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 Fees, 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 of the Master Client that have been appointed by the Master Client to have administrator level rights in relation to FlexR in accordance with clause 4.2 (provided that such rights have not been terminated, suspended or revoked). An Administrator may not be an independent contractor of the Master Client, unless first authorised in writing by FL.

Administrator Tools means those tools available only for use by Administrators in the FlexR Portal. The Administrator Tools are included in the base functionality of FlexR.

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 member of the Master Client, that has signed, or otherwise agreed to in writing to, a sublicence in respect of the use of FlexR as contemplated by clause 4.4.

Customer Data means all data input into FlexR by or on behalf of the Customer that is the personal information of, or otherwise directly relates to, the Customer and Customer Users, but excludes FlexR Data.

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

Data means all FlexR Data, Master Client Data and Customer Data.

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

FlexR means the cloud-based software platform licensed by FL under this Agreement, and includes the base functionality, as further described in the Materials and in Schedule One. FlexR also includes any FlexR Modules specified in Schedule One, as may be added and removed from time to time (if any). Subject to clause 8.2, FlexR includes any modifications, amendments or improvements to FlexR made as part of the Services.

FlexR App means a mobile device software application provided by FL from time to time, that integrates with FlexR and provides functionality in relation to FlexR, and which is for use by Administrators, Master Client, Master Client Users, Customer and Customer Users. The FlexR App is a FlexR Module.

FlexR Data means all data associated with the operation, performance and use of FlexR, all analytical information regarding FlexR usage, Transaction information, Unit information, pump pricing of fuel, and all other data in relation to the purchase of goods and services associated with FlexR.

FlexR Modules means those additional bundles of software functionality that operate in conjunction with, and which extend the base functionality of, FlexR, or other additional options or services available for purchase from FL in relation to FlexR. FlexR Modules are not included in the base functionality of FlexR and are only provided to the Master Client for use if they are described as a FlexR Module in Schedule One. Specific access and use restrictions may apply to some FlexR Modules, and only some FlexR Modules may be capable of being sublicensed for use by Customers under clause 4.1(c). Each FlexR Module is further described in the Materials. Specific restrictions may apply in relation to FlexR Modules, as further set out in this Agreement.

FlexR Portal means a website that integrates with FlexR and provides functionality in relation to FlexR, and which is for use by Administrators and Master Client Users only, as provided by FL from time to time. The FlexR Portal is included in the base functionality of FlexR.

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.

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.

Fuel means any fuel or diesel exhaust fluid (dispensed by a pump, excluding pre-filled containers), including without limitation petrol, diesel, aviation fuel, homeheat diesel and hydrogen etc.

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 Variable Monthly 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.

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 means all data input into FlexR by or on behalf of the Master Client that is the personal information of, or otherwise directly relates to, the Master Client, the Administrators, or any Master Client Users, but excludes FlexR Data.

Master Client Users means the Administrators and other employees of the Master Client that have been authorised to use FlexR by an Administrator (provided that such rights have not been terminated or revoked).

Master Client Website means a website that is owned by the Master Client, that relates to the Master Client’s business.

Master Client Website Hosting means a website hosting service that FL may provide to the Master Client in respect of the Master Client Website, if included as a FlexR Module in the FlexR Subscription Agreement.

Materials means the documentation set out on the FL website, FlexR Portal and/or FlexR App or as otherwise notified by FL to the Master Client (including be email), which sets out the description of FlexR, and other FlexR related information, including without limitation in relation to user guides, setup, configuration and troubleshooting in relation to FlexR, which may be amended and updated from time to time by FL.

Monthly Subscription Fees means the aggregate total of the Variable Monthly Fees and the Fixed Monthly Fees, calculated in respect of or applicable to, any particular month during the Subscription Term.

Variable Monthly Fee means either:
(a) if the Per Unit option is selected in Schedule One, the amount calculated by multiplying the Per Unit Fee by the Transacted Units, provided that the Monthly Base Fee in respect of any particular month shall not be less than the Minimum Variable Monthly Fee set out in Schedule One. The Variable Monthly Fee remains subject to review by FL under clause 10.12; or
(b) if the Per Transaction option is selected in Schedule One, the amount calculated by multiplying the Per Transaction Fee by the number of Transactions that are processed by FlexR during the particular month but shall not be less than the Minimum Variable Monthly Fee set out in Schedule One. The Variable Monthly Fee remains subject to review by FL under clause 10.12.

Fixed Monthly Fees means those fees set out as such in Schedule One, but which remain subject to review by FL under clause 10.12.

Per Unit Fee means the cents per Unit set out in Schedule One, but which remain subject to review by FL under clause 10.12.

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.

Transacted Units means the total aggregate number of Units processed by FlexR in respect of the Master Client, including without limitation to their Customers and Customer Users, during the applicable calendar month.

Transaction means each transaction for goods (including without limitation, Fuel) and/or services that is processed by FlexR in relation to the Master Client, Master Client Users, Customer and/or Customer Users. Transactions can include purchases and credits/refunds. A Transaction includes purchases from FL and Third Party Vendors. By way of example only, one Transaction could include a purchase of Fuel, food, coffee and drinks from a petrol station, where the total purchase price of all items is charged as a single amount but processed individually by FlexR.

Unit means the unit of measurement at the point of sale for a particular Fuel type, for example a litre for petrol and kilogram for hydrogen.

Users means all permitted users of FlexR, including Master Client, Administrators, Master Client Users, Customers 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;
8. 'including' (and its similar expressions) shall be interpreted as if followed by 'without limitation'; and
9. 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 of the Agreement, FL shall implement the Master Client’s instance of FlexR, migrate the Master Client’s data (and if applicable Customer 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 of 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 remaining 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, compliance with this Agreement and the Terms of Use, FL grants the following non-exclusive and non-transferrable rights to the Master Client during the Subscription Term:

1. for the Master Client and Master Client Users to use FlexR to process Master Client Data (and to the extent necessary, FlexR Data) using FlexR, and to access and use the FlexR Portal;
2. to appoint a reasonable number of Administrators, and for those appointed Administrators to access and use the FlexR Portal and the Administrator Tools;
3. if the FlexR Modules include the FlexR App, then the right for the Master Client, Administrators and Master Client Users to use the FlexR App in accordance with clause 4.8;
4. to sublicense the Master Client’s right to use FlexR to process data to its Customers subject to clause 4.4 and the terms and conditions of this Agreement, and where such sublicensing occurs, the Master Client and the Customer may use FlexR to process Customer Data;
5. if the FlexR Modules include the FlexR App, to sublicense the Master Client’s right to use the FlexR App to Customers and Customer Users in accordance with clause 4.8(f); and
6. to access and use the Materials in electronic form, and where the Master Client has granted sublicenses under 4.1(c) to Customers and/or Customer Users, the right for those sublicensed Customers and Customer Users to access and use the Materials 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 appointed, the Master Client shall advise FL of their contact email address and cell-phone number. The Master Client is at all times responsible for its Administrators’ compliance with this Agreement.

Users: The Master Client shall ensure that all Administrators, Master Client Users, Customers and Customer Users comply with the terms and conditions of this Agreement, the FlexR Terms of Use, and any sublicense granted by the Master Client to the Customer and Customer Users (if applicable).

Sublicensing: The Master Client may only allow Customers and Customer Users to process Customer Data using FlexR (and to sublicense any other sublicensable rights that the Master Client has under this Agreement), where the Master Client has entered into a written sublicense with each Customer on terms and conditions that are approved by FL in all respects. That written agreement must be signed, or otherwise agreed to in writing, by the Customer.

Access to FlexR: Only the Administrators and Master Client Users are permitted to access and use the FlexR Portal. Only Administrators are permitted to access and use the Administrator Tools. Customers and Customer Users are not permitted to directly access FlexR (although may access and use the FlexR App, if permitted in accordance with clause 4.8 below).

Third party rights: Unless otherwise agreed in writing by FL, the Master Client must not, and shall ensure that the Administrators and Master Client Users do not, grant any sublicense to use or any other right to access and use FlexR to any person that is not the Master Client or a Master Client User, Customer or Customer User.

FlexR Portal: FL will implement and configure the FlexR Portal in accordance with its standard specification, features and operating procedures, and make it available for use by Administrators and Master Client Users during the Subscription Term, as follows:

1. the standard specification, features and operating procedures for the FlexR Portal are available from FL, but are subject to change from time to time without notice;
2. the Variable Monthly Fee includes access and use of the FlexR Portal by Administrators and Master Client Users;
3. if agreed in writing by FL and the Master Client, the FlexR Portal will be branded with the Master Client’s branding and logos; however, the FlexR Portal and all Intellectual Property rights in it (other than the Master Client’s branding and logos) remain owned by FL;
4. the Master Client must not, and must ensure that any Administrator or Master Client User does not, make the FlexR Portal available to, or allow use by any third party, or share access credentials with any third party, including without limitation Customers or Customer Users;
5. FL may determine the FlexR Portal’s compatibility with any device, software (including browsers) or operating system from time to time. FL may update compatibility or minimum-system requirements, and deem any version end-of-life, without notice. FL may also bring the FlexR Portal and corresponding Support to an end, by providing at least three months’ notice to the Master Client.

FlexR App: Where the FlexR App is included in the Master Client’s FlexR Modules, FL will implement and configure the FlexR App in accordance with its standard specifications, features and operating procedures, provide it to the Master Client and provide Maintenance and Support in respect of it during the remaining Subscription Term, as follows:

1. the FlexR App may be accessed and used by Administrators and Master Client Users, subject to the Terms of Use;
2. the standard specification, features and operating procedures are available from FL but are subject to change without notice;
3. the FlexR App Fee (which forms part of the Fixed Monthly Fees) is payable in respect of the Master Client’s access and use (and sublicensing) of the FlexR App;
4. if agreed in writing by FL and the Master Client, the FlexR App will be branded with the Master Client’s branding and logos; however, the FlexR App and all Intellectual Property rights in it (other than the Master Client’s branding and logos) are owned by FL;
5. the Monthly Subscription Fee will increase by an amount equal to the monthly FlexR App fee as set out in Schedule One or in accordance with FL’s standard pricing (unless otherwise agreed); both remain subject to review under clause 10.12;
6. the Master Client may sublicense its right to use the FlexR App to Customers and Customer Users during the Subscription Term, provided that each is bound by Master Client Terms of Use approved in writing by FL (which must not be varied without FL’s consent);
7. the Master Client shall ensure that all Customers and Customer Users comply with those Terms of Use and is liable to FL for their acts and omissions;
8. the FlexR App must only be distributed via the Apple App Store or Google Play under FL’s developer account unless FL approves otherwise in writing;
9. the Master Client may charge Customers a fee to access and use the FlexR App;
10. FL may amend compatibility or operating-system requirements for the FlexR App and deem any version end-of-life at its discretion, with or without notice, and may terminate the FlexR App Module and Support with three months’ written notice; and
11. any customisation work relating to the FlexR App constitutes Additional Services.

Service authorisations: The Master Client agrees to provide access and all necessary usage rights to its third-party software and services to FL that are necessary for FlexR to operate as anticipated by this Agreement and the Materials (Required Access). The Master Client acknowledges that restricting or removing any Required Access may significantly limit the operation of FlexR, the FlexR Portal and the FlexR App.

Nature of offering: Goods and services may be made available for purchase via FlexR, including in the FlexR Portal and the FlexR App. Those goods and services may be offered by FL, by other third-party vendors (Third Party Vendors), or by FL as agent for or on behalf of Third Party Vendors.

Terms and conditions: 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, or providing ordering functionality) are subject to the FlexR Terms of Sale.

Third party vendors: 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).

Resale: The Master Client may be permitted to resell goods and services purchased from FL or Third Party Vendors, 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 those applicable terms.

Ordering functionality: FlexR, the FlexR Portal and the FlexR App may offer functionality which enables the Master Client or a Customer to place an order with a Third Party Vendor to purchase goods and services (including without limitation bulk fuel orders, aviation fuel, heating diesel and hydrogen). Such orders are placed by FL on behalf of the Master Client or Customer (as applicable), and are subject to those terms and conditions that are in place between the Master Client or Customer (as applicable) and the Third Party Vendor, or if none are in place, the Terms of Sale.

Acknowledgements: FL are not a party to, nor liable for, any transaction entered into by the Master Client or Customer and a Third Party Vendor. FL make no representation or warranty regarding the goods and/or services being ordered or sold via FlexR by Third Party Vendors (including where FL are selling as an agent or on behalf of a Third Party Vendor or where orders are placed on behalf of the Master Client or Customer), 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, or orders placed, via FlexR.

Data ownership: The parties agree that FL owns the FlexR Data, the Master Client owns the Master Client Data and the Customer owns the Customer Data.

FlexR Data licence: The Master Client grants FL a worldwide, non-exclusive, royalty-free licence to use, modify, store, disclose and sublicense any and all Master Client Data and Customer 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 licence to use, modify, store, disclose and sublicense any and all Master Client Data and Customer 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 does not own any part of the Master Client Data or Customer Data licensed in clauses 6.2 or 6.3, the Master Client must ensure that its right to use the Data is sufficiently broad to grant the licences set out in those clauses.

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 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 Use 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 within 3 Working Days of receipt; and/or
2. where the breach is minor, issue written notice to the Master Client setting out measures that must immediately be taken to rectify such breach (Rectification Measures), and require compliance to FL’s satisfaction with evidence of implementation; 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, Administrators, Users and any other persons are not permitted to perform or engage any third party to perform 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 reverse such Amendments and restore FlexR shall be chargeable at current Additional Services rates. FL shall have no liability for any loss or corruption of FlexR or any Data where Unauthorised Amendments are carried out by any party other than FL or its nominated representative, or where such loss or corruption could have been avoided 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 logos 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 FL’s expense 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 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 providers or 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 FlexR 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: The Master Client is responsible for ensuring that 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 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 Master Client Users, Customer Users or Customers with FL’s Support contact information. If the Administrator is not able to resolve any support request within a reasonable period after using its best efforts, the Administrator may place a request for Support with FL, and shall then relay the necessary information to the User that raised the support request.

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 in accordance with this Agreement, 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 subcontractors 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 representation (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 not on any representation by 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 law; and
4. this clause 9.3 is fair and reasonable in the circumstances and each party has had the opportunity to obtain independent legal advice before 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 Fees will be invoiced in arrears on a monthly basis during the Subscription Term. The Variable Monthly Fee, Fixed Monthly Fees, Initial Training Fee and fees for Additional Services shall be itemised on each invoice;
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 updated from time to time) and will be invoiced as mutually agreed or, if not agreed, in advance.

Consolidated invoices: FL may consolidate any amounts payable by the Master Client to FL under this Agreement with any amounts payable under other agreements (e.g. 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 set-off, to FL’s nominated bank account:

1. if the invoice is issued on or before the 5th Working Day of that month – on or before the 20th day of the same month; or
2. if the invoice is issued after the 5th Working Day of a month – on or before 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 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 other than vehicle travel must be pre-approved by the Master Client before invoicing.

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

Disputed invoices: If the Master Client disputes any invoice (in full or in part) issued by FL, it shall pay any undisputed portion per clause 10.3 and notify FL of the nature of the dispute regarding the unpaid balance. If no resolution is reached within 10 Working Days, either party may refer the matter for resolution under clause 14.

PPSA: To secure the Master Client’s payment and performance obligations owed under 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.

Co-operation and waiver: The Master Client agrees to:

1. co-operate in good faith with FL to execute documentation required to register a security interest in favour of FL and protect FL’s interest in the Collateral; and
2. waive any right to receive a copy of the verification statement under section 148 of the Personal Property Securities Act 1999.

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

1. suspend the Master Client’s access to FlexR and Services, suspend or cancel any order for Additional Services, and/or terminate this Agreement by notice;
2. charge interest at 1.5% per month on all amounts due but unpaid, calculated daily from the due date until payment in full including interest;
3. enforce the terms and conditions of this Agreement and/or any security;
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 amounts owing, appoint a collections agent, receiver or other third party to collect such amounts; all costs and expenses (including solicitor-client costs) shall be paid by the Master Client.

Non-refundable fees: Except as expressly specified in this Agreement or agreed by FL in writing, any Fees paid to FL are non-refundable, including on termination or expiry of this Agreement.

Fee review: FL may increase the Monthly Subscription Fees (or any component thereof) from time to time by providing at least 40 Working Days’ written notice to the Master Client. FL may only increase the Monthly Subscription Fee once in any 12-month period and not during the Initial Subscription Term. FL may update its rate card for Additional Services at any time without notice to the Master Client. Changes in rate cards do not affect any signed Additional Services agreement that disallows increases.

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 User to identify and alert FL (and all of its other master clients) to 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). The Master Client must ensure that a Master Client User does not trigger the Suspected Identity Theft Alert unless it has reasonable grounds to believe that the relevant information provided is false.

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 6.8(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.