Debtor Daddy – Terms & Conditions

  1. Date

    1. May 25, 2018
  1. Parties

    1. Debtor Daddy Limited, a company incorporated in New Zealand (registration number 9429030796034) having its registered office at Frank Accounting Limited, 7 Windsor Street, Parnell, Auckland, 1052 , New Zealand (the "Provider"); and
    2. The "Customer" means the person or entity who registers to use the Vend Service by creating a Vend account. If an individual creates an account on behalf of their employer, then the employer will be deemed to be the Customer, and will be bound by these Terms.
  1. Agreement

    1. Definitions

    2. In this Agreement, except to the extent expressly provided otherwise:
      1. "Account" means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;
      2. "Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
      3. "Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;
      4. "Business Day" means any weekday other than a bank or public holiday in New Zealand;
      5. "Business Hours" means the hours of 08:30 to 17:30 NZT on a Business Day;
      6. "Charges" means the following amounts:
        1. such amounts as may be agreed in writing by the parties from time to time; and
        2. amounts calculated by multiplying the Provider's standard time-based charging rates (as notified by the Provider to the Customer before the date of this Agreement) by the time spent by the Provider's personnel performing the Support Services (rounded down by the Provider to the nearest quarter hour);
      7. "Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);
      8. "Customer Confidential Information" means:
        1. any information disclosed by or on behalf of the Customer to the Provider during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
          1. was marked or described as "confidential"; or
          2. should have been reasonably understood by the Provider to be confidential; and
        2. the Customer Data;
      9. "Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;
      10. "Customer Indemnity Event" has the meaning given to it in Clause 16.3;
      11. "Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement;
      12. "Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);
      13. "Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
      14. "Effective Date" means the date of execution of this Agreement;
      15. "Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
      16. "Hosted Services" means Debtor Daddy software and services, as specified in the Hosted Services Specification, which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;
      17. "Hosted Services Specification" means the specification for the Platform and Hosted Services set out in Part 2 of Schedule 1 (Hosted Services particulars) and in the Documentation;
      18. "Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
      19. "Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
      20. "Personal Data" has the meaning given to it in the Data Protection Laws applicable in New Zealand from time to time;
      21. "Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
      22. "Provider Indemnity Event" has the meaning given to it in Clause 16.1;
      23. "Schedule" means any schedule attached to the main body of this Agreement;
      24. "Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
      25. "Set Up Services" means the configuration, implementation and integration of the Hosted Services in accordance with Part 1 of Schedule 1 (Hosted Services particulars);
      26. "Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
      27. "Supported Web Browser" means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
      28. "Term" means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
      29. "Update" means a hotfix, patch or minor version update to any Platform software; and
      30. "Upgrade" means a major version upgrade of any Platform software.
    1. Term

    2. This Agreement shall come into force upon the Effective Date.
    3. This Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 19 or any other provision of this Agreement.
    1. Set Up Services

    2. The Provider may at their sole discretion provide the Set Up Services to the Customer.
    3. The Customer acknowledges that a delay in the Customer performing its obligations in this Agreement may result in a delay in the performance of the Set Up Services; and subject to Clause 17.1 the Provider will not be liable to the Customer in respect of any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under this Agreement.
    4. Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services by the Provider shall be the exclusive property of the Provider.
    1. Hosted Services

    2. The Platform will automatically generate an Account for the Customer on the Effective Date and will provide to the Customer login details for that Account.
    3. The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.
    4. The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
      1. the Hosted Services may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer; and
      2. the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in Schedule 1 (Hosted Services particulars), providing that the Customer may add or remove concurrent user licences in accordance with the procedure set out therein.
    5. Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
      1. the Customer must not sub-license its right to access and use the Hosted Services;
      2. the Customer must not permit any unauthorised person to access or use the Hosted Services;
      3. the Customer must not use the Hosted Services to provide services to third parties;
      4. the Customer must not republish or redistribute any content or material from the Hosted Services; and
      5. the Customer must not make any alteration to the Platform, except as permitted by the Documentation.
    6. The Customer shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an Account.
    7. The parties acknowledge and agree that this Agreement shall govern the availability of the Hosted Services.
    8. The Customer must comply with Schedule 2 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an Account comply with Schedule 2 (Acceptable Use Policy).
    9. The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
    10. The Customer must not use the Hosted Services:
      1. in any way that is unlawful, illegal, fraudulent or harmful; or
      2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
    11. For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
    12. The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
    1. Maintenance Services

    2. The Provider shall provide the Maintenance Services to the Customer during the Term.
    3. The Provider shall provide the Maintenance Services with reasonable skill and care.
    4. The Provider shall provide the Maintenance Services in accordance with Schedule 3 (Maintenance SLA).
    5. The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.
    1. Support Services

    2. The Provider shall provide the Support Services to the Customer during the Term.
    3. The Provider shall provide the Support Services with reasonable skill and care.
    4. The Provider shall provide the Support Services in accordance with Schedule 4 (Support SLA).
    5. The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
    1. Customer obligations

    2. Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:
      1. co-operation, support and advice; and
      2. information and documentation,
      as are reasonably necessary to enable the Provider to perform its obligations under this Agreement.
    3. The Customer must provide to the Provider, or procure for the Provider, such access to the Customer's computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under this Agreement.
    1. Customer Data

    2. The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement, subject always to any express restrictions elsewhere in this Agreement.
    3. The Customer warrants to the Provider that the Customer Data when used by the Provider in accordance with this Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
    4. The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.
    1. No assignment of Intellectual Property Rights

    2. Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
    1. Charges

    2. The Customer shall pay the Charges to the Provider in accordance with this Agreement.
    3. If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 10.2.
    4. All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.
    5. The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days' written notice of the variation.
    1. Payments

    2. The Provider shall issue invoices for the Charges to the Customer from time to time during the Term.
    3. The Customer must pay the Charges to the Provider within the period of 7 days following the receipt of an invoice issued in accordance with this Clause 11.
    4. The Customer must pay the Charges by credit card (using such payment details as are notified by the Provider to the Customer from time to time).
    1. Provider's confidentiality obligations

    2. The Provider must:
      1. keep the Customer Confidential Information strictly confidential;
      2. not disclose the Customer Confidential Information to any person without the Customer's prior written consent;
      3. use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
      4. act in good faith at all times in relation to the Customer Confidential Information; and
      5. not use any of the Customer Confidential Information for any purpose other than providing the Services to the Customer.
    3. Notwithstanding Clause 12.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
    4. This Clause 12 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
      1. is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
      2. is or becomes publicly known through no act or default of the Provider; or
      3. is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
    5. The restrictions in this Clause 12 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
    6. The provisions of this Clause 12 shall continue in force indefinitely following the termination of this Agreement.
    1. Data protection

    2. Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
    3. The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
    4. The Provider shall only process the Customer Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 13.
    5. The Provider shall only process the Customer Personal Data on the documented instructions of the Customer (including with regard to transfers of the Customer Personal Data to any place outside the European Economic Area), as set out in this Agreement or any other document agreed by the parties in writing.
    6. The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
    7. Notwithstanding any other provision of this Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
    8. The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
    9. The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.
    10. The Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer. In the case of a general written authorisation, the Provider shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Customer may terminate this Agreement on 30 days' written notice to the Provider, providing that such notice must be given within the period of 7 days following the date that the Provider informed the Customer of the intended changes. The Provider shall ensure that each third party processor is subject to equivalent legal obligations as those imposed on the Provider by this Clause 13.
    11. The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.
    12. The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Provider shall report any Personal Data breach relating to the Customer Personal Data to the Customer within 72 hours following the Provider becoming aware of the breach.
    13. The Provider shall make available to the Customer all information necessary to demonstrate the compliance of the Provider with its obligations under this Clause 13 and the Data Protection Laws.
    14. The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
    15. The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider's processing of Customer Personal Data with the Data Protection Laws and this Clause 13. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 13.14.
    16. If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.
    1. Warranties

    2. The Provider warrants to the Customer that:
      1. the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
      2. the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement; and
      3. the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
    3. The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
    4. All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
    1. Acknowledgements and warranty limitations

    2. The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
    3. The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
    4. The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
    1. Indemnities

    2. The Provider shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any breach by the Provider of this Agreement (a "Provider Indemnity Event").
    3. The Customer must:
      1. upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;
      2. provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;
      3. allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and
      4. not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider,
      without prejudice to the Provider's obligations under Clause 16.1.
    4. The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of this Agreement (a "Customer Indemnity Event").
    5. The Provider must:
      1. upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;
      2. provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;
      3. allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and
      4. not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer,
      without prejudice to the Customer's obligations under Clause 16.3.
    6. The indemnity protection set out in this Clause 16 shall be subject to the limitations and exclusions of liability set out in this Agreement.
    1. Limitations and exclusions of liability

    2. Nothing in this Agreement will:
      1. limit or exclude any liability for death or personal injury resulting from negligence;
      2. limit or exclude any liability for fraud or fraudulent misrepresentation;
      3. limit any liabilities in any way that is not permitted under applicable law; or
      4. exclude any liabilities that may not be excluded under applicable law.
    3. The limitations and exclusions of liability set out in this Clause 17 and elsewhere in this Agreement:
      1. are subject to Clause 17.1; and
      2. govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
    4. The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
    5. The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings.
    6. The Provider shall not be liable to the Customer in respect of any loss of revenue or income.
    7. The Provider shall not be liable to the Customer in respect of any loss of use or production.
    8. The Provider shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.
    9. The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software; providing that this Clause 17.8 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 8.3 and REFERENCE TARGET REMOVED.
    10. The Provider shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
    1. Force Majeure Event

    2. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
    3. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
      1. promptly notify the other; and
      2. inform the other of the period for which it is estimated that such failure or delay will continue.
    4. A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
    1. Termination

    2. The Provider may terminate this Agreement by giving to the Customer not less than 30 days' written notice of termination, expiring at the end of any calendar month. The Customer may terminate this Agreement by giving to the Provider not less than 30 days' written notice of termination, expiring at the end of any calendar month.
    3. Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
      1. the other party commits any material breach of this Agreement, and the breach is not remediable;
      2. the other party commits a material breach of this Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 60 days following the giving of a written notice to the other party requiring the breach to be remedied; or
      3. the other party persistently breaches this Agreement (irrespective of whether such breaches collectively constitute a material breach).
    4. Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
      1. the other party:
        1. is dissolved;
        2. ceases to conduct all (or substantially all) of its business;
        3. is or becomes unable to pay its debts as they fall due;
        4. is or becomes insolvent or is declared insolvent; or
        5. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
      2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
      3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or
      4. if that other party is an individual:
        1. that other party dies;
        2. as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
        3. that other party is the subject of a bankruptcy petition or order.
    5. The Provider may terminate this Agreement immediately by giving written notice to the Customer if:
      1. any amount due to be paid by the Customer to the Provider under this Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
      2. the Provider has given to the Customer at least 30 days' written notice, following the failure to pay, of its intention to terminate this Agreement in accordance with this Clause 19.4.
    6. The rights of termination set out in this Agreement shall not exclude any rights of termination available at law.
    1. Effects of termination

    2. Within 30 days following the termination of this Agreement for any reason:
      1. the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and
      2. the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement,
      without prejudice to the parties' other legal rights.
    1. Subcontracting

    2. Subject to any express restrictions elsewhere in this Agreement, the Provider may subcontract any of its obligations under this Agreement, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.
    3. The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
    4. Notwithstanding the provisions of this Clause 21 but subject to any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
    1. No waivers

    2. No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
    3. No waiver of any breach of any provision of this Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of this Agreement.
    1. Severability

    2. If a provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
    3. If any unlawful and/or unenforceable provision of this Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
    1. Third party rights

    2. This Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.
    3. The exercise of the parties' rights under this Agreement is not subject to the consent of any third party.
    1. Variation

    2. This Agreement may not be varied except in accordance with this Clause 25.
    3. This Agreement may be varied by means of a written document signed by or on behalf of each party.
    4. The Provider may vary this Agreement by giving to the Customer at least 14 days' written notice of the proposed variation, providing that if the Provider gives to the Customer a notice under this Clause 25.3, the Customer shall have the right to terminate this Agreement by giving written notice of termination to the Provider at any time during the period of 7 days following receipt of the Provider's notice.
    1. Entire agreement

    2. The main body of this Agreement and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
    3. Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.
    4. The provisions of this Clause 26 are subject to Clause 17.1.
    1. Law and jurisdiction

    2. This Agreement shall be governed by and construed in accordance with New Zealand law.
    3. Any disputes relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of New Zealand.
  1. Schedule 1 (Hosted Services particulars)

    1. Set Up Services

    2. Set Up Services include configuration of the included software and services. This does not include the addition or customisation of new features or requirements.
    1. Specification of Hosted Services

    2. Hosted Services includes the software and services offered by the Provider accessible via supported web browsers (Google Chrome, Internet Explorer, Mozilla) versions no more than 12 months old. The Hosted Services are hosted on Amazon Web Services (AWS), located in Australia.
  1. Schedule 2 (Acceptable Use Policy)

    1. Introduction

    2. This acceptable use policy (the "Policy") sets out the rules governing:
      1. the use of the website at [https://debtordaddy.com and its subdomains], any successor website, and the services available on that website or any successor website (the "Services"); and
      2. the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
    3. References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to Debtor Daddy (and "we" and "our" should be construed accordingly).
    4. By using the Services, you agree to the rules set out in this Policy.
    1. General usage rules

    2. You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
    3. You must not use the Services:
      1. in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
      2. in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
    4. You must ensure that all Content complies with the provisions of this Policy.
    1. Unlawful Content

    2. Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
    3. You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
    1. Etiquette

    2. Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
    3. Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
    4. Content must not be liable to cause annoyance, inconvenience or needless anxiety.
    5. You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
    6. You must not use the Services for the purpose of deliberately upsetting or offending others.
    7. You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
    8. You must ensure that Content does not duplicate other content available through the Services.
    9. You must ensure that Content is appropriately categorised.
    10. You should use appropriate and informative titles for all Content.
    11. You must at all times be courteous and polite to other users of the Services.
    1. Marketing and spam

    2. You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.
    3. Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
    4. You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.
    5. You must not use the Services to promote, host or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, multi-level marketing schemes, "get rich quick" schemes or similar letters, schemes or programs.
    6. You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.
    1. Regulated businesses

    2. You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
    1. Monitoring

    2. You acknowledge that we may actively monitor the Content and the use of the Services.
    1. Data mining

    2. You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
    1. Hyperlinks

    2. You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
    1. Harmful software

    2. The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
    3. The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
  1. Schedule 3 (Maintenance SLA)

    1. Introduction

    2. This Schedule 3 sets out the service levels applicable to the Maintenance Services.
    1. Scheduled Maintenance Services

    2. The Provider shall where practicable give to the Customer at least 7 Business Days' prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider's other notice obligations under this Schedule 3.
  1. Schedule 4 (Support SLA)

    1. Introduction

    2. This Schedule 4 sets out the service levels applicable to the Support Services.
    1. Helpdesk

    2. The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this Schedule 4.
    3. The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
    4. The Provider shall ensure that the helpdesk is accessible by email and using the Provider's web-based ticketing system.
    5. The Provider shall ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term.
    6. The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.
    1. Provision of Support Services

    2. The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.
    1. Limitations on Support Services

    2. If the total hours spent by the personnel of the Provider performing the Support Services during any calendar month exceed 1 day then:
      1. the Provider will cease to have an obligation to provide Support Services to the Customer during the remainder of that period; and
      2. the Provider may agree to provide Support Services to the Customer during the remainder of that period, but the provision of those Support Services will be subject to additional Charges.
    3. The Provider shall have no obligation to provide Support Services in respect of any issue caused by:
      1. the improper use of the Hosted Services by the Customer; or
      2. any alteration to the Hosted Services made without the prior consent of the Provider.