TANGELO GENERAL TERMS OF SERVICE

1.         DEFINITIONS

1.1.      In this document, unless the context requires otherwise:

Agreement means this agreement as updated or amended from time to time in accordance with its terms.

Confidential Information means information in any form that is:

(a)        Business or personal information uploaded by you into an Online Service;

(b)        Information disclosed by either Party to the other on the express basis that such information is confidential;

(c)        Information or material proprietary to or property of either of us, including Intellectual Property, software, source code, user manuals and proposals;

(d)        Trade secrets and all financial, accounting, and technical information, know-how, technology, operating procedures, processes, business methods, knowledge and other information created by, belonging to or developed by either Party; and

(e)        Information which might reasonably be expected by either Party to be confidential in nature.

Online Service means an online service hosted, provided or managed by us, including cloud services.

Personnel means our staff, contractors, directors and officers, and advisers, and those of any of our subsidiaries.

Proposal means a proposal, quote, draft Work Order or other document in which we describe proposed Services.

Services means any service or facility provided, arranged or made available by us through our Personnel or via a website or any other means, and includes Online Services, any services to be provided by us under a Statement of Work, and any written or verbal communications or other attendances.

Specific Services Agreement means a separate agreement between you and us relating to a specific service or project.

Work Order means a written agreement for us to provide services and/or products.

Working Day means any day other than Saturdays, Sundays, public holidays in Auckland, and any day in the period commencing on the 24th day of December in any year and ending with the 4th day of January in the following year.

Your Data means any documents, files, information or other materials uploaded by you (or by us on your behalf) to an Online Service, or otherwise provided by you to us.

1.2.      Singular words include the plural and vice versa, and where a word or phrase is defined, its other grammatical forms have a corresponding meaning.

1.3.      References to any party shall mean and include a reference to that party, its successors, executors or personal representatives (as the case may be), and transferees. Where more parties than one are covenanting parties, the covenants expressed or implied on this Agreement bind the covenanting parties jointly and each of them severally.

1.4.      Any reference to legislation, statute, regulation, ruling, code, or rules includes reference to any modification, substitute for, consolidation or re-enactment of it and any regulation, order in council or other instrument from time to time made or issued under such legislation, statute, regulation, ruling, code, or rules.

1.5.      Headings are for convenience only and do not affect the interpretation of this Agreement except for use as cross-references.

1.6.      Any covenant not to do anything shall also constitute an obligation not to suffer, permit, cause or assist any other person to do that thing.

2.         SERVICES

2.1.      We provide, and you accept, our Services on the terms of this Agreement and (where applicable) any Work Order. If there is any conflict between the provisions of the Agreement and a Work order, then any Special Conditions agreed in writing in the Work Order shall prevail, followed by the terms of this Agreement, followed by any other provisions of the Work Order.

2.2.      These are our general terms. We may provide some Services on the basis of a Specific Services Agreement, in which case the provisions of that agreement take precedence over the terms of this Agreement.

2.3.      A Service may incorporate or require the use of one or more third-party products or services. Such third-party products or services may be subject to separate terms of use and/or licences, and are subject to change without notice. You acknowledge we are not responsible for the operation or performance of any third-party products or services. You are responsible for entering into any separate third-party terms or licences required for a Service or Work Order, and your use of such third-party services shall be subject to those terms (including any disclaimers and limitations), provided that nothing in the third-party’s terms modifies this Agreement without our prior written consent.

2.4.      We are an independent service provider. You acknowledge that we may (currently or in the future) provide the same or similar services to competing businesses and we have no obligation to check for or notify potential conflicts. In providing the Services to you, we are not acting as the agent or representative of you or any party. If we receive payments from other parties in respect of the Services, you acknowledge that we are not required to disclose any such payments to you.

2.5.      We may amend this Agreement from time-to-time, provided that no amendment will apply retrospectively. Amendments will be effective upon posting of the amended Agreement on the relevant Site or Online Service. You are responsible for ensuring you have read and agree to the most recent Agreement. Your continued use of a Service will represent your agreement to be bound by the Agreement as amended.

2.6.      Subject to the terms of a Work Order, we may suspend or discontinue a Service, or terminate your use of a Service, in whole or in part at any time without notice.

2.7.      We may engage subcontractors to carry out or assist with parts or all of the Services.

3.         WORK ORDERS

3.1.      We may carry out Services under one or more Work Orders. By accepting any Work Order, or accessing or using any Service (or any part of a Service), you acknowledge that you have read this Agreement and agree to be bound by its terms.

3.2.      You must ensure that any particular requirements you have are accurately recorded or referenced in a Work Order prior to acceptance. Subject to any explicitly stated requirements, we may provide the Services based on our understanding of your requirements and the relevant Services requested.

3.3.      A Work Order includes only the services and deliverables explicitly stated in the Work Order. Unless specifically stated, a Work Order (and any related estimates, quotes or fees) does not include software licenses, hardware, third-party services, support, maintenance, upgrades, training, installation and configuration, project management, or data conversions or migration.

3.4.      We will endeavour to achieve any service levels stated in a Work Order, but otherwise do not guarantee or represent any particular service level.

4.         PROPOSALS

4.1.      Where we provide you with a Proposal, it is for the sole purpose of allowing you to consider, evaluate and seek advice on a proposed solution or supply of products/services.

4.2.      You acknowledge that a Proposal may include information sourced in good faith from one or more third parties, and that we have no responsibility for assessing the merits, suitability, accuracy, legality, or completeness of any such information. You agree that we shall not be liable for any statement, omission or representation in a Proposal.

4.3.      A Proposal will be based on our understanding and assumptions about your business and requirements. You must carefully review a Proposal and notify us in writing of any queries or concerns prior to acceptance. You are solely responsible for researching, checking and assessing all aspects of the Proposal, including without limitation:

(a)        Fitness for your intended purpose;

(b)        Compliance with your general and specific requirements, including your system requirements and usage profile;

(c)        Compatibility with your existing or future-planned systems and data;

(d)        Timetable and cost considerations; and

(e)        Conditions, disclaimers (including third-party terms) and special notes contained in the Proposal.

5.         YOUR DATA

5.1.      We will not use Your Data for any purpose other than providing you with the applicable Services. You grant to us a licence to store, process, back-up, copy, and transmit Your Data for the purposes of supplying the Services to you.

5.2.      You accept sole responsibility for all of Your Data, and shall ensure that you have all necessary copyrights, licences, permissions and consents in respect of the data and the Services it will be used with. We do not accept any liability with respect to Your Data, and you access, use and store Your Data at your own sole risk.

5.3.      Unless otherwise agreed in writing, we are not responsible for maintaining backups of Your Data, and you must maintain an up-to-date copy of Your Data at your premises at all times.

6.         ONLINE SERVICES

6.1.      We will use our reasonable endeavours to maintain good availability and performance of Online Services, however you acknowledge that access to some Online Services is dependent on third-parties (e.g. internet providers, if Tangelo is not your ISP), and unless separately agreed in writing, we do not guarantee or represent any particular uptime or service level for a third party Online Service.

6.2.      You must not use an Online Service to store, receive, transmit or make available material that is (or may reasonably be considered to be) illegal, defamatory, infringing of intellectual property rights, or harmful to the Online Service. You warrant that you are the owner or lawful licensee of any material you host, transmit or make available through an Online Service. We may amend or delete any of Your Data that is, or is alleged to be, illegal, defamatory, in breach of copyright, or in our opinion is not appropriate for an Online Service.

6.3.      You must follow our reasonable instructions in relation to any Online Service, including following any acceptable use policies we may issue from time to time.

6.4.      You are responsible for the safekeeping of all login information, and for all use of, or access to, Online Services by anyone using your login information. We may for security reasons require you to immediately change your passwords. You agree to notify us immediately if you suspect unauthorised use or disclosure of any of your accounts or passwords.

6.5.      Online Services contain certain system-mandated rules and limitations that may be varied from time to time, and your use of the Service is subject to those rules and limitations.

6.6.      We may suspend, disconnect or discontinue an Online Service in whole or part at any time without notice and without compensation, if in our reasonable opinion:

(a)        It is necessary to safeguard the provision and integrity of the Online Service or any data;

(b)        The Online Service fails or requires modification or maintenance;

(c)        A significant security risk is identified;

(d)        There is or has been unauthorised, unlawful or fraudulent use of the Online Service, or your use of the Online Service is causing or may potentially cause damage or interference to our systems;

(e)        It is necessary to comply with a direction, order or request of any government authority or other competent authority; or

(f)         You fail to comply with any of the terms of this Agreement, or applicable Work Order or Separate Services Agreement.

7.         FEES

7.1.      You will pay all fees, costs and charges for Services at the rate and in the manner specified in the relevant Work Order, Separate Services Agreement, or pricing schedule. All fees and other amounts exclude GST, other taxes and levies, and shipping costs, unless otherwise stated.

7.2.      You agree to reimburse us for all third-party costs, charges and licence fees incurred by us on your behalf as part or providing a Service.

7.3.      In addition to clause 7.1, we may render, and you agree to pay, reasonable additional charges if we are required to provide Services at physical locations or in circumstances other than those specified or reasonably anticipated in a Work Order, or if there is a material change in timing, cost or complexity of the Services.

7.4.      We will charge at cost, and you agree to pay, for other reasonable out-of-pocket expenses for providing the Services, including air travel, mileage, accommodation and courier fees. Where possible, we will endeavour to obtain your approval before incurring such expenses.

7.5.      Invoices for our fees and any other amounts payable will be issued by us at the times specified in the relevant Work Order, or otherwise monthly.

7.6.      Any dispute about an invoice or the work to which it relates must be notified to us in writing within 10 Working Days of the invoice being issued, including full details of the parts of the invoice being disputed. If such notice is given, the parties will attempt to resolve the issue in good faith. Any undisputed portion of the invoice will be paid when due. If no such notice is given, the invoice and all Services, products or other supply it covers shall be deemed accepted.

7.7.      Unless otherwise agreed in a Work Order, invoices must be paid by the 20th of the month following receipt of an invoice. You shall not make any deduction or withholding whatsoever, nor any claim or set-off. We may suspend provision of Services during any period that money due to us is outstanding.

7.8.      If full payment of an invoice has not been made by its due date, we may charge interest on all sums outstanding at the rate of 2% per month on a daily basis from the due date to the date full payment is received, and you agree to pay any collection and handling fees (including legal costs on a solicitor-client basis) incurred by us.

7.9.      If for any reason you fail to pay us for any licence fee or service paid for or procured by us on your behalf, we may by notice suspend, terminate, or require you to terminate, the relevant licences or services.

8.         YOUR OBLIGATIONS

8.1.      You must use the Services for lawful purposes only and you must comply with all applicable laws and regulations while using the Services.

8.2.      You will provide us with all necessary materials, information, access and assistance reasonably required to enable us to efficiently provide the Services.

8.3.      Unless expressly agreed as part of a Service, we are not responsible for the security of your systems or data. You must take all reasonable precautions to protect and preserve your own systems and data, including following good information security and backup practices.

8.4.      You must carefully evaluate and test the suitability, fitness for purpose and accuracy of any Service or other deliverable prior to go-live or deployment, and notify us in writing of any concerns or requested changes prior to deploying the Service or deliverable.

9.         WARRANTIES

9.1.      To the fullest extent permitted by law, any condition or warranty that is not expressly recorded in this Agreement is excluded, including, without limitation, implied warranties of merchantability and fitness for any particular purpose, and compliance with any particular standards or practice. No oral or written statement or representation (whether made before or after this Agreement) shall create a warranty or condition or in any way increase the scope of an existing warranty or condition, unless it is expressly agreed in writing to have such effect.

9.2.      If you are in trade, the parties agree that all Services and goods are supplied and acquired in trade and that the provisions of the Consumer Guarantees Act 1993, and sections 9, 12A and 13 of the Fair Trading Act 1986, shall not apply.

10.       INTELLECTUAL PROPERTY

10.1.   All intellectual property rights (including without limitation copyright, rights to names, and rights in information) in the ideas, concepts, know-how, systems, techniques, software, documentation or any other works, materials and deliverables developed and/or supplied by us or our business partners in the course of this Agreement shall remain the property of us or the applicable licensor(s).

10.2.   Unless expressly agreed otherwise in a Work Order, we shall be the owner of any new intellectual property (including copyright) in any work created in the course of providing Services.

10.3.   Where a Service includes the provision of proprietary software owned by us, the software is protected by copyright laws and international copyright treaties, as well as other intellectual property rights. We grant you a non-exclusive, non-transferable and non-assignable licence to use the software for the purposes of the Services.

10.4.   You acknowledge that a Service may incorporate third-party intellectual property. We are not responsible for vetting or seeking clearance for any third-party intellectual property, and we make no warranty or representation in relation to the same.

11.       CONFIDENTIALITY

11.1.   Neither party will, without the prior written approval of the other, disclose the other party's Confidential Information.

11.2.   Notwithstanding clause 11.1, either party may disclose Confidential Information of the other party in any of the following circumstances:

(a)        The disclosure is required by law;

(b)        The disclosure is necessary in connection with performing obligations under a Work Order, this Agreement or another agreement between the parties;

(c)        The disclosure is to an officer, employee, agent or consultant of the recipient party, but only to the extent that he or she needs to know the Confidential Information;

(d)        The disclosure is reasonably made to a professional legal adviser or professional auditor;

(e)        The other party consents in writing to the disclosure. The consent may be subject to the condition that the person to whom the disclosure is to be made enter into a separate Confidentiality Agreement with the owner of the Confidential Information;

(f)         The Confidential Information is already in the public domain;

(g)        The Confidential Information has been rightfully obtained from third parties.

11.3.   Each party will take all reasonable steps to ensure that its employees, agents, and subcontractors engaged for the purposes of this Agreement, do not disclose the other party's Confidential Information.

12.       PRIVACY

12.1.    We may collect personal information from you, including information about your:

(a)        name

(b)        contact information

(c)        location

(d)        computer or network

(e)        interactions with us

(f)         billing or purchase information

12.2.   We collect your personal information in order to:

(a)        adhere to IT and ISP legal requirements.

(b)        monitor devices and services for functionality and performance

12.3.   Besides selected staff, we only share this information to required third parties in order to provide and improve their services to you.

12.4.   Providing some information is optional. If you choose not to give permission, we may be unable to provide specific services to you.

12.5.   We keep your information safe by following industry best practices for security and restricting access to as-needed personnel. .

12.6.   We keep your information for only as long as it is required at which point we destroy it by secure erasure.

12.7.   You have the right to ask for a copy of any personal information we hold about you, and to ask for it to be corrected if you think it is wrong. If you'd like to ask for a copy of your information, or to have it corrected, please contact us at support@tangelo.com, or +64 09 525 5535, or PO Box 74047, Green Lane, Auckland 1035.

13.       HEALTH & SAFETY

13.1.   Where any Services are carried out in person on your premises (or other place under your control), you shall ensure that our Personnel are provided with safe access and all necessary health and safety information prior to Staff entering your premises (or other places under your control).

14.       TERMINATION

14.1.   You may terminate this Agreement by notice if we:

(a)        Commit a material breach of any of the provisions of this Agreement and fail to rectify the breach within 10 Working Days after being required to do so in writing; or

(b)        Enter into liquidation, receivership, bankruptcy, administration, or propose a compromise with creditors.

14.2.   We may terminate this Agreement immediately by notice if you:

(a)        Commit a material breach of any of the provisions of this Agreement and fails to rectify the breach, if capable of remedy, within 10 Working Days after being required to do so in writing;

(b)        Commit a material breach of this Agreement which is not capable of being remedied;

(c)        Persistently breach your obligations under this Agreement;

(d)        fail to pay any fees by the payment due date, and we have given you notice in writing of that breach and our intention to terminate this Agreement if payment is not made within the timeframe specified in that notice (which shall not be less than 5 Working Days), and you fail to make that payment within the timeframe;

(e)        Enter into liquidation, receivership, bankruptcy, administration, or propose a compromise with creditors.

14.3.   We may terminate this Agreement by providing two (2) months written notice.

14.4.   If this Agreement is terminated, the following rules apply:

(a)        Termination of this Agreement shall be without prejudice to other rights and remedies of the parties arising out of any default, which occurs before the termination and shall be without prejudice to any claim for moneys payable as at the date of termination or in respect of liabilities incurred before the termination.

(b)        You must return to us any of our property that is in your possession, custody or control.

(c)        We will invoice you for any uninvoiced completed work or milestones. In addition, we may charge you a reasonable amount in respect of work done but not charged (regardless of whether a milestone or deliverable has been completed).

(d)        Any current Work Orders shall be deemed terminated.

(e)        The following provisions shall remain in full force and effect: 7, 9, 11, 15, 16

15.       WARRANTIES AND LIABILITY

15.1.   You acknowledge and agree that:

(a)        Online Services and all related materials, features, components, programs, information and output available through an Online Service are provided strictly on an “as is” and “as available” basis and at your own sole risk, and we do not warrant or represent that an Online Service will be uninterrupted or error-free, or that any information, data or other output is complete, correct or up-to-date.

(b)        If you are not satisfied with an Online Service, your sole and exclusive remedy shall be to cease using the service and terminate this agreement in accordance with clause 11.2.

(c)        To the fullest extent permissible by law, any condition or warranty that is not expressly recorded in this agreement is excluded from this agreement, including, without limitation, the implied warranties of merchantability and fitness for purpose, and no oral or written information or advice given by any Personnel or other representative shall create a warranty or condition or in any way increase the scope of an existing warranty or condition.

15.2.   Except as allowed in clause 15.3, under no circumstances shall we (nor any Personnel) be liable for any costs, losses, damages or harm whatsoever (including, without limitation, direct loss, indirect or consequential loss, loss of profits, business interruption, loss or release of data, information or documents, reputational damage, or other pecuniary loss) in contract, tort (including negligence) or otherwise, arising in any way out of or in connection with this agreement or a Service or Site or Your Data or any related service or process, even if we have been advised of the possibility of such damages.

15.3.   Where a condition or warranty cannot legally be excluded, our maximum aggregate liability and your sole remedy shall be limited to one or more of (at our election):

(a)        The supplying of the Service again; or

(b)        The payments made by you in the preceding six (6) months in respect of the Service.

15.4.   No action arising out of or in connection with this agreement or any related service or process, regardless of form, may be brought by you more than 12 months after the cause of action arose.

15.5.   We are not responsible, and shall not be liable, for any claim relating to or arising from any representations, warranties or conditions made (or purported to be made) or conveyed by any agent or representative of us, or any contractor or other party, which is not expressly confirmed by us in writing.

15.6.   You agree to indemnify and keep indemnified us and our Personnel against any liability, costs, losses, claims, or damages (including legal fees and disbursements on a solicitor-client basis) arising in any way from or in connection with:

(a)        Your default or failure to perform your obligations under this Agreement;

(b)        Any act of omission for which you are responsible at law, or undertaken at your request;

(c)        Your use of an Online Service or Site;

(d)        Your Data, including but not limited to claims for defamation, infringement of Intellectual Property Rights or other proprietary rights, breach of privacy or confidence, or data loss or disclosure relating to Your Data;

(e)        Any claim or demand (or threatened claim or demand) by another party against us in connection with the Services or your use of the Services;

(f)         Non-payment of any amount when due or any action taken by or against us as a result.

16.       DISPUTES

16.1.   If a party considers that a dispute has arisen, that party must promptly send a notice to the other party setting out a full description of the matters in dispute or over which there is a difference.

16.2.   The parties must attempt to resolve the dispute in good faith by way of direct negotiation.

16.3.   If the dispute is not resolved within 30 calendar days of the notice, or any longer time the parties may agree, either party may initiate legal proceedings.

16.4.   Neither party may initiate any legal proceedings (except applications for urgent interim relief, or non-payment of any monies owing by you) until the procedures set out in this clause have been followed.

16.5.   No action arising out of or in connection with this Agreement or any Proposal or Job, regardless of form, may be brought more than 2 years after the cause of action arose.

17.       NOTICES

17.1.   Any notice required to be given under this Agreement shall be given in writing either personally, by post, by email or by document transmittal service to the recipient’s address for that type of communication (as specified on the party’s website or in a Work Order or other communication) and will be deemed effective:

(a)        after four (4) clear Working Days, if served by post, from the time of posting; or

(b)        in the case of email, when it enters the recipient’s email system.

17.2.   A Party may change its address for service by notice in writing served on the other Party. Service shall be affected in accordance with this clause.

18.       GENERAL

18.1.   This Agreement represents the whole of the contract and understanding between the parties, and replaces any prior agreements and understandings whether written, oral or both, with respect to the subject matter of this Agreement.

18.2.   Except as provided in clause 2.5, the provisions of the Agreement shall not be varied except by agreement in writing signed by each party. Any document supplied by you (or someone on your behalf) which purports to modify or supplement any provision of this Agreement shall be of no effect without each parties’ express written approval.

18.3.   If one or more of the provisions or part of any provision of this Agreement is held invalid or unenforceable, such holding shall not invalidate or render unenforceable any other provision or other part of any provision of this Agreement and shall be severed from this agreement so that the remaining provisions or other part of any provision shall remain in full force and effect shall be valid and enforceable to the fullest extent permitted by law.

18.4.   No failure or delay by us to exercise any power, remedy or right in relation to this agreement shall:

(a)        Prejudice, limit or affect or operate as a waiver of that power, remedy or right; or

(b)        Be deemed to waive any default or breach of any obligation, liability or agreement.

18.5.   The exercise or partial exercise of any power, remedy or right by us shall be without prejudice to our right to exercise that or any other power, remedy or right at the same time or in the future.

18.6.   You must not transfer or assign any of your liabilities or rights under this Agreement to any other person without our prior written consent. We may transfer or assign part or all of our rights and obligations under this Agreement to another party upon notice to you.

18.7.   We shall not be liable for any delay or failure to perform any obligation caused directly or indirectly by an event beyond our reasonable control. Those events include but are not limited to acts of God, acts of government, labour disputes or shortages, unavailability of parts, equipment failures, telecommunications failures, component failures, software errors, late or non-delivery by a supplier, or performance (or non-performance) of a contractor.

18.8.   This Agreement shall be construed in accordance with and governed by the laws of New Zealand and the parties irrevocably submit to the non-exclusive jurisdiction of the New Zealand courts.

18.9.   Nothing in this Agreement nor the provision of Services shall be construed as creating an agency, partnership or fiduciary relationship between the parties or their successors or assignees.