION

13.1 Duration:​​ Unless terminated under this clause 13, the Agreement: a. starts on the Start Date and ends on the End Date; but b. where no End Date is set out in the Key Details, continues for successive terms of 12 months from the Start Date unless a party gives 60 days notice that the Agreement will terminate on the expiry of the then current term.

13.2 Minimum Term:​​ The Agreement is entered into for a minimum period of 36 months.

13.3 Termination rights: a. Either party may, by notice to the other party, immediately terminate the Agreement if the other party: i. breaches any material provision of the Agreement and the breach is not: – remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or – capable of being remedied; ii. becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or iii. is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure. b. If all other available remedies are exhausted without remedying or settling the IP Claim, Convergence may, by notice to the Customer, immediately terminate the Agreement.

13.4 Consequences of termination or expiry: a. Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry. b. On termination or expiry of the Agreement, the Customer must pay all Fees for Services provided prior to that termination or expiry. c. Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of the Agreement, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control. d. At any time prior to one month after the date of termination or expiry, the Customer may request: i. a copy of any Data stored using the SaaS Service, provided that the Customer pays Convergence’s reasonable costs of providing that copy. On receipt of that request, Convergence must provide a copy of the Data in a common electronic form. Convergence does not warrant that the format of the Data will be compatible with any software; and/or ii. deletion of the Data stored using the SaaS Service, in which case Convergence must use reasonable efforts to promptly delete that Data. For the avoidance of doubt, Convergence is not required to comply with clause 13.4di to the extent that the Customer previously requested deletion of the Data.

13.5 Obligations continuing:​​ Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 7.5, 9, 10, 12, 13.4, 13.5 and 14, continue in force.

13.6 Suspending access:​​ Without limiting any other right or remedy available to Convergence, Convergence may restrict or suspend the Customer’s access to the SaaS Service where the Customer [including any of its personnel]: a. undermines, or attempts to undermine, the security or integrity of the SaaS Service or any Underlying Systems; b. uses, or attempts to use, the SaaS Service: i. for improper purposes; or ii. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service; or c. has otherwise materially breached the Agreement [in Convergence’s reasonable opinion].

13.7 Notice:​​ Convergence must notify the Customer where it restricts or suspends the Customer’s access under clause 13.6.

14. DISPUTES

14.1 Good faith negotiations:​​ Before taking any Court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.

14.2 Obligations continue:​​ Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.

14.3 Right to seek relief:​​ This clause 14 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

15. GENERAL

15.1 Force Majeure:​​ Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party: a. immediately notifies the other party and provides full information about the Force Majeure; b. uses best efforts to overcome the Force Majeure; and c. continues to perform its obligations to the extent practicable.

15.2 Rights of third parties:​​ No person other than Convergence and the Customer has any right to a benefit under, or to enforce, the Agreement.

15.3 Waiver:​​ To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.

15.4 Independent contractor:​​ Subject to clause 7.2, Convergence is an independent contractor of the Customer, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.

15.5 Notices:​​ A notice given by a party under the Agreement must be delivered to the other party via email using the email address set out in the Key Details or otherwise notified by the other party for this purpose. If the notice is a notice of termination, a copy of that email must be immediately delivered [by hand or courier] to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address.

15.6 Severability:​​ Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.

15.7 Variation:​​ The Customer must be given at least 30 days written notice to any variation to the Agreement.

15.8 Entire agreement:​​ The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986.

15.9 Subcontracting and assignment: a. The Customer may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of Convergence, that consent not to be unreasonably withheld. The Customer remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing. b. Any change of control of the Client is deemed to be an assignment for which the Supplier’s prior written consent is required under clause 12.9a. In this clause ​change of control​​ means any transfer of shares or other arrangement affecting the Client or any member of its group which results in a change in the effective control of the Client.

15.10 Law:​​ The Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with the Agreement.