Implementation Services: These Implementation Terms and Conditions (Terms) apply to FL’s performance of the implementation services described in an Implementation Agreement (Implementation Services) signed, or otherwise assented to in writing, by FlexR Limited (FL) and the Master Client.

No license: These Terms do not provide the Master Client with a license to use FlexR, any Key Components or other output of the Implementation Services, except as contemplated by these Terms or the Implementation Agreement. Any license to use FlexR is contained in the Master Client Subscription Agreement and associated Master Client Terms and Conditions. Unless otherwise agreed in writing, the Master Client agrees to enter into the Master Client Subscription Agreement with effect from Go Live of the last Key Component (or last required output of the Implementation Services), with the Subscription Agreement details as specified in the Implementation Agreement.

Agreement: The Master Client agrees to purchase, and FL agrees to supply, the Implementation Services on the terms in the Implementation Agreement and these Terms.

Relationship with Subscription Agreement: These Terms continue to apply to the Implementation Services, rather than those sections of the Master Client Subscription Agreement that relate to implementation.

Defined terms: In addition to terms defined in the Implementation Agreement or elsewhere in these Terms:

Key Component means a key part of the Implementation Services.

FlexR means the cloud-based software platform licensed by FL to its customers.

Implementation Fee means the price payable by the Master Client to FL for the Implementation Services, as set out in the Implementation Agreement.

Materials means the documentation on the FL website, FlexR Portal and/or FlexR App or as otherwise notified by FL (including by email), describing FlexR (including user guides, setup, configuration and troubleshooting) as amended by FL from time to time.

Working Day has the meaning set out in the Companies Act 1993, applicable for the Nelson region.

Conflicts: If these Terms conflict with any other agreement between the Master Client and FL, the other agreement prevails to the extent of the conflict.

Project plan: After both parties sign the Implementation Agreement, FL will prepare an estimated project plan dividing the Implementation Services into blocks of work (consistent with any stages/phases in the Implementation Agreement) with estimated timing for each block. FL may modify the plan at any time without notice, including the order of work and estimated timings. Timings are estimates only.

Performance: From the date the last party signs the Implementation Agreement, FL will implement the Master Client’s instance of FlexR and commence the Implementation Services.

Exclusions: Any items described as excluded in the Implementation Agreement are not included in the Implementation Services.

Assistance: The Master Client will provide all reasonable assistance, in a timely manner, to FL. Where responsibilities are assigned to the Master Client (as “Master Client commitments” or otherwise) in the Implementation Agreement, the Master Client will perform them within specified timeframes or, if unspecified, as soon as possible after FL’s request, and with due care and skill.

Notice on completion: FL will notify the Master Client when a Key Component is completed.

Acceptance testing: The parties will (acting reasonably) test the Key Components to ensure they comply with the Materials and any acceptance testing requirements in the Implementation Agreement (Acceptance Testing). Acceptance Testing may occur per Key Component, per stage/phase, or on completion of all Key Components, as specified. If both parties are satisfied, they will notify the other verbally or in writing (Acceptance or Accepted). The Implementation Services (and any Key Component) must not be put into production unless Accepted; any Implementation Services or Key Components put into production are deemed Accepted.

Other Key Components: At the time a Key Component is tested, other Key Components may be incomplete. Testing of a Key Component will be undertaken to the extent practicable.

Acceptance testing unsuccessful: If the Master Client (acting reasonably) is not satisfied that Acceptance Testing is successful, it must notify FL of the reasons. FL will use reasonable endeavours to resolve the issue so the Key Component or the Implementation Services comply with the Materials and the acceptance testing requirements, and Acceptance Testing will be repeated.

Continued failure: If three unsuccessful attempts at Acceptance Testing occur, either party may terminate the Implementation Services by written notice. In such case there is no refund of the Deposit and neither party will have any claim against the other.

Go live: If a Key Component is Accepted, go live for that Key Component occurs when it is implemented into the Master Client’s production version of FlexR (Go Live). If all Implementation Services are Accepted, Go Live occurs when the Implementation Services are implemented into production.

Training: FL will provide any training described in the Implementation Agreement, in accordance with its requirements.

Warranties: FL warrants that it (a) has the necessary tools, skills, training and expertise to carry out the Implementation Services; (b) will use Master Client data/information/materials only for an authorised purpose or in connection with performing the Implementation Services; (c) will perform the Implementation Services professionally and in accordance with FL’s standard operating procedures; (d) will only access Master Client sites, IT systems, networks, data and other locations reasonably required to perform the Implementation Services; and (e) will not knowingly introduce malware, viruses, worms, backdoors, logic/time bombs or other harmful code into the Master Client’s systems, hardware or networks.

Deposit: The Master Client will pay the deposit set out in the Implementation Agreement on signing (Deposit). The Deposit is part payment of the Implementation Fees. FL may terminate the Implementation Agreement if the Deposit is not paid within five Working Days after signing; neither party will have any claim as a result. The Deposit is non-refundable.

Invoice: FL will invoice the Deposit on signing. Unless the Implementation Agreement states otherwise, FL may invoice a proportionate part of the Implementation Fee (less the Deposit) on Go Live of each Key Component, or, on Go Live of the last Key Component, any uninvoiced part. FL may consolidate amounts payable under these Terms with amounts payable under any other agreement (e.g., a Master Client Subscription Agreement) into a single invoice.

Payment: Unless otherwise set out in the Implementation Agreement, each invoice is payable within ten Working Days after the invoice date.

Method: Payments must be made in cleared funds, without deduction or set-off, to FL’s nominated bank account with the applicable reference number, in the currency specified on the invoice.

GST: All amounts payable (including the Implementation Fee) are exclusive of, and plus, GST.

If the Master Client fails to pay by the due date or is otherwise in breach, FL may, without prejudice to other rights and remedies, do any one or more of the following:

1. suspend or terminate (in whole or part) the Implementation Services, or terminate any other agreement with the Master Client, by written notice;
2. charge interest at 18% per annum, calculated daily from the due date until payment in full;
3. enforce any security held; and
4. take legal action to recover amounts (including interest), appoint a collections agent or other third party; all associated costs and expenses (including solicitor–client costs) are payable by the Master Client.

Grant: To secure payment of the Implementation Fee and other obligations under these Terms, the Master Client grants FL a security interest over all present and after-acquired property (Collateral).

Cooperation and waiver: If required by FL, the Master Client will: (a) co-operate in good faith to execute documents required to register a security interest in favour of FL on the Personal Property Securities Register and protect FL’s interest in the Collateral; and (b) waive any right to receive a copy of the verification statement under section 148 of the Personal Property Securities Act 1999.

Confidentiality: All intellectual property and other information belonging to the parties that is designated confidential or is by its nature confidential is Confidential Information. Confidential Information includes Master Client data but excludes information that is or becomes public (through no fault of the receiving party).

Disclosure: Neither party will, without prior written consent of the other, use or disclose Confidential Information to any third party except as reasonably required to perform obligations under these Terms, or as required by law or a Court of competent jurisdiction.

Ownership: FL (or its third-party licensors) owns the intellectual property rights in FlexR, the Key Components and the Implementation Services (and any output). The Master Client retains ownership of Master Client data at all times.

Use: The Master Client must not copy, reproduce, translate, adapt, vary, decompile, modify or disseminate the Confidential Information to a third party or do anything to damage or endanger FL’s (or any third party’s) intellectual property rights.

Backup: The Master Client confirms it has backed up its data before providing/making it available to FL. Notwithstanding anything else, FL will not be liable for any loss of Master Client data.

The Master Client indemnifies FL against all liabilities, costs (including solicitor-client costs), losses, claims, expenses or demands incurred by FL or any third party arising out of or incidental to the Master Client’s non-compliance with these Terms, and from any third-party claims arising out of or incidental to the supply/performance of the Implementation Services, or any claim that provision of Master Client data to FL breaches third-party rights.

Restricted liability: FL will not be liable to the Master Client for any indirect or consequential loss, loss of profit, bargain or business opportunity, exemplary damages, or loss of data, whether arising from pre-contractual misrepresentation, breach of these Terms, or otherwise, and whether in contract, tort (including negligence), equity or otherwise.

Liability cap: In the event FL is found liable in connection with these Terms, FL’s aggregate liability is limited to $30,000 (without limiting the Master Client’s obligation to pay the Implementation Fee).

No warranty: FL does not warrant that any specific results, outcomes or performance can be achieved or expected from the Implementation Services. Except as expressly set out in these Terms, the Implementation Services are provided “as is”, without any other guarantees, warranties, conditions or representations (whether express, implied by law, trade custom or otherwise), including as to quality, merchantability, suitability for purpose or otherwise.

Exclusion of implied warranties: The Master Client acknowledges it is in trade and acquiring the Implementation Services for a business purpose. The implied terms, guarantees, covenants and conditions in the Contract and Commercial Law Act 2017, Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1993 do not apply and are excluded to the fullest extent permitted by law.

Termination with cause: Either party may immediately terminate the Implementation Agreement by written notice if: (a) the other party commits a material breach that is capable of remedy and is not remedied to the notifying party’s satisfaction within 20 Working Days of written notice; (b) the other party commits a material breach not reasonably capable of remedy; or (c) the other party enters administration, receivership or liquidation, has a statutory manager appointed, is struck off, appears insolvent, or is unable to pay due debts.

Effect of expiry or termination: Except where otherwise expressly set out, termination is without prejudice to rights/obligations existing at termination. On termination or expiry: (a) FL will cease the Implementation Services; (b) FL may terminate the Master Client Subscription Agreement (including if already signed) by written notice; (c) except where termination occurs under clauses 3.9 or 4.1, FL will determine (acting reasonably) the proportion of Implementation Services reasonably completed, and apply that proportion to the Implementation Fees (Proportionate Fee). If the Proportionate Fee exceeds the Deposit, FL may issue a Final Invoice for the excess; if less, there is no refund of the Deposit; (d) the Master Client shall immediately pay all outstanding monies, including any Final Invoice; (e) provided payment under (d) is made, FL will make the Master Client data available for collection or download for 30 days after termination/expiry, after which FL may permanently delete it; (f) each party will cease to use the other party’s Intellectual Property and Confidential Information; and (g) each party will permanently destroy electronic copies of the other party’s Intellectual Property or Confidential Information, except for automated backups generally inaccessible to personnel or where retention is required by law.

The parties will endeavour to resolve any disputes relating to these Terms and the Implementation Services cooperatively in the first instance, before seeking Court resolution.

Governing Law: These Terms are governed by New Zealand law and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.

Notices: Notices are sufficiently given if posted or successfully emailed to the intended recipient’s last known address; for FL this is [email protected]. The Master Client will notify FL in writing of any changes to its contact details.

Variation: Variations must be in writing and signed by each party.

Assignment: The Master Client must not assign/transfer/encumber its rights or obligations under these Terms without FL’s prior written consent. FL may at any time assign/transfer/encumber or subcontract any of its rights/obligations to a third party.

Force majeure: FL is not liable for delay or failure to perform obligations where the failure is beyond FL’s reasonable control.

Waiver: A waiver is not effective unless in writing and signed by the waiving party.

Survivorship: Termination does not affect rights and obligations intended to survive termination.

No relationship: These Terms do not create any partnership, employment, agency or joint venture relationship.

Circumvent: The Master Client shall not circumvent, or attempt to circumvent, these Terms.

Severability: If any part of these Terms is unenforceable or conflicts with applicable law, it will be replaced with a valid provision that most closely achieves the original business purpose, and the remainder will remain binding.

Entire Agreement: The Implementation Agreement constitutes the entire agreement and supersedes all prior discussions, representations and agreements on its subject matter.

Counterparts: The Implementation Agreement may be executed in counterparts (including email copies) which together constitute one document.

Electronic signatures: A party may sign the Implementation Agreement by applying that party’s electronic signature in accordance with Part 4 of the Contract and Commercial Law Act 2017.