General Terms and Conditions

1. Fees

1.1 XOPT shall charge all Services to the Customer at the Fees specified in the Statement of Work or License agreement.

1.2 xOPT shall invoice the Customer for Services monthly in advance of the provision of Services. Unless stated otherwise, the Fees exclude GST, which the Customer must pay on all taxable supplies under the Agreement.

1.3 xOPT may pass on any increases in Fees for services supplied by third parties with thirty (30) days prior written notice.

2. Terms of Payment

2.1 Payment for all Fees for Services shall, unless otherwise agreed in writing with xOPT, be due and payable by automatic payment (without set off or deduction) on the 20th day of the month following the month in which the invoice is dated.

2.2 Where a third party supplier of services charges xOPT in advance, xOPT shall invoice the Customer for all such fees upon receipt and payment shall be due and payable in full by the 20th of the month following the month in which the invoice is dated.

2.3 In the event that any payment is not made by the due date, XxOPT may, without prejudice to any other right xOPT may have, suspend the provision of all its Services until payment for all outstanding invoices for the Services is received in full.

2.4 If any monies payable under this Agreement are not received by the due date xOPT may charge interest on a daily basis from the due date until payment is received in full. Interest shall be charged at a rate of 5% per annum above the Bank of New Zealand’s published base lending rate applicable on the due date.

2.5 The Customer will be liable for any debt collection costs incurred in the recovery or attempted recovery of any overdue monies.

2.6 In the event the Customer disputes an invoice, it must pay that part of the invoice that is not disputed by the due date for payment and the disputed amount will be resolved in accordance with clause 11.

3. General Obligations

3.1 xOPT obligations: xOPT must provide the Services:

(a) in accordance with the Agreement, all applicable laws, and where work is performed on site, any reasonable health and safety policies or instructions notified to xOPT in advance;

3.2 Manner of delivery:

(a) Where xOPT is required to undertake a task under the Agreement, and that task may be undertaken remotely, via email or phone, and/or on site, the method of delivery will be at xOPT’s option.

(b) The Customer acknowledges that:

(i) As an SaaS service provider, a number of the Services offered by XOPT are dependant on:

the internet and transmission of information (including Data) over the internet; and

the minimum requirements specified by xOPT in relation to the Services (if any) being met and maintained by the Customer (as applicable) to enable the provision of the Services.

(ii) secure transmission of that information (including Data) cannot be guaranteed even where good industry practice is followed;

(iii) xOPT can determine what tools and processes it uses to provide the Services in its sole discretion; and

(iv) the techniques (including phishing, viruses and other malware) used by third parties seeking to penetrate IT systems change rapidly. While xOPT uses reasonable efforts to keep the security services up to date (including via antivirus, firewall, application whitelisting and multi-factor authentication), xOPT is not liable or responsible to the extent that an applicable security service fails to detect a harmful item or blocks an item that is not harmful.

3.3 Exclusions: xOPT is not required to provide a Service to the extent that an Exclusion applies. At xOPT’s option, it may:

(a) Refuse to undertake any work the subject of an Exclusion; or

(b) undertake the work the subject of an Exclusion, provided that it may charge the Customer for that work at its then standard Service Rates (in addition to any Fees payable by the Customer).

3.4 Customer obligations: In addition to performing its other obligations under the Agreement, the Customer must:

(a) promptly make decisions and provide approvals;

(b) promptly implement any Critical Recommendations made by xOPT from time to time. Where the Customer does not promptly implement a Critical Recommendation, xOPT will not be responsible or liable under or in connection with this Agreement for any issue or incident to the extent that the issue or incident would not have arisen if the Critical Recommendation had been implemented;

(c) promptly provide to xOPT all information within the Customer’s control to enable xOPT to provide the Services, and must ensure any information supplied is current and correct;

(d) maintain a fully operational and secure internet connection with sufficient bandwidth and quality to enable provision of the Services;

(e) meet and maintain any minimum requirements or conditions of service stated in the applicable Service Schedule with sufficient quality to enable the provision of the Services;

(f) provide xOPT with remote and physical access to the Client’s IT environment as required for xOPT to provide the Services;

(g) procure all third party licences, agreements, authorisations and consents necessary to use all software and/or networks accessed through the Services;

(h) accept and comply with any third party terms and capability restrictions governing the use of software and/or networks accessed through the Services as set out in the relevant Service Schedule; and

(i) comply with the Agreement, including all applicable Service Schedules and SOWs.

3.5 Conditions of use by Customer: All Services provided by xOPT must be used for lawful purposes only (including complying with the Unsolicited Electronic Messages At 2007). The Customer must not use the Services to transmit, input or store any data that is threatening, obscene or breaches third party Intellectual Property Rights or confidentiality.

3.6 The Customer indemnifies and will hold XOPT from any claims, liability, costs or expenses resulting from or in connection with a breach by the Customer of clauses 3.4 and 3.5.

3.7 All files, information and mail under the account will be preserved for 90 (ninety) days from the date the payment is due. If payment is not received after 90 (ninety) days, all files, information and mail under the account may be deleted. If the Customer wishes to use the Services again, the Customer must re-apply as a new Customer. For this, an activation fee may be required.

3.8 The Customer agrees that xOPT has the right to archive for return all Data, files or other information that is stored in the Customer’s account if the Customer’s account with xOPT is terminated, for any reason, by either xOPT or the Customer. Archived Data will be supplied on a medium mutually agreed to by both parties.

4. Service Limitations

4.1 Services do not include:

(a) supply of consumables or accessories;

(b) any services supplied by third party support unless otherwise agreed;

(c) other services beyond the scope of the Services stated in the applicable Services Schedule;

(d) resolution of problems associated with any third party over which xOPT has no control, including but not limited to telecommunications suppliers, internet service providers, Customer software or equipment vendors; or

(e) any other exclusions stated in the applicable Services Schedule or Key Details.

5. Intellectual Property and Confidentiality

5.1 Each party agrees that, unless it has the prior written consent of the other party, it will:

(a) keep confidential at all times the Confidential Information of the other party; and

(b) ensure that any personnel or professional advisor to whom a party discloses the other party’s Confidential Information is aware of, and complies with, the provisions of this clause 6.1.

5.2 The obligations of confidentiality in clause 6.1 do not apply to any disclosure:

(a) for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;

(b) required by law (including under the rules of any stock exchange);

(c) of Confidential Information which:

(i) is publicly available through no fault of the recipient of the Confidential Information or its personnel; or

(ii) was rightfully received from a third party without restriction or without breach of the Agreement; or

(iii) by xOPT if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that xOPT enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 6.

5.3 Except to the extent that a party has ongoing rights to use Confidential Information, a party must, at the request of the other party following the termination of the Agreement, promptly return to the other party or destroy all Confidential Information of the other party in the recipient party’s possession or control. To avoid doubt, where the Customer requests xOPT to return the Customer’s Confidential Information, this is subject to the Customer paying any reasonable costs associated with the return of that information by xOPT.

5.4 All Intellectual Property Rights owned by a party at the Commencement Date or developed by or on behalf of them other than in connection with this Agreement remains the Intellectual Property Rights of that party.

5.5 xOPT (and its licensors) own all Intellectual Property Rights in any item (including any IT solution, system, network, software and hardware) that it uses and/or develops in the provision of the Services.

5.6 Where the Customers accepts third party licences as part of a Service, the applicable Intellectual Property Rights provisions contained in the third party licence terms will apply to any Intellectual Property Rights relating to that Service.

6. Term and Termination

6.1 The Services shall be provided by xOPT from the Commencement Date for the Initial Term, unless terminated earlier under this clause 7 or the Term is renewed under clause 7.2.

6.2 At least thirty (30) days’ prior to the expiry of the Initial Term, the Customer may give notice requesting a renewal of the Term for subsequent term(s) of twelve (12) months. xOPT may increase the Fees for the renewal term.

6.3 xOPT may terminate this Agreement immediately if the Customer fails to pay in full any sum of money when due following xOPT providing 14 days written notice of the amount outstanding.

6.4 Either party may terminate this Agreement (or any Service) immediately upon notice to the other party if the other party:

(a) breaches any material provision of the Agreement and the breach is not remedied within 20 Business Days of the other party notifying it of the breach, or is not capable of being remedied;

(b) breaches clause 6; or

(c) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator or, statutory manager appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.

6.5 Termination of the Agreement does not affect each party’s rights and obligations accrued up to the termination date.

6.6 Upon termination, the Customer will pay to xOPT all Fees due up to the date of termination. However, in the event xOPT terminates the Agreement under clause 7.3 or 7.4, the Customer will be liable for all Fees under this Agreement up to the end of then current Term.

6.7 Clauses of the Agreement which by their nature are intended to survive expiry or termination will continue in force.

7. Limitation of Liability

7.1 The total liability of xOPT under or in connection with the Agreement whether in contract, tort (including negligence), breach of statutory duty or otherwise, will not exceed the total Fees paid by the Customer within the three month period preceding the date of the event giving rise to the liability.

7.2 xOPT will not be liable for any:

(a) loss of profit, revenue, data, savings, business, revenue, and/or goodwill;

(b) indirect, consequential or incidental loss or damage arising under or in connection with the Agreement

(c) loss or damage caused by any distributed denial-of-service attack, or any other similar cyber attack or attempt that affects the Services (including a Zero Day Exploit), phishing or other social engineering attack or attempt (including due to human error by the Customer or the Customer’s users) that an applicable security service fails to detect a harmful item or blocks an item that is not harmful.

(d) loss or disclosure of electronic mail or other information transferred through the internet or any other network provider the Customer may utilise. Secure transmission of information cannot be guaranteed even where good industry practice is followed

7.3 Clauses 7.1 and 7.2 do not apply to limit XOPT’s liability for:

(a) personal injury or death;

(b) fraud or wilful misconduct;

(c) breach of confidentiality; or

(d) other liability which is not lawful to limit or exclude.

7.4 Neither party will be liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise or under any indemnity in the Agreement, to the extent that the failure or relevant event is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.

8. Warranties

8.1 The Customer agrees it is acquiring the Services for the purposes of a business and that the Consumer Guarantees Act 1993 does not apply to the supply of the Services or the Agreement, and it is fair and reasonable that the Customer is bound by the Agreement.

8.2 To the maximum extent permitted by law, the Customer’s warranties are limited to those set out in the Agreement and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded.

8.3 xOPT does not represent or warrant that the Customer will receive continual and uninterrupted Services during the Term. In no event should xOPT be liable to the Customer for any damages resulting from or related to any failure or delay of xOPT to provide Service under this Agreement.

9. Force Majeure

9.1 Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure Event, provided that the affected party:

(a) immediately notifies the other party and provides full information about the Force Majeure Event;

(b) uses best efforts to overcome the Force Majeure Event; and

(c) continues to perform its obligations as far as practicable.

10. Dispute resolution

10.1 If any dispute arises out of, or in connection with, this Agreement, either party may refer the dispute to the dispute resolution process described in this clause by notice to the other (Dispute Notice).

10.2 The senior representatives of the parties will meet within 10 Business Days of the date that the receiving party receives the Dispute Notice and attempt in a good faith effort to resolve the dispute.

10.3 If the representatives are unable to resolve the dispute within 10 Business Days of the Dispute Notice, either party may refer the dispute to mediation by notice to the other party, in which case:

(a) the mediation will be subject to the Mediation Protocol of the Arbitrators' and Mediators' Institute of New Zealand Inc. (AMINZ);

(b) the mediation will be conducted in Auckland, New Zealand by an independent mediator and at a fee agreed to by each party; and

(c) the cost of the mediator will be borne in equal proportions by the parties;

10.4 If the parties cannot agree on the mediator and/or the mediator’s fee within 5 Business Days of the referral of the dispute to mediation, the mediator will be selected, and/or the mediator’s fee will be determined, by the President of AMINZ.

10.5 Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute

10.6 Nothing in this clause prevents a party from seeking an interim injunction at any time where it deems appropriate.

11. General

11.1 This Agreement shall be governed by the laws of New Zealand and, each party submits to the non-exclusive jurisdiction of the New Zealand courts.

11.2 This Agreement cannot be modified or amended except by written amendment signed by the parties.

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

11.4 If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in force and effect.

11.5 xOPT may, without notice to the Customer, sell, transfer or assign XOPT’s rights or obligations under this Agreement to a third party. The Customer must not assign or transfer this Agreement without xOPT’s prior written consent (which must not be unreasonably withheld or delayed).

11.6 Any written notice under this Agreement shall be sent by pre-paid post or e-mail to the address of the party stated in the Key Details (as may be updated from time to time by either party giving notice).

11.7 This Agreement may be executed in any number of counterparts (including by email) which together constitute one agreement.

12. Definitions and Interpretation

12.1 Definitions specific to particular Services are defined in the relevant Services Schedule. Otherwise, the following terms have the following meaning:

Agreement means the Key Details (including the general agreement provision and signature clause), these General Terms and Conditions, and the Services Schedules.

Business Day means Monday to Friday, other than any public holiday in Auckland, New Zealand

Commencement Date means the date specified in the Schedule as the Commencement Date.

Confidential Information means the terms of the Agreement and any information which is not public knowledge and which is obtained from the other party in the course of, or in connection with, the Agreement. Customer Confidential Information includes its (or its personnel’s) user names, logins, passwords and any other account information and/or identifiers.

Critical Recommendations means a recommendation made in writing by xOPT to the Customer regarding any preventative or remediating change requirements regarding the Customer’s security, network, cloud and/or infrastructure.

Data means all data owned, held, used or created by or on behalf of the Customer, including:

(a) data relating to the Customer’s operations and clients; and

(b)all information, data, or business knowledge about the Customer, its personnel, customers and suppliers which is provided or made available by the Customer to xOPT.

Exclusion means:

(a) an event, service, matter or thing that does not form part of the Services, as set out in the Agreement or a Schedule; or

(b)any change or removal of a feature or functionality by a third party to that third party’s tools and/or software that xOPT is managing on behalf of the Customer or that forms part of a Service.

Expenses means all travel, accommodation, subsistence, telephone, copying, consumables, and other disbursements.

Equipment means the computer equipment and the software running on it, if any, owned by the Customer.

Fees means the fees for Services stated in the Key Details (as may be updated from time to time under clause 1.3 and 7.2, and unless stated otherwise in the Key Details [include] all Expenses.

Force Majeure Event means an event that is beyond the reasonable control of a party such as acts of God, natural disasters, strike, lock-out, fire, but excludes any events which could have been avoided by a party taking reasonable steps or reasonable care.

GST means goods and services tax chargeable under the Goods and Services Tax Act 1985.

Initial Term means the initial term of this Agreement as stated in the Key Details.

Intellectual Property Rights includes copyright, and all rights conferred under statute, common law or equity in relation to inventions (including patents), registered and unregistered trademarks, registered and unregistered designs, circuit layouts, confidential information, know-how, techniques, ideas, methodologies and all other rights resulting from intellectual activity, together with all rights, interest or licence in or to any of them. Intellectual Property has a corresponding meaning

Key Details means the specific details set out at the front of this Agreement.

Service Centre means the designated offices or depots of XOPT or its agents at the cities from time to time specified by XOPT.

Services means the services to be provided by XOPT to the Customer pursuant to this Agreement, as described in the Key Details and the Services Schedule(s).

Service Level means any service level in respect of the Services that is set out in a Services Schedule or Service Level Agreement.

Term means the Initial Term and includes all renewals of the Initial Term pursuant to clause 7.2.

Zero Day Exploit means a vulnerability of, or attack to, any software or service that is unknown, or that is known but a patch (including a workaround) or fix has not yet been developed, by the service provider, software licensor or XOPT (as applicable).

12.2 In this Agreement, unless the context requires otherwise:

(a) a reference to any law includes all regulations made under and amendments to that law and any law passed in substitution for that law or incorporating any of its provisions to the extent that they are incorporated;

(b) headings are for convenience only and do not affect the interpretation of the Agreement;

(c) a reference to a clause refers to a clause of these General Terms and Conditions, unless otherwise stated;

(d) use of the words “including", "include", "in particular" or any similar expression must be construed as illustrative and without limitation;

(e) all amounts are expressed in New Zealand dollars unless expressly stated otherwise;

(f) the singular includes the plural and vice versa; and

(g) the word “person” includes a natural person and any body or entity whether incorporated or not.