Definitions: For the purposes of this Agreement:

Additional Services means services of any sort, requested by the Master Client and performed or agreed to be performed by FL, from time to time, that relate to FlexR but are not included within the Monthly Subscription Fee, and includes without limitation Further Training, consulting or other customisation work in relation to FlexR. Additional Services must be agreed in writing by FL and the Master Client and may be subject to further terms and conditions.

Administrators means those employees or independent contractors of the Master Client that have been authorised and designated by the Master Client to have administrator level rights in relation to the Master Client’s and the Customers use of FlexR (provided that such rights have not been terminated, suspended or revoked).

Agreement means the FlexR Subscription Agreement, together with these Master Client Terms and Conditions, the FlexR Terms of Use and all referenced documents therein.

Anniversary Date means the anniversary of the Go Live Date in a particular year.

Customer means any bona fide customer or financial member of the Master Client, that has signed a sublicence in respect of FlexR access and use as contemplated by clause 4.4. 

Customer Data has the meaning set out in clause 6.1.

Customer Users means those Customer employees and independent contractors that are authorised to access and use FlexR by the Customer, and that have been granted FlexR access and use rights by an Administrator (provided that such rights have not been terminated or revoked). 

Data means all data that is uploaded into, or otherwise related to, FlexR, including without limitation:

1. Customer Data;
2. Master Client Data; and
3. all data associated with the operation, performance and use of FlexR, including without limitation, all analytical information regarding FlexR usage, pump pricing of fuel, and other data in relation to the purchase of goods and services associated with FlexR.

Fees means all fees payable pursuant to this Agreement, including without limitation the Implementation Fee, Monthly Subscription Fee, Initial Training Fee and fees for Additional Services.

FlexR means the cloud-based software platform licensed by FL, including the base functionality, as further described in the Materials and in Schedule One. FlexR includes the FlexR Modules (if any). Subject to clause 8.2, FlexR includes any modifications, amendments or improvements to FlexR made as part of the Services.

FlexR Modules means a bundle of software functionality, that operates in conjunction with and extends the base functionality of, FlexR, and are described in Schedule One. Each available FlexR Module is further described in the Materials.

Force Majeure Event means a fire, flood, tsunami, storm, tempest, earthquake or other act of God, nature, contamination, war or government, any civil disturbance, labour disruption, pandemic, epidemic or any other cause reasonably beyond the control of a party.

FlexR Terms of Sale means the terms and conditions available at www.flexr.co.nz/termsofsale.

FlexR Terms of Use means the FlexR Terms of Use, available at www.flexr.co.nz/termsofuse.

FlexR Subscription Agreement means the agreement with this name, signed by the Master Client and FL.

FlexR Master Client Terms and Conditions means these terms and conditions, available at www.flexr.co.nz/legal

Further Training means any training other than Initial Training, provided by FL to the Administrators, at times mutually agreed by the parties.

Go Live Date means the date notified by FL pursuant to clause 2.3.

Implementation Fee has the meaning set out in Schedule One.

Implementation Services has the meaning set out in clause 2.1.

Included Support Hours means the hours of support specified in Schedule One that are included within the Monthly Subscription Fee.

Initial Subscription Term means the period identified as such in Schedule One, which shall commence from the Go Live Date, provided that the Master Client has paid the Implementation Fee. If the Master Client has not paid the Implementation Fee on or prior to the Go Live Date, then the commencement of the Initial Subscription Term shall be suspended until the Implementation Fee is so paid, provided that the expiry date of the Initial Subscription Term shall not be extended to reflect such suspension.

Initial Training means Initial Training as set out in Schedule One, provided by FL to the Administrators, on or about the Go Live Date.

Initial Training Fee has the meaning set out in Schedule One.

Intellectual Property means, all intellectual and industrial property rights and interests (including common law rights and interests) including, without limitation, trade marks, applications for trademarks, trade name(s), know-how, being technical and other information or experience or trade secrets, designs, whether or not registered or protected by copyright, patents and applications for patents, copyright material, and any other intellectual property rights.

Litre means each litre of fuel (or part thereof) that is purchased using a fuel card that has been procured by the Master Client or the Customer via FlexR.

Maintenance means patches, bug fixes, updates and upgrades implemented by FL as part of FlexR’s maintenance programme, but excludes the provision of any customised functionality provided as part of Additional Services (including any patches, bug fixes, updates or upgrades thereto) and any new FlexR Modules that FL may release from time to time pursuant to clause 8.2.

Master Client means the master client identified in the FlexR Subscription Agreement.

Master Client Data has the meaning set out in clause 6.1.

Master Client Users means those Master Client employees and independent contractors that have been authorised to access and use FlexR by the Master Client and been granted FlexR access and use rights by an Administrator (provided that such rights have not been terminated, suspended or revoked).

Materials means the documentation set out on the FL website, which sets out the description of FlexR, and other FlexR related information, including without limitation in relation to users, setup, configuration and troubleshooting in relation to FlexR, which may be amended and updated from time to time by FL.

Minimum Monthly Subscription Fee has the meaning set out in Schedule One.

Monthly Subscription Fee means an amount calculated by multiplying the Monthly Subscription Fee per Litre as set out in Schedule One by the total aggregate number of Litres processed by FlexR in respect of the Master Client, Customer and all Users, during that month, provided that the Monthly Subscription Fee shall not be less than the Minimum Monthly Subscription Fee set out in Schedule One. The Monthly Subscription Fee includes Included Support Hours.

Renewed Subscription Term means any renewal of the Initial Subscription Term that has effect pursuant to clause as set out in clause 3.2.

Schedule One means Schedule One attached to the FlexR Subscription Agreement.

Services means any services provided by FL pursuant to this Agreement, including without limitation as part of Support, Maintenance, Initial Training and Additional Services.

Subscription Term means the Initial Subscription Term and any Renewed Subscription Term.

Support means the provision of support, provided to Administrators by FL by email or phone, in relation to the use of FlexR, as further described (and subject to the limitations and exclusions set out in) in the Materials. Support will be provided by FL’s consultants or subcontractors. Support excludes Maintenance, Initial Training and Additional Services.

Users means the Administrators, Master Client Users and Customer Users.

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

Working Hours are between the hours of 9am and 5pm on Working Days.

References: In this Agreement, unless the context requires otherwise, or specifically stated, reference to:

1. the plural includes reference to the singular, and vice versa;
2. words importing one gender includes all genders;
3. any law, legislation, or legislative provision includes any statutory modification, amendment, or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision whether before or after the date of this Agreement; 
4. any agreement will include any agreement which amends or replaces it;
5. reference to a party, person(s) or entity includes without limitation:
1. means a reference to any natural or artificial person and includes an individual, company, body corporate, association of persons (whether corporate or not), trust, state or agency of a state, or other entity, in each case whether or not having separate legal personality; and
2. an employee, agent, successor, permitted assigns, executor, administrator and other representative of such party, person or entity;
6. any clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this Agreement; 
7. times or a time of day are references to New Zealand times; and
8. dollars, NZD and $ means New Zealand Dollars.

Headings: Headings inserted in this Agreement are for convenience of reference only and do not affect the interpretation of this Agreement.

No Contra Preferentem Rule: None of the terms nor any of the parts of this Agreement are to be construed against a party, by reason of the fact that a term or part was first proposed or was drafted by that party.

Conflict: If there is any conflict between the following documents, they shall have the following order of precedence:

1. Schedule One (with the highest order of precedence); then
2. these FlexR Master Client Terms and Conditions; then
3. the FlexR Terms of Use; then
4. FlexR Terms of Sale; then
5. FlexR Privacy Policy; then
6. the Materials (with the lowest order of precedence).

Implementation: From the date that the last party signs this Agreement, FL shall implement the Master Client’s instance of FlexR, migrate the Master Client’s data to FlexR (if any), configure FlexR in accordance with the requirements of Schedule One, and notify the Master Client once completed (Implementation Services).

Acceptance testing: When FL notifies the Master Client that the Implementation Services have been completed, FL and the Master Client shall test FlexR to ensure that it complies with the Materials and the acceptance testing requirements set out in Schedule One (Acceptance Testing). If both parties are satisfied that the Acceptance Testing has been successfully completed, both parties shall notify the other in writing (Acceptance). If the Master Client is not satisfied that the Acceptance Testing is successful, then they must notify FL of the reasons why, and FL shall use reasonable endeavours to resolve the issue, so FlexR complies with the Materials and the Acceptance Testing requirements set out in Schedule One, and the Acceptance Testing shall be undertaken by the parties again. This process shall repeat until either Acceptance is reached, or one party notifies the other in writing that this Agreement is terminated. If terminated, this Agreement shall be at an end, and the Master Client shall only be liable to pay 50% of the Implementation Fee (Discounted Implementation Fee). Where the Master Client has paid more than Discounted Implementation Fee, FL shall refund any excess, and where the Master Client has paid less than the Discounted Implementation Fee, the Master Client will pay any remaining amount to FL. Other than relating to the enforcement and collection of the payments described in this clause, neither party shall have any claim against the other.

Go live: On Acceptance, FL will notify the Master Client in writing of the Go Live Date.

Training: After the Go Live Date, FL shall provide the Initial Training described in Schedule One to the Administrators. The specific timing of the Initial Training shall be as set out in Schedule One, or where not agreed in Schedule One, as mutually agreed by the parties but it must be completed within 10 Working Days after the Go Live Date. If not used within such period, the right to receive the Initial Training shall expire.

Dates: Any dates set out in Schedule One, including without limitation, any commencement or completion dates relating to the Implementation Services, Acceptance Testing, or Go Live Date are estimates only and the Master Client shall have no claim against FL by reason of any delay in complying with such estimates.

Initial Term: Subject to earlier termination, this Agreement shall have effect from the date that the last party signs the Agreement, until the end of the Initial Subscription Term.

Renewal: Subject to earlier termination of this Agreement, the Initial Subscription Term shall automatically, and without notice, renew and continue to renew for periods of twelve months, provided that each renewal shall be subject to the Master Client having paid all Fees that have fallen due for payment immediately prior to the renewal taking effect, and the Master Client not having breached or being in breach of this Agreement immediately prior to the renewal taking effect. The Master Client may exit this Agreement at any time after the Initial Subscription Term for convenience by providing notice pursuant to clause 13.1.

Subscription: Subject to the Master Client’s payment of the Fees, FL grants to the Master Client:

1. the right to appoint a reasonable number of Administrators, and grants a non-exclusive licence for each of the appointed Administrators to access and use FlexR during the Subscription Term, subject to the FlexR Terms of Use;
2. a non-exclusive right for the Administrators to grant:
1. Master Client Users the right to access and use FlexR during the Subscription Term, subject to the terms and conditions of this Agreement and the FlexR Terms of Use; and
2. Customer Users the right to access and use FlexR during the Subscription Term, subject to the terms and conditions of this Agreement and the FlexR Terms of Use; and
3. the non-exclusive right for Users to access and use the Materials during the Subscription Term, in electronic form.

Administrators: The Master Client may appoint, replace or remove its Administrators from time to time by providing notice in writing to FL. Where a new Administrator is so appointed, the Master Client shall advise FL of their contact email address and cell phone number.

Users: The Master Client shall ensure that the Users comply with the terms and conditions of this Agreement and the FlexR Terms of Use, as if they were the Master Client.

Sublicensing: The Administrators may only grant access and use rights to Customer Users where the Master Client has entered into a written sublicence with the Customer on terms and conditions that are approved by FL in all respects. The Master Client may charge the Customer a fee to access and use FlexR. The sublicence shall ensure that each Customer and all Customer Users are bound by the FlexR Terms of Use, and that the Customer is responsible and liable to the Master Client for the acts and omissions of the Customer and all Customer Users.

Third party rights: The Master Client shall ensure that the Administrators do not grant any access or use rights to FlexR to any person that is not a Customer or Customer User.

FlexR purchases: FL and other third party vendors authorised by FL (Third Party Vendors) may offer goods and services for sale via FlexR from time to time. The sale and purchase of goods and services by FL (other than where FL are selling as an agent or on behalf of a Third Party Vendor) are subject to the FlexR Terms of Sale. The sale and purchase of goods and services by a Third Party Vendor (including where FL are selling those goods and services as an agent or on behalf of a Third Party Vendor) are subject to the Third Party Vendor’s terms and conditions of sale, a copy of which will be available (whether published or linked to) on FlexR (Terms of Sale). The Master Client may be permitted to resell such goods and services, subject to the FlexR Terms of Sale or Terms of Sale (as applicable). Payment will be required to be made by the Master Client to FL or the Third Party Vendor (as applicable) in accordance with the FlexR Terms of Sale or Terms of Sale (as applicable).

Acknowledgements: FL are not a party to, nor liable for, any transaction entered into by the Master Client and a Third Party Vendor. FL make no representation or warranty regarding the goods and/or services being sold via FlexR by Third Party Vendors (including where FL are selling as an agent or on behalf of a Third Party Vendor), including without limitation regarding quality, fitness for purpose, availability, ownership or otherwise, and all such matters are to be determined directly between the purchaser and Third Party Vendor. The Master Client acknowledges that FL may receive a rebate or commission as a result of the Master Client’s purchase of goods and/or services via FlexR.

Data ownership: FL shall retain ownership of all Data, except as follows:

1. the Master Client shall retain ownership of all data input into FlexR by or on behalf of the Master Client that relates to the Master Client, the Administrators, or any Master Client Users (Master Client Data); and
2. the Customer shall retain ownership of all data input into FlexR by or on behalf of the Customer that relates to the Customer and the Customer Users (Customer Data).

FlexR Data licence: The Master Client grants FL a worldwide, non-exclusive, royalty free license to use, modify, store, disclose and sublicense any and all Data, including without limitation any personal information, to the extent necessary to provide, update and improve FlexR, to supply any goods or services the Master Client or Customer has requested, and to comply with its obligations, and to enforce its rights, pursuant to this Agreement or at law.

Commercial use licence: The Master Client grants FL a worldwide, non-exclusive, royalty free license to use, modify, store, disclose and sublicense any and all Data, excluding any personal information that comprises part of the Master Client Data or Customer Data, for any commercial purpose.

Master Client ownership: If the Master Client for any reason does not own the Master Client Data licensed above, the Master Client must ensure that its right to use the Master Client Data is sufficiently broad to grant the licenses set out above and must also ensure that has sufficient use rights in respect of the Customer Data to grant the licenses set out above.

Notice: The Master Client must immediately notify FL in writing if it becomes aware of any unauthorised use of FlexR or breach of this Agreement or the FlexR Terms of Use.

Reports: FlexR may provide, and FL may collect, usage reports, analytics, and other information in relation to FlexR from time to time, including without limitation detecting a breach of this Agreement (Use Reports), and FlexR may include functionality that automatically provides Use Reports to FL without notice. In addition to the Use Reports, FL may without notice to the Master Client run analytics tools on FlexR, to determine whether the Master Client is using FlexR in compliance with this Agreement (Tools). FL shall own all Intellectual Property rights associated with the Use Reports and any outputs of the Tools.

Inspection: FL may on giving three Working Days’ notice in writing provided to the Master Client, but no more often than once every six months during the Subscription Term, attend (or appoint agents to attend) the Master Client’s premises (or any other location used by the Master Client) during normal working hours, to inspect, and take and remove copies of, all of the Master Client’s records, accounts and information relating to its use of FlexR, and to observe the Master Client’s use of FlexR, for the purpose of ensuring that the Master Client, Customer and all Users are complying with this Agreement (Audit). The Master Client shall provide reasonable access to its IT systems to FL as part of the Audit.

Rectification measures: If the User Reports, Tools or Audit reveals, or FL otherwise becomes aware, that the Master Client is or may be in breach of this Agreement, then FL may, without prejudice to any other right or remedy, do any one or more of the following:

1. invoice the Master Client for an amount that would have been payable if the Master Client was correctly licensed to use FlexR. Such invoice shall be paid by the Master Client within 3 Working Days of the Master Client’s receipt of such invoice; and/or
2. where the breach is minor, issue written notice to the Master Client setting out those measures that the Master Client must immediately take to rectify such breach (Rectification Measures), the Master Client shall immediately comply (to the satisfaction of FL) with such Rectification Measures, and provide evidence of such implementation and compliance to FL; and/or
3. issue notice of a material breach pursuant to clause 13.2(a) or 13.2(b).

Unauthorised FlexR amendments: The Master Client and Users are not to be permitted to perform or engage any third party to perform, any maintenance, repairs or otherwise modify FlexR without express written consent of FL (Unauthorised FlexR Amendments). If the Master Client attempts any Unauthorised FlexR Amendments, the warranties set out in clause 9.1 shall no longer apply, and repairs or other work required to be carried out by FL or any third parties to reverse any Unauthorised FlexR Amendments and to restore FlexR shall be chargeable at the then current Additional Services rates. FL shall have no liability for any loss or corruption of FlexR or any Data, where Unauthorised FlexR Amendments are carried out by any party other than FL or its nominated representative, or where such loss or corruption could have been avoided or corrected if the Master Client had retained backup copies.

FlexR Ownership: Subject to clause 7.2, all Intellectual Property rights in, to and associated with, FlexR (and all improvements and modifications) remain owned by FL and/or its licensors at all times.

Branding ownership: The Master Client shall retain ownership of all Intellectual Property rights in and to their branding and logo’s that are incorporated into FlexR.

Restrictions: The Master Client shall not:

1. use, modify or otherwise alter FL’s (or any licensor of FL’s) Intellectual Property, except as expressly permitted by this Agreement;
2. tamper with or remove any markings, patent numbers or other indication of the source of origin of FlexR placed on FlexR; or
3. damage or otherwise endanger FL’s Intellectual Property rights.

Infringement: The Master Client agrees:

1. not to cause or permit anything that may damage or endanger FL’s, or its licensors’, Intellectual Property, or ownership thereof;
2. to notify FL of any suspected infringement of FL’s, or its licensors’, Intellectual Property;
3. to take such reasonable action as FL may direct at the expense of FL in relation to such infringement;
4. to compensate FL for any use of FL’s, or its licensors’, Intellectual Property by the Master Client or any person associated with the Master Client or by any person through the instrumentality of the Master Client otherwise than in accordance with this Agreement; and
5. not to use FL’s, or its licensors’, Intellectual Property otherwise than as permitted by this Agreement.

Indemnity: The Master Client shall defend, indemnify and hold FL harmless from any and all liabilities, costs (including full costs between solicitor and client), claims and demands, made by any third party, arising out of or incidental to an allegation that the Data, or its incorporation or use within FlexR, misappropriates or infringes a third party’s intellectual property or privacy rights.

Maintenance: FL may perform Maintenance on or to FlexR from time to time. Such Maintenance may alter the functionality or operation of FlexR. FlexR may be unavailable while Maintenance is being performed. All Maintenance undertaken on FlexR will be performed by FL or its service provider(s)/subcontractors. FL will use reasonable endeavours to:

1. perform scheduled Maintenance on FlexR outside of Working Hours; and
2. provide a reasonable period of notice to the Master Client of any scheduled Maintenance required to be undertaken during Working Hours.

For the avoidance of doubt, Maintenance, whether scheduled or emergency, may notwithstanding this clause 8.1, be undertaken by FL at any time without notice.

New Modules: FL may, but is not obliged to, develop and release new FlexR Modules from time to time (Additional Modules). The Master Client may add Additional Modules to their FlexR Subscription Agreement by contacting FL. Such Additional Modules may be subject to additional terms and conditions, and an applicable additional module fee.

Access: For the avoidance of doubt, the Master Client is responsible to ensure a high speed, robust and reliable internet connection, with sufficient bandwidth, is available for Administrators and Master Client Users to connect to FlexR, at the Master Client’s cost, and shall ensure that it is using hardware and internet browser software that is sufficient to comply with the Materials.

Master Client Support: FL will use reasonable endeavours to provide Support which can be accessed by the Master Client by phone and email, during Working Hours, using the contact information set out in Schedule One.

Customer Support: Unless otherwise agreed by FL in writing, the Master Client shall ensure the Administrators provide the first line of support to Users. The Master Client and the Administrators shall not provide the Master Client User, Customer User or Customer with the FL Support contact information. If the Administrator is not able to resolve any support request within a reasonable period having used its best efforts to do so, the Administrator may place a request for Support with FL, and then the Administrator shall relay the necessary information to the User that has raised the support request with the Administrator.

Support Response times: FL will use reasonable endeavours to respond to any request for Support placed by an Administrator within the following timeframes:

Limited warranty: Subject to clause 9.2 and subject to the Master Client’s payment of all Fees, FL warrants that:

1. FlexR will operate substantially in accordance with the Materials for the Subscription Term;
2. the Materials will contain sufficient instruction and detail to enable the Master Client to make reasonable use of FlexR during the Subscription Term; and
3. its employees, agents and sub-contractors used in the provision of Services are reasonably skilled and experienced, and will perform the Services with due care and skill during the Subscription Term.

Warranty exclusions: FL does not warrant that:

1. FlexR is bug or error free. The existence of any bugs or errors will not constitute a breach of this Agreement;
2. FlexR will be compatible with other software or hardware;
3. any defects, whether notified or not, in FlexR will be corrected by FL;
4. FlexR will always be available, or that access or use will be uninterrupted;
5. FlexR will be secure, or free from viruses or other malicious software; or
6. FlexR will comply or continue to comply with applicable law.

Implied warranties: The Master Client agrees that it is in trade, and entering into this Agreement for a business purpose, and accordingly the parties agree that:

1. except as expressly set out in clause 9.1, FlexR, Services and any other goods and services provided by FL are supplied on an “as is” and “as available” basis, without any guarantee, warranty, condition or representations (whether express, implied by law, statute, trade custom or otherwise) including without limitation in relation to quality, merchantability, suitability or fitness for a particular purpose, ownership, title, non-infringement, or otherwise;
2. the Master Client acknowledges that by entering into this Agreement, it is relying on its own expertise, skill and judgement and that it is not relying on the expertise, skill, judgement or pre-contractual representation of FL;
3. 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 applicable law; and
4. this clause 9.3 is fair and reasonable in the circumstances, and that each party has had the opportunity to obtain independent legal advice in relation to this Agreement prior to signing.

Invoicing: FL will invoice the Master Client for the Fees as follows:

1. the Implementation Fee described in Schedule One will be invoiced as follows:
1. 50% in advance before the Implementation Services are commenced; and
2. 50% after Acceptance has occurred;
2. the Monthly Subscription Fee will be invoiced in arrears on a monthly basis during the Subscription Term; and
3. the Initial Training Fee will be invoiced on completion of the Initial Training; and
4. fees for Additional Services will be calculated in accordance with FL’s then current rate card, as may be updated from time to time, and will be invoiced as mutually agreed by the parties in writing, or where not so agreed, in advance.

Consolidated invoices: FL may consolidate any amounts payable by the Master Client to FL under this Agreement with any amounts payable by the Master Client to FL under any other agreement (for example but without limitation for goods and/or services purchased under the FlexR Terms of Sale), in a single invoice.

Payment: The Master Client shall pay each invoice issued by FL, in cleared funds without deduction or setoff, to FL’s nominated bank account:

1. if the invoice is issued on or prior to the 5th Working Day of that month, on or prior to the 20th day of the same month that the invoice is issued; or
2. if an invoice is issued after the 5th Working Day of a month, on or prior to the 20th day of the following month.

Direct debit authority: Where the Master Client has completed, signed and returned a direct debit authority to FL, FL may action direct debits for any amounts owed to FL in accordance with the that authority. Direct debit authorities are subject to the terms and conditions available at www.flexr.co.nz/direct-debit-terms.

Expenses: Expenses for vehicle travel that is required for FL to undertake Additional Services or Further Training shall be calculated on the basis of the then current IRD rate in addition to the applicable hourly rates for Additional Services. All expenses except vehicle travel are required to be pre-approved by the Master Client prior to being invoiced by FL.

GST: All Fees and other amounts payable pursuant to this Agreement are exclusive of and plus GST.

Disputed invoices: Notwithstanding clause 10.2, if the Master Client disputes any invoice, whether in full or in part, issued by FL, the Master Client shall pay any undisputed portion pursuant to clause 10.2, and notify FL as to the nature of the dispute regarding the unpaid balance. If the parties cannot reach resolution within 10 Working Days, either party may refer the matter for resolution pursuant to clause 14.

PPSA: To secure the Master Client’s payment and performance obligations owed to the Master Client pursuant to this Agreement, the Master Client grants a security interest (as defined in the Personal Property Securities Act 1999) over all of its present and after acquired property (Collateral) to FL.

Cooperation and waiver: The Master Client agrees to:

1. co-operate in good faith with FL to execute the documentation 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
2. waive any right to receive a copy of the verification statement, pursuant to section 148 of the Personal Property Securities Act 1999.

Default: If the Master Client fails to pay any amounts pursuant to this Agreement on or prior to the due date, or is otherwise in breach of this Agreement, FL may, in its sole discretion, without prejudice to and in addition to any other rights and remedies, do any one or more of the following:

1. suspend the Master Client’s access to, and delivery of, FlexR and Services (with the effect that the Master Client’s licences and other rights set out in clause 4.1 are suspended), suspend or cancel any order in relation to any additional goods and/or services including without limitation the Additional Services, and/or terminate (in whole or in part) this Agreement by providing notice to the Master Client;
2. charge interest at a rate of 1.5% per month on all amounts due but unpaid, calculated on a daily basis from the due date until FL receives payment in full including any interest so charged;
3. enforce the terms and conditions of this Agreement and/or any security (if any);
4. sue for infringement of FL’s Intellectual Property rights as a result of unlicensed use of FlexR; and/or
5. take legal action to recover the amounts owing, appoint a collections agent, receiver or other third party to collect the amounts owing, and all costs and expenses associated with such actions (including legal costs as between solicitor and client), shall be paid by the Master Client in addition to any other amount owing.

Non-refundable fees: Except where expressly specified in this Agreement, or as agreed by FL in writing, any Fees paid to FL are non-refundable, including without limitation on termination or expiry of this Agreement.

Fee review: FL may increase the Monthly Subscription Fee from time to time, by providing at least 40 Working Days’ notice in writing to the Master Client. FL may only increase the Monthly Subscription Fee once in any consecutive 12 month period, not during the Initial Subscription Term. For the avoidance of doubt, FL may update its rate card that applies for Additional Services at any time, without notice to the Master Client.

Confidentiality: All Intellectual Property, Data and other information belonging to the parties (including but not limited to this Agreement, FlexR and its operation and the Materials) which by designation or by its nature is intended to be treated as confidential will be confidential information for the purposes of this Agreement (Confidential Information).

Disclosure: No party will, without the prior written consent of the other party, make use of or disclose any Confidential Information to any third party, except:

1. to the extent necessary for FL to perform its obligations pursuant to this Agreement, including without limitation, disclosure to service providers, subcontractors, licensors, contractors and personnel;
2. to the extent contemplated by this Agreement; or 
3. as required pursuant to law or a Court of competent jurisdiction. 

No media statements: Neither party will make any statements to the media, or publish any material concerning this Agreement or the other party, without the prior written consent of the other party.

Privacy: The parties agree to comply with the Privacy Act 2020. The Master Client shall ensure that the Master Client, Customer and Users have all necessary permissions, consents and approvals to upload Data, including personal information contained within the Data, to FlexR and for that Data to be used as contemplated by this Agreement, and as set out in FL’s privacy policy. FL collects, stores, uses and discloses personal information (including without limitation that personal information included within any Data) in accordance with its privacy policy, the current version of which is available on the FL website. FL may update its privacy policy from time to time, by updating the version set out on the FL website. Details regarding the correction of personal information, contact details for FL’s privacy officer and other information are set out in FL’s privacy policy.

Suspected Identity Theft alert tools: FlexR may include functionality which allows for a Master Client to identify and alert to FL a Customer or Customer User or applicant for a trading relationship (as applicable), that has provided, or is likely to have provided, false information to the Master Client (Suspected Identity Theft Alert). A Master Client must not trigger the Suspected Identity Theft Alert unless:

1. it has reasonable grounds to believe that the relevant information is false; and
2. the Master Client has:
1. been expressly permitted by the Customer, Customer User or applicant (as applicable) to trigger the Suspected Identity Theft Alert; or
2. after using reasonable efforts, has not been able to contact the Customer, Customer User or applicant (as applicable) to obtain express permission to make such Suspected Identity Theft Alert.

Removal and availability: If further information becomes available to the Master Client and the Master Client no longer considers that false information has been provided, or was likely to have been provided, the Master Client must immediately remove the Suspected Identity Theft Alert. On a Suspected Identity Theft Alert being submitted, FL may notify some or all of its other trusted partners and other master clients that the Suspected Identity Theft Alert has been made, including the provision of identifying information in relation to the Customer, Customer User or applicant (as applicable, and which may include personal information), and FL is entirely relying on the Master Client to correctly trigger a Suspected Identity Theft Alert. If the Master Client receives a Suspected Identity Theft Alert, such report is Confidential Information, and FL provides no warranty as to the accuracy of such Suspected Identity Theft Alert

Electronic messages: The Master Client consents to receive electronic messages from FL that relate to this Agreement, goods and services offered by FL, direct marketing, credit checks and debt collection. The Master Client may opt out of receiving commercial electronic messages by notifying FL in writing, or utilising any unsubscribe facility.

Exclusion: Neither party shall be liable to the other party for any indirect loss, consequential loss, loss of profit, loss of bargain, loss of sales or turnover, loss of business opportunity, or exemplary damages suffered by the other party or any third party, whether resulting from any prior misrepresentation, breach of this Agreement, or other dispute arising out of this Agreement, whether contemplated by this Agreement or not, and whether actionable in contract, tort (including negligence), statute, equity or otherwise.

Data: Without limiting clause 12.1, FL shall not in any circumstance be liable for any loss of Data, any other data, or be liable for any loss, cost, expense or damage suffered or incurred by the Master Client, Customer, User or any third party as a result of loss or reconstitution of Data or any other data, whether caused by any defect, malfunction or non-performance of FlexR, the Services performed by FL, or otherwise.

Indemnity: Subject to clause 12.1, the Master Client shall indemnify FL in respect of all liabilities, costs (including full costs between solicitor and client), claims or demands made by any third party, arising out of or incidental to the Master Client’s breach of this Agreement.

Liability cap: In the event that, notwithstanding clause 12.1, FL is found liable for any damages, loss or liability in connection with this Agreement, such damages, loss and liability will, in aggregate in respect of all claims arising in relation to this Agreement, be limited to $20,000.

Termination without cause: Either party may terminate this Agreement, without cause, by providing twenty Working Days’ notice in writing to the other party, provided that termination of this Agreement pursuant to this clause shall not take effect during the Initial Subscription Term.

Termination with cause: A party may immediately terminate this Agreement by providing notice in writing to the other party if:

1. the other party commits a material breach of this Agreement that is capable of remedy, and such breach is not remedied to the satisfaction of the notifying party within 20 Working Days of receipt by the breaching party of written notice of such breach from the notifying party;
2. the other party commits a material breach of this Agreement, which is not reasonably capable of remedy;
3. the other party enters into administration, receivership or liquidation, has a statutory manager appointed, is struck off its register of incorporation, reasonably appears to be insolvent or is unable to pay its due debts; or
4. the other party commits three material breaches of this Agreement that have been notified pursuant to clause 13.2(a) and been remedied within a twelve month period, or FL issues three notices to the Master Client pursuant to clause 6.6(b) within any twelve month period.

Effect of expiry or termination: Termination of this Agreement shall be without prejudice to any rights and/or obligations of the parties existing at the time of termination. Upon the termination or expiry of this Agreement:

1. the Master Client, Customers and all User rights to access and use FlexR shall immediately terminate,  and all Users shall immediately cease use of FlexR;
2. all rights of the Master Client, Customers and Users to access and use the Materials, Services and FL’s (and its licensors) Intellectual Property rights shall immediately cease;
3. FL shall immediately cease the provision of all uncompleted Additional Services (if any);
4. FL may terminate the provision of any goods and services purchased by the Master Client via FlexR that have not been supplied in full as at the date of termination or expiry, by providing notice in writing to the Master Client;
5. FL shall issue one or more final invoices for any Additional Services performed up to the date of termination or expiry, or other amount payable by the Master Client that has not yet been invoiced up to the date of termination or expiry (Final Invoices);
6. the Master Client shall immediately pay all outstanding monies due and payable to FL, including without limitation pursuant to the Final Invoices;
7. subject to (h) below, each party shall return any property in its possession or control that is owned by the other party to the other party;
8. FL shall make the Master Client Data and Customer Data available for collection or download by the Master Client, for a period of 30 days after the termination or expiry date, and after such date, FL shall be permitted to permanently delete the Data;
9. subject to subclause (h) above, each party will cease to use any other party’s Intellectual Property and Confidential Information; and
10. subject to subclause (h) above, each party shall permanently destroy any electronic copies of the other party’s Intellectual Property or Confidential Information, except those that have been previously captured by an automatic electronic back up system that is generally inaccessible to that party’s personnel or as are required to be retained for statutory or compliance purposes.

Negotiation: In the event of any dispute between the parties in relation to this Agreement, the parties shall first seek to resolve such dispute by promptly giving notice of the dispute to the other party and co-operatively endeavouring to resolve such dispute.

Mediation: If the dispute remains unresolved the parties shall then seek a resolution through the use of mediation. A mediator shall be appointed jointly by the parties, or if a mediator cannot be mutually agreed within a reasonable time, a mediator shall be appointed by the President of the New Zealand Law Society, or their nominee.

Arbitration: If the dispute is not resolved within 20 Working Day after the appointment of the mediator, either party may refer the matter to arbitration. Arbitration shall be undertaken by a sole arbitrator in accordance with the Arbitration Act 1996 and its amendments and the AMINZ Arbitration Rules current at the time arbitration is commenced. The place of arbitration will be Nelson and the law applicable to the arbitral proceedings and the matters in dispute will be New Zealand law.

Urgent relief: The parties acknowledge that an actual or threatened breach of this Agreement may cause damage to the other that is unable to be adequately compensated for by monetary damages. In such circumstances a party may seek urgent injunctive relief from the Court.

Variation: This Agreement may be varied as follows:

1. mutually by the parties, provided such variation is in writing and signed by each party; or
2. unilaterally by FL, by providing at least 30 Working Days’ notice in writing to the Master Client (Variation Notice). If the Master Client does not accept the variation set out in the Variation Notice, then the Master Client may exercise their termination rights set out in clause 13.1.

Terms of use: Notwithstanding clause 15.1, FL may vary the FlexR Terms of Use from time to time, without notice to the Master Client, or other third party, by posting the updated FlexR Terms of Use on FlexR.

Survival: Termination or expiry of this Agreement for any reason (including in the event of misrepresentation) will not affect the rights and obligations of the parties that are intended to survive such termination, and any other provision to the extent required in order to give effect to such provisions.

Notices: Notices, communication documents or demands required to be made or served pursuant to this Agreement shall be in writing signed by the party giving the notice. Any notice or document shall be deemed to be duly given or made if delivered by hand, when so delivered; if sent by post, on the third working day following posting; if communicated by email, when transmitted with no indication of incomplete to the recipient's last known email address.

Relationship: This Agreement does not create a joint venture, partnership, agency, or employer/employee relationship between the parties.

Force majeure: No failure or omission by any party to carry out or observe any of the terms of this Agreement will be deemed a breach of this Agreement if such failure or omission arises in full or in part from a Force Majeure Event. This clause shall never excuse an obligation to pay moneys.

Waiver: The waiver of any right or claim pursuant to this Agreement shall not be effective unless in writing.

Assignment: The Master Client shall not transfer or assign, or purport to transfer or assign, their rights or obligations under this Agreement without the prior written consent of FL. FL may transfer, assign or novate its rights and obligations pursuant to this Agreement to any third party as part of a sale of its business as a whole, without obtaining the consent of the Master Client.

Subcontracting: FL may subcontract all or any part of its obligations pursuant to this Agreement, without notice to the Master Client.

Governing law: This Agreement shall be interpreted in accordance with New Zealand law, and any dispute arising out of the subject matter of this Agreement shall, subject to clause 14 be determined by the New Zealand courts.

Entire Agreement: This Agreement constitutes the entire Agreement and understanding between the parties and supersedes all prior discussions, representations and agreements covering the subject matter of this Agreement.

Counterparts: This Agreement may be executed in counterparts (which may be email copies) and all of which, when taken together constitute the one document.

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