NZ SaaS Agreement

SOFTWARE AS A SERVICE SUBSCRIPTION AGREEMENT

This agreement is dated [DATE]

Parties

(1) C-LINK incorporated and registered in England and Wales with company number 09791821, whose registered office is at 85 Great Portland Street, First Floor, London, United Kingdom, W1W 7LT (C-LINK)

(2) [FULL COMPANY NAME] incorporated and registered in New Zealand with company number [NZ COMPANY NUMBER], whose registered office is at [REGISTERED OFFICE ADDRESS] (Client)

BACKGROUND

(A) C-LINK has developed a collaborative cloud-based commercial management system for use within the construction and engineering sector comprising of certain software applications and platforms (together, the System) which it makes available to subscribers via the internet.

(B) The Client wishes to use the System and its associated Services in its business operations.

(C) C-LINK has agreed to provide the System, and the Client has agreed to take and pay for it, subject to the terms and conditions of this agreement.

Agreed Terms

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

Authorised Users: those employees, agents, and independent contractors of the Client who are authorised by the Client to use the Services and the Documentation.

Authorised Representative: the person nominated by the Client, as having the authority to bind the Client in all matters relating to this agreement.

Business Day: a day other than a Saturday, Sunday, or public holiday in New Zealand when banks in Wellington are open for business.

Commencement Date: the date set out in the Quotation.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in 9.5 or 9.6.

Client Data: the data inputted by the Client, Authorised Users, or C-LINK on the Client’s behalf for the purpose of using the Services or facilitating the Client’s use of the Services and which has fully synchronised with the Services.

Documentation: means the user guides, video tutorials, help articles and specifications, online materials, and other documents for the System, created, owned, and maintained by C-LINK or C-LINK’s duly authorised contractors or agents.

Fees: the fees payable to C-LINK, including Setup and Configuration Services fees, Training fees, and subscription fees, as described in the Quotation.

Initial Term: the initial term of this agreement, which shall be a period of two (2) years or as otherwise set out in the Quotation.

Normal Business Hours: 9 am to 5 pm local New Zealand time, each Business Day.

Renewal Period: the period described in 12.1.

Services: the services provided by C-LINK to the Client under this agreement via www.c-link.co.nz or any other website notified to the Client by C-LINK from time to time, as more particularly described in the Documentation, including Setup and Configuration Services, Training, development work, hosting, support, maintenance, and any other work or services that it is agreed are to be provided by C-LINK to the Client pursuant to the Quotation.

Setup and Configuration Services: the setup and related work referred to in the Quotation to be performed by C-LINK or C-LINK’s duly authorised contractors or agents, which enables the Client to use the System.

Software: the online software applications provided by C-LINK as part of the Services, including any error corrections, updates, upgrades, modifications, and enhancements.

Subscription Term: means the Initial Term together with any subsequent Renewal Periods.

Training: the training of Authorised Users referred to in the Quotation to be performed by C-LINK or C-LINK’s duly authorised contractors or agents.

Quotation means C-LINK’s latest accepted written quotation to the Client identifying the specific Services, the period that the Services are to be provided, any limitations on how and where the Services may be used, and the corresponding Fees.

1.2 Clause, schedule, and paragraph headings shall not affect the interpretation of the agreement.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

1.4 A reference to a company shall include any company, corporation, or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement, including amendments and re-enactments.

1.7 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision, including regulations, orders, and other
legal instruments.

1.8 A reference to writing or written includes email, provided that in the case of the Client, email has been sent by the Authorised Representative.

1.9 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.

2. Authorised Users

2.1 Subject to the Client complying with the terms and conditions of this agreement, C-LINK hereby grants to the Client a non-exclusive, non-transferable right, without the right to grant sublicenses, to permit the Authorised Users to use the System, the Services, and the Documentation during the Subscription Term.

2.2 The Client undertakes that it is responsible for appointing and supervising “Administrators” who will undertake support and administration duties for day-to-day matters on behalf of the Client relating to the System, including the creation of new Authorised User accounts, Client project set-up, and the maintenance of roles and permissions. C-LINK will provide Training for Administrators in accordance with the Quotation but will not assume any responsibility for their acts or omissions.

2.3 Each Authorised User shall keep a secure password for their use of the Services and Documentation. Each Authorised User shall keep their password confidential. The Client shall not and shall take all appropriate steps to ensure that Authorised Users 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;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(f) is otherwise illegal or causes damage or injury to any person or property;

and C-LINK reserves the right, without liability or prejudice to its other rights, to disable the Client’s access to any material that breaches the provisions of this clause.

2.4 The Client shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement;

(b) 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;

(c) attempt to decompile, reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Software;

(d) 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;

(e) use the Services and/or Documentation to provide services to third parties;

(f) 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;

(g) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2;

(h) introduce or permit the introduction of, any virus or vulnerability into C-LINK’s network and information systems.

2.5 The Client 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 C-LINK.

2.6 The Client shall 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.

2.7 The rights provided under this clause 2 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.

3. Change Request

3.1 Subject to 3.2 and 3.3, the Client may, from time to time during any Subscription Term, request a change to the scope of the Services.

3.2 If the Client wishes to change the scope of the Services, the Client shall notify C-LINK in writing. C-LINK shall evaluate such request for additional Services and respond to the Client with approval or rejection of the request.

3.3 If C-LINK approves the Client’s request to purchase additional Services, the Client shall, within 7 days of the date of C-LINK’s invoice, pay to C-LINK the relevant Fees for such additional Services and, if such additional Services are purchased by the Client part way through the Initial Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by C-LINK for the remainder of the Initial Term or then-current Renewal Period (as applicable).

4. Services

4.1 C-LINK shall, during the Subscription Term, provide the Services and make available the Documentation to the Client on and subject to the terms of this agreement.

4.2 C-LINK shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

(a) planned maintenance of not exceeding 4 hours per intervention, carried out during the maintenance window of 9.00 am to 1.00 pm UK time no more than once every 3 weeks;

(b) unscheduled maintenance performed outside Normal Business Hours, provided that C-LINK has used reasonable endeavours to give the Client at least 4 Normal Business Hours’ notice in advance;

(c) downtime caused by use of the Services contrary to C-LINK’s Documentation or modification or alteration of the Services by any party other than C-LINK or C-LINK’s duly authorised contractors or agents; and

(d) downtime caused by circumstances beyond C-LINK’s reasonable control, including without limitation, a Force Majeure event.

4.3 C-LINK will, as part of the Services, provide the Client with C-LINK’s support services, which unless otherwise agreed, shall be limited solely to the operation of the System. Authorised Users may raise support tickets in connection with the Services through the C-LINK support centre, and C-LINK will aim to respond in accordance with the response targets set out below in terms of Business Day(s) and Normal Business Hours:

Severity	Description	Response Time	Service Recovery	Issue Resolution
1	Critical: System completely non-operational, or key data lost, or the majority of Users prevented from using the system.	Within 2 hours	Within 6 hours	Within 10 days
2	High: Functional or operational issue with the system, which does not render the system inoperable, but does significantly impact daily operation of the system. The issue being considered sufficiently urgent to warrant an accelerated resolution turn-around.	Within 4 hours	Within 8 hours	Within 10 days
3	Medium: Functional or operational issue with the system, which does not render the system inoperable, but which does significantly impact daily operation. The issue not warranting an accelerated resolution turn-around.	Within 8 hours	Within 16 hours	Within 20 days
4	Low: Other problems, e.g., minor input or output problems which do not disrupt normal working, or enhancement requests, or general enquiries/clarifications.	Within 16 hours	N/A	N/A

5. Data Protection

5.1 The parties acknowledge that in utilising the Services, the Client may input into the C-LINK System the following personal data relating to a data subject: first and last names, email address, contact telephone number(s), and job title or function. The parties further acknowledge that for the purposes of the Privacy Act 2020 (New Zealand’s Data Protection Legislation), the Client is the controller and C-LINK is the processor of such personal data. Both parties will comply with all applicable requirements of the Privacy Act 2020 and any other applicable privacy legislation in New Zealand. This clause 5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Privacy Act 2020 or other applicable data protection laws. C-LINK may, at any time on not less than 20 Business Days’ notice, revise this clause 5 to comply with any changes to the Privacy Act 2020 or any other applicable data protection legislation.

5.2 The Client will ensure that it has all necessary consents, authorisations, and notices in place to enable lawful transfer of any personal data to C-LINK for the duration and purposes of this agreement, in accordance with the Privacy Act 2020.

5.3 C-LINK shall, in relation to any personal data processed in connection with the performance by C-LINK of its obligations under this agreement:

(a) Process that personal data only on the documented written instructions of the Client unless C-LINK is required by law to do so. If C-LINK is required to carry out additional processing by law, it will inform the Client before the processing takes place (unless he law prohibits this);

(b) Ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. These measures should be appropriate to the harm that might result from such events and the nature of the data to be protected, having regard to the tate of technological development and the cost of implementing any measures. Such measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability, and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by C-LINK;

(c) Not transfer any personal data outside of New Zealand unless the prior written consent of the Client has been obtained, and the following conditions are fulfilled:

(i) The Client or C-LINK has provided appropriate safeguards in relation to the transfer;

(ii) The data subject has enforceable rights and effective legal remedies;

(iii) C-LINK complies with its obligations under the Privacy Act 2020 and provides an adequate level of protection to any personal data that is transferred; and

(iv) C-LINK complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;

(d) Assist the Client, at the Client’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Privacy Act 2020 with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators;

(e) Notify the Client without undue delay on becoming aware of a personal data breach;

(f) At the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the agreement unless required by law to store the personal data;

(g) Without prejudice to the generality of clause 9, ensure anyone it authorises to process the personal data is subject to an appropriate commitment of confidentiality; and

(h) Maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and allow for compliance audits by the Client or the Client’s designated auditor. C-LINK shall immediately inform the Client if, in the opinion of C-LINK, an instruction infringes the Privacy Act 2020 or other applicable data protection laws.

5.4 The Client consents to C-LINK appointing a third-party processor of personal data under this agreement, as reflected in C-LINK’s online Privacy Policy. C-LINK confirms that it has entered or (as the case may be) will enter into a written agreement with the third-party processor, incorporating terms which reflect and will continue to reflect the requirements of the Privacy Act 2020 and any other applicable data protection legislation. C-LINK will remain liable to the Client for any failure of a sub-processor to meet its data protection obligations, as set out herein.

5.5 When appointing a third-party processor of personal data in accordance with clause 5.4 above, C-LINK will give the Client reasonable advance notice of such appointment. If the Client objects in writing to the appointment of a third-party processor, either party shall have the right to terminate this agreement with immediate effect, it being agreed that such termination shall not give rise to any liability to either party on account of such termination.

6. Client Data

6.1 The Client shall own all right, title, and interest in and to all of the Client Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy, and quality of all such Client Data. For purposes of development and improvement of its services for all clients, C-LINK may gather, store, analyse, and evaluate the aforementioned data, which have been generated by the Client’s use of the Services, and utilise the results of such evaluations.

6.2 C-LINK shall follow its archiving procedures for Client Data as set out in its technical note, which may be amended by C-LINK in its sole discretion from time to time. In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy against C-LINK shall be for C-LINK to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by C-LINK in accordance with the archiving procedure described in its technical note. C-LINK shall not be responsible for any loss, destruction, alteration, or disclosure of Client Data caused by any third party (except those third parties sub-contracted by C-LINK to perform services related to Client Data maintenance and back-up).

7. Charges and Payment

7.1 The Client shall pay the Fees, and C-LINK shall invoice the Client on the dates and frequency set out in the Quotation.

7.2 If C-LINK has not received payment within 7 days after the due date, and without prejudice to any other rights and remedies of C-LINK:

(a) C-LINK may, without liability to the Client, suspend access to all or part of the Services, and C-LINK shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid;

(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of C-LINK bankers in New Zealand (or the relevant applicable rate) from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

7.3 All amounts and fees stated or referred to in this agreement:

(a) shall be payable in New Zealand Dollars (NZD);

(b) are exclusive of Goods and Services Tax (GST), which shall be added to C-LINK invoice(s) at the appropriate rate, in accordance with New Zealand tax law.

7.4 C-LINK shall be entitled to increase the Fees by an amount not to exceed five percent (5%), at the start of each Renewal Period, upon 60 days’ prior notice to the Client.

8. Proprietary Rights

8.1 The Client acknowledges and agrees that C-LINK 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 Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the System, including, without limitation, the Software, the Documentation, and any other materials which C-LINK has created or may create in connection with the Services, together with any suggestions, ideas, feedback, enhancements or other information provided by the Client or Authorised Users in connection with the Services.

8.2 C-LINK 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.

9. Confidentiality and Compliance

9.1 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;

(d) is independently developed by the receiving party, which independent development can be shown by written evidence.

9.2 Subject to 9.4, each party shall hold the other’s Confidential Information in confidence and 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.

9.3 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.

9.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 9.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

9.5 The Client acknowledges that details of the Services, and the results of any performance tests of the Services, constitute C-LINK’s Confidential Information.

9.6 C-LINK acknowledges that Client Data is the Confidential Information of the Client.

9.7 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

9.8 Any clause intended to survive this agreement, including the above provisions of this clause 9, shall survive termination of this agreement, however arising.

10. Indemnity

10.1 The Client shall defend, indemnify and hold harmless C-LINK 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 Client’s use of the Services and/or Documentation, provided that:

(a) the Client is given prompt notice of any such claim;

(b) C-LINK provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and

10.2 C-LINK shall defend the Client, its officers, directors and employees against any claim that the Client’s use of the Services or Documentation in accordance with this agreement infringes any New Zealand patent effective as of the Commencement Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:

(a) C-LINK is given prompt notice of any such claim;

(b) the Client provides reasonable co-operation to C-LINK in the defence and settlement of such claim, at C-LINK’s expense; and

10.3 In the defence or settlement of any claim, C-LINK may procure the right for the Client 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 Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.

10.4 In no event shall C-LINK, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:

(a) a modification of the Services or Documentation by anyone other than C-LINK;

(b) the Client’s use of the Services or Documentation in a manner contrary to the instructions given to the Client by C-LINK; or

(c) the Client’s use of the Services or Documentation after notice of the alleged or actual infringement from C-LINK or any appropriate authority.

10.5 The foregoing and clause 11.3(b) state the Client’s sole and exclusive rights and remedies, and C-LINK’s (including C-LINK’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

11. Limitation of Liability

11.1 Except as expressly and specifically provided in this agreement:

(a) the Client assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Client, and for conclusions drawn from such use. C-LINK shall have no liability for any damage caused by errors or omissions in any information, instructions, or scripts provided to the Client in connection with the Services, or any actions taken by C-LINK at the Client’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 in New Zealand, excluded from this agreement; and

(c) the Services and the Documentation are provided to the Client on an “as is” basis. No representation is made that the Services will be uninterrupted or error-free, or will meet the Client’s requirements;

(d) the Client acknowledges that the Services may enable or assist it to access the website content of, correspond with, and use services from third parties via third-party websites, and that it does so solely at its own risk.

11.2 Nothing in this agreement excludes the liability of C-LINK:

(a) for death or personal injury caused by C-LINK’s negligence; or

(b) for fraud or fraudulent misrepresentation.

11.3 Subject to 11.1 and 11.2:

(a) C-LINK 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) C-LINK’s total aggregate liability in contract (including in respect of the indemnity at clause 10.2), 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 of the Fees during the Initial Term.

12. Term and Termination

12.1 This agreement shall, unless otherwise terminated as provided herein, commence on the Commencement Date and shall continue for the Initial Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:

(a) either party provides 7 days’ written notice of termination; or

(b) it is otherwise terminated in accordance with the provisions of this agreement.

12.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;

(b) the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 8 of the Insolvency Act 2006 (New Zealand);

(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(e) the other party applies to court for, or obtains, a moratorium under Part 1A of the Insolvency Act 2006 (New Zealand);

(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);

(h) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;

(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;

(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in 12.2(c) to 12.2(j) (inclusive);

(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

(m) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.

12.3 On termination of this agreement for any reason:

(a) all licences granted under this agreement shall immediately terminate and the Client shall immediately cease all use of the Services and/or the Documentation;

(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) C-LINK may destroy or otherwise dispose of any of the Client Data in its possession unless C-LINK receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. C-LINK shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by C-LINK in returning or disposing of Client Data; and

(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

13. Force Majeure

C-LINK shall have no liability to the Client 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 C-LINK or any other party), failure of a utility service or transport or telecommunications network, including the internet, omputer failures involving hardware or software not within C-LINK’s possession or reasonable control, acts of vandalism (including malicious cyber-attack), act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, pandemic, epidemic, accident, breakdown of plant or machinery, fire, flood, storm, or default of C-LINK or sub-contractors, provided that the Client is notified of such an event and its expected duration.

14. Conflict

If there is an inconsistency between any of the provisions in the main body of this agreement and the Quotation, the provisions in the main body of this agreement shall prevail.

15. Variation

It is the intention of the parties that the Services shall be solely governed by the terms and conditions of this agreement and that no variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives), expressly stating that the parties agree to vary the agreement in accordance with this clause 15. No general terms and conditions of the Client referred to in purchase orders, order confirmations or elsewhere shall apply.

16. Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

17. Rights and Remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

18. Severance

18.1 If any provision or part-provision of this agreement is or becomes invalid, illegal, or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

18.2 If any provision or part-provision of this agreement is deemed deleted under 18.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

19. Entire Agreement

19.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.

19.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.

19.4 Nothing in this clause shall limit or exclude any liability for fraud.

20. Assignment

The Client shall not, without the prior written consent of C-LINK, 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 Contract and Commercial Law Act 2017 (New Zealand).

23. Notices

23.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by e-mail with a copy sent by recorded delivery post to the other party at its registered office or the address set out in this agreement.

24. Governing Law

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of New Zealand.

25. Jurisdiction

Each party irrevocably agrees that the courts of New Zealand shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

This agreement has been entered into on the date stated on your signed proposal.