Exsalerate Terms and Conditions of UseVersion 1.2
Current as at 26 May 2018
(1) Solution Source Limited, a company incorporated and registered in New Zealand with company number 428451 whose registered office is at 470 Parnell Road, Auckland & physical address at Building D3, Unit A, 373 Neilson Street, Penrose, Auckland, New Zealand. Phone number +649 307 4020 (the Supplier)
(2) The Customer.
(A) The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-use basis for the purpose of customer relationship management.
(B) The Customer wishes to use the Supplier's service in its business operations.
(C) The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier's service subject to the terms and conditions of this agreement.
1 Agreed Terms
The definitions and rules of interpretation in this clause apply in this agreement. Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 0. Business Day: any day which is not a Saturday, Sunday or public holiday in New Zealand. Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions. Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.5. Customer: means the company or other legal entity who registers to purchase the Services. Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services. Documentation: the document made available to the Customer by the Supplier online via http://www.exsalerate.com or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services. Effective Date: the date on which the Supplier begins to supply to the Services to the Customer. Normal Business Hours: 8.00 am to 6.00 pm local New Zealand time, each Business Day. Renewal Period: the period described in clause 15. Services: the subscription services provided by the Supplier to the Customer under this agreement via http://www.exsalerate.com or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation. Software: the online software applications provided by the Supplier as part of the Services. Subscription Fees: the subscription fees payable by the Customer to the Supplier for the Subscription Plan, as set out in Schedule 1. The name that will appear on your invoice will be Solution Source Limited. The name that will appear on your card statement will be Exsalerate CRM. Subscription Plan: the plan under which the Customer purchases Services from the Supplier, as set out in Schedule 1. Subscription Term: has the meaning given in clause 15. Supplier: Solution Source Limited, a company incorporated and registered in New Zealand with company number 428451 whose registered office is at 470 Parnell Road, Auckland. Trial Period: has the meaning given in clause 10. Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices. 1.2 Clause and schedule headings shall not affect the interpretation of this agreement. 1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns. 1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. 1.5 Words in the singular shall include the plural and vice versa. 1.6 A reference to one gender shall include a reference to the other genders. 1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. 1.8 A reference to writing or written includes faxes and e-mails. 1.9 References to clauses and schedules are to the clauses and schedules of this agreement.
2 Authorised Users
2.1 Subject to the Customer purchasing a Subscription Plan in accordance with clause 3.4 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, the Supplier grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
2.2 In relation to the Authorised Users, the Customer undertakes that: (a) it agrees to a particular subscription plan as set out in Schedule 1 and accordingly agrees to have its fee for the forthcoming month set to reflect the maximum number of Authorised Users in the current month; and (b) each Authorised User shall keep a secure password for his use of the Services and Documentation and that each Authorised User shall keep his password confidential.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or (f) causes damage or injury to any person or property; and the Supplier reserves the right, without liability to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
2.4 The Customer shall not: (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: i. and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or ii. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or (b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or (c) use the Services and/or Documentation to provide services to third parties; or (d) subject to clause 20, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or (e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; and
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3 Additional Authorised Users
3.1 Subject to clauses 1.1, 3.3 and clause 3.4, the Customer may, from time to time during any Subscription Term, set up additional Authorised Users and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement and security level applied to the Authorised User by the Customer's site administrator.
3.2 If the Customer makes a request under clause 1.1, and one or more of the additional Authorised Users requested would exceed the number of Authorised Users permissible under the Customer's current Subscription Plan, the Customer agrees to pay the additional amount in accordance with Schedule 1.
3.3 If the Customer chooses to change its Subscription Plan, the Customer shall, within 30 days of the date of the Supplier's invoice, pay to the Supplier the relevant fees for the new Subscription Plan as set out in Schedule 1 and, if the change in Subscription Plan is to take effect part way through a Subscription Term, such fees shall be pro-rated for the remainder of the Subscription Term.
4.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
4.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for: (a) planned maintenance carried out during the maintenance window of 9.00 pm to 2.00 am New Zealand time and downtime shall not exceed 1 hour continuously; and (b) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.
4.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier's standard customer support services during Normal Business Hours. The Customer may purchase enhanced support services separately at the Supplier's then current rates.
5 Customer Data
5.1. The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2. The Supplier shall follow its archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
5.3. The Supplier shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Customer Data available at http://www.exsalerate.com or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.
5.4. The Customer acknowledges and agrees that the Customer Data may be transferred or stored outside New Zealand or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier's other obligations under this agreement;
5.5. The Customer shall ensure that the Customer is entitled to use and upload the relevant Customer Data to the Supplier so that the Supplier may lawfully store the Customer Data in accordance with this agreement on the Customer's behalf;
5.6. The Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable legislation;
5.7. The Supplier shall not: (a) modify the Customer Data; (b) disclose the Customer Data except as authorised by the Customer or where the Supplier believes disclosure is required by law; (c) access the Customer Data; except to provide the Services, improve the way that the Services are provided, or in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time.
5.8. Each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of Customer Data or its accidental loss, destruction or damage.
6 Third Party Providers
7 Supplier's Obligations
7.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, the Supplier: (a) does not warrant that the Customer's use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and (b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
7.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
8 Customer's Obligations
The Customer shall: (a) provide the Supplier with: i. all necessary co-operation in relation to this agreement; and ii. all necessary access to such information as may be required by the Supplier; in order to render the Services, including but not limited to Customer Data, security access information and configuration services; (b) comply with all applicable laws and regulations with respect to its activities under this agreement; (c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary; (d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement; (e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services; (f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and (g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
9 Charges and Payment
9.1 The Customer shall pay the Subscription Fees to the Supplier for the Subscription Plan in accordance with this clause and Schedule 1.
9.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details.
9.3 The Supplier shall invoice the Customer: (a) on the Effective Date for the Subscription Fees payable in respect of the initial Subscription Term; and (b) subject to clause 15, on the last day of a Subscription Term for the Subscription Fees payable in respect of the next Subscription Term (calculated in accordance with clause 2.2(a)),
9.4 The Customer hereby authorises the Supplier to bill its credit card: (a) on the Effective Date for the Subscription Fees payable in respect of the initial Subscription Term; and (b) subject to clause 15, five Business Days after the commencement of a Subscription Term for the Subscription Fees payable in respect of that Subscription Term.
9.5 If the Supplier has not received payment within 30 days of an invoice, and without prejudice to any other rights and remedies of the Supplier: (a) the Supplier may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (b) interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Supplier's bankers in New Zealand at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.6 All amounts and fees stated or referred to in this agreement: (a) shall be payable in the currency stated on the Supplier's website relevant to the jurisdiction; (b) are, subject to clause 14.4, non-cancellable and non-refundable; (c) are exclusive of goods and services tax or value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
9.7 The Supplier shall be entitled to increase or decrease the Subscription Fees at any time, with any change to apply at the start of next Subscription Term and Schedule 1 shall be deemed to have been amended accordingly.
10 Trial Period
10.1 If the Customer registers for a trial of the Services: (a) the Supplier will supply the Services to the Customer for 30 days from the date the Customer registers (Trial Period); (b) the Customer will not be required to pay any Subscription Fees for Services provided during the Trial Period; (c) the Customer will not be required to purchase any Services after the Trial Period ends; and (d) the terms of this agreement apply, with any necessary changes and subject to this clause 10, during the Trial Period.
10.2 If the Customer chooses to use the Services after the Trial Period ends: (a) a Subscription Term will commence 31 days after the date the Customer registered; (b) the terms of this agreement will apply, including payment of Subscription Fees under clause 9.
10.3 Any Customer Data inputted during the Trial Period may be deleted at the conclusion of the Trial Period, unless the Customer purchases Services on a Subscription Plan before the end of the Trial Period.
10.4 The Customer should consider exporting its Customer Data before the end of the Trial Period if it does not intend to purchase Services on a Subscription Plan.
10.5 The Supplier reserves the right to refuse in its sole discretion to provide Services to any person for a Trial Period, including without limitation if the Supplier believes that the person is attempting to obtain multiple or consecutive Trial Periods.
11 Propriety Rights
11.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
11.2 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party's lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
12.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement.
12.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
12.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
12.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information.
12.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
12.7 This clause 12 shall survive termination of this agreement, however arising.
13.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that: (a) the Customer is given prompt notice of any such claim; (b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and (c) the Customer is given sole authority to defend or settle the claim.
13.2 The Supplier shall, subject to clause 13.5, defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any New Zealand patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that: (a) the Supplier is given prompt notice of any such claim; (b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and (c) the Supplier is given sole authority to defend or settle the claim.
13.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
13.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: (a) a modification of the Services or Documentation by anyone other than the Supplier; or (b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or (c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
13.5 The foregoing states the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
14 Limitation of Liability
14.1 Subject to the provisions of clause 13, this clause 14 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of: (a) any breach of this agreement; (b) any use made by the Customer of the Services and Documentation or any part of them; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
14.2 Except as expressly and specifically provided in this agreement: (a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction; (b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and (c) the Services and the Documentation are provided to the Customer on an "as is" basis.
14.3 Nothing in this agreement excludes the liability of the Supplier: (a) for death or personal injury caused by the Supplier's negligence; or (b) for fraud or fraudulent misrepresentation.
14.4 Subject to clause 14.2 and clause 14.3: (a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and (b) the Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid during the 12 months immediately preceding the date on which the claim arose.
15 Term and Termination
15.1 This agreement shall, unless otherwise terminated as provided in this clause 15, commence on the Effective Date and shall continue 1 month and, thereafter, this agreement shall be automatically renewed for successive periods of 1 month (each a Subscription Term), unless: (a) either party notifies the other party of termination, in writing, at least 30 days before the end of a Subscription Term, in which case this agreement shall terminate upon the expiry of the applicable Subscription Term; or (b) otherwise terminated in accordance with the provisions of this agreement.
15.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if: (a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or (b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or (c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors; or (d) a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or (e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or (f) the other party ceases, or threatens to cease, to trade; or (g) there is a change of control of the other party; or (h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
15.3 On termination of this agreement for any reason: (a) all licences granted under this agreement shall immediately terminate; (b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party; (c) the Supplier may, in its sole discretion, retain and not destroy or otherwise dispose of any of the Customer Data in its possession after the effective date of the termination of this agreement, in order to facilitate the Customer's ability to re-subscribe; (d) the Customer shall have no right to access the Services, including for the purpose of backing up or exporting the Customer Data, after the effective date of the termination of this agreement; (e) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced. 15.4 Refund Policy: a) All charges are for complete months and no refunds will issued for for termination part way through a month. The services will remain available for until the end of month of subscription paid for.
16 Force Majeure
The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
17.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
17.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
18.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
18.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
19 Entire Agreement
19.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. 19.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
20.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement. 20.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
21 No Partnership or Agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22 Third Party Rights
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Privity) Act 1982.
Any notice required to be given under this agreement must be in writing by e-mail and will be deemed to have been given on transmission. Notices to the Supplier must be sent to email@example.com or to any other email address notified from the Supplier to the Customer for that purpose. Notices to the Customer will be sent to the email address the Customer provided when setting up access to the Services.
24 Governing Law and Jurisdiction
24.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of New Zealand.
24.2 The parties irrevocably agree that the courts of New Zealand have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims). Schedule 1 Subscription Plans 1. The Subscription Fees for the Services per month shall be payable as set out in the seat calculator on the pricing page of www.exsalerate.com 2. If the Supplier provides on-site training or set-up assistance, this will be payable separately on an as-required basis at a rate to be agreed between the parties. The terms of this agreement, with necessary changes, shall apply to the provision of such services
25. Our Responsibilities
25.1. Provision of Solution Source Services. Supplier will (a) make the Solution Source Services, Content and Customer Data available to a Client pursuant to these Terms, (b) provide applicable standard support for the Solution Source Services to Client at no additional charge, and/or upgraded support (for an additional charge, if applicable), (c) use commercially reasonable efforts to make the Solution Source Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Supplier shall give advance electronic notice as provided in the Guidelines), and (ii) any unavailability caused by circumstances beyond Supplier’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or denial of service attack.
25.2. Protection of Customer Data. Supplier will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Guidelines. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Supplier personnel except (a) to provide the Solution Source Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.4 (Compelled Disclosure) below, or (c) as a Client or User expressly permit in writing.
26. Data Processing Contract
For the purposes of Article 28 of Regulation (EU) 2016/679, these Terms constitute the data processing contract between the Client as the data controller and the Supplier as the data processor. The Client hereby instructs the Supplier to process the data as described in these Terms.
26.1 Subject matter and nature of processing. The Supplier provides the Platform where the Client, as the data controller, can collect, store and organize the personal data of data subjects determined by the Client. The Platform has been designed to work as a CRM tool but, to the extent not regulated by these Terms, the Client decides how they use the Platform.
26.2 Duration. The Supplier will process data on behalf of the Client until the termination of the Solution Source Services in accordance with these Terms. Upon termination, Solution Source will store the Client’s data for a period of six months, should the Client wish to reopen the Account to resume the use of the Solution Source Services or to export Customer Data, unless instructed otherwise by the Client. The Supplier deletes or returns all the personal data to the controller after the end of the provision of services relating to processing, and deletes existing copies unless Union or Member State law requires storage of the personal data.
26.3 Parties’ rights and obligations. The Client’s rights and obligations regarding Customer Data are provided in sections 4 through 10 of these Terms. The Supplier ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality. The Supplier takes all measures required pursuant to Article 32 of Regulation (EU) 2016/679. The Supplier undertakes to make available to the controller all information necessary to demonstrate compliance with their obligations and to allow for and contribute to audits, including inspections, conducted or mandated by the Client as the data controller.