Software as a Service - Terms & Conditions

Please read these terms and conditions carefully, as they set out our and your legal rights and obligations in relation our EZEMobile© platform and services. You will be asked to agree to these terms and conditions before becoming a customer.

If these terms and conditions are presented to you in electronic form then You should print a copy of these terms and conditions for future reference. For Customers in New Zealand, Australia and United Kingdom, the current electronic version of Our terms and conditions are published on our website and Your continued use of Our EZEMobile© platform and services constitutes your electronic signature accepting the current terms and conditions.

For Customers in New Zealand and Australian You consent to the accessing and receiving of information in electronic form.

For Customers in New Zealand, Australian and the United Kingdom We will not file a copy specifically in relation to you and they may not be accessible on our website in future.

These terms and conditions are available in the English language only.

These terms and conditions are generic terms and conditions that apply to all Software as Service Services provide by Ablaze Software. Certain Software as a Service Services may have additional or altered terms and conditions specific to those services in which case if there is any conflict between these terms and conditions and the other Services terms and conditions the other Services terms and conditions will prevail only to the extent of the conflict.

If you have any questions or complaints about our services, please contact us by writing to Ablaze Software Complaints at PO Box 12 594 Auckland 1642 New Zealand or by email to complaints@ablazesoftware.co.nz.

AGREEMENT:

1. Definitions and interpretation

   1. In the Agreement:

      “Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

      “Agreement” means the agreement between the Provider and the Customer for the provision of the Platform as a service, incorporating these terms and conditions (including the Schedules) and the Statement of Services, and any amendments to the Agreement from time to time;

      “Anniversary Date” means the day 1 month after the Effective Date

      “Business Day” means any week day, other than a public holiday in New Zealand;

      “Business Hours” means between 09:00 and 17:30 Auckland New Zealand time on a Business Day;

      “Charges” means the amounts payable by the Customer to the Provider under or in relation to the Agreement (as set out in Schedule [2]);

      “Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);

      “Customer” means the customer specified in the Statement of Services or Order Form;

      “Customer Confidential Information” means
      

      1. any information disclosed (whether disclosed in writing, orally or otherwise) by the Customer to the Provider [during the Term] that is marked as “confidential”, described as “confidential” or should have been understood by the Provider at the time of disclosure to be confidential;

      2. the financial terms and conditions of the Agreement;

      3. the Customer Materials; and

      4. other confidential information;

      "Customer Materials" all works and materials and data:

      1. uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Customer or by any person or application or automated system using the Customer's account; and

      2. otherwise provided by the Customer to the Provider in connection with the Agreement;

      “Defect” means a defect, error or bug having an / a materially adverse effect on the appearance, operation or functionality of the Platform, but excluding any defect, error or bug caused by or arising as a result of:

      1. an act or omission of the Customer, or an act or omission of one of the Customer's employees, officers, agents, suppliers or sub-contractors; or

      2. an incompatibility between the Platform and any other system, application, program or software not specified as compatible in the Statement of Services];

      "Documentation" means the documentation produced by the Provider and supplied / made available on the Platform to the Customer specifying how the Platform should be used;

      “Effective Date” means the date that the Agreement comes into force as specified in Clause [2] / or if the Agreement is made off-line then the date of execution of the Agreement;

      “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet,[ hacker attacks, virus or other malicious software attacks or infections,] power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

      “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

      “Minimum Term” means the period specified as such in the Statement of Services;

      “Order Form” means the off-line document that incorporates the Statement of Services.

      "Permitted Purpose" means use of the Platform in a manner consistent with the EZEMobile© Software Service being provided under the Agreement;

      “Personal Data” has the meaning given to it in the Privacy Act 1993;

      “Platform” means the software platform prefixed with the word EZEMobile© (e.g. EZEMobile© Sales) that is owned and operated by the Provider, and that will be made available to the Customer as a service via the internet under the Agreement;

      “Provider” means Ablaze Software Limited, a company incorporated in New Zealand registration number 1544390 having its registered office at 32 Greenpark Road Auckland New Zealand;

      “Schedule” means a schedule attached to the Agreement;

      “Services” means all the services provided or to be provided by the Provider to the Customer under the Agreement, including the Support Services;

      "Statement of Services" means the online document made available by the Provider to the Customer during the order process / agreed between the parties that specifies the identity of the Customer, and other matters relating to the Agreement or if the online document is made available off-line by the Provider to the Customer during the order process / agreed between the parties that specifies the identity of the Customer, and other matters relating to the Agreement

      "Support Services" means support and maintenance services provided or to be provided by the Provider to the Customer in accordance with Schedule [1];

      “Term” means the term of the Agreement; and

      “Upgrades” means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform.

   2. In the Agreement, a reference to a statute or statutory provision includes a reference to:

      1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
      2. any subordinate legislation made under that statute or statutory provision.
   3. The Clause headings do not affect the interpretation of the Agreement.
   4. The ejusdem generis rule is not intended to be used in the interpretation of the Agreement.

2. Agreement and Term

   1. For off-line agreements the Agreement will come into force on the Effective Date and will continue in force for the Minimum Term and indefinitely thereafter until unless terminated earlier in accordance with Clause [13].

      OR

      For online agreements the advertising of the Platform and the Services on the Provider's website constitutes an “invitation to treat”; and the Customer's order for the Platform and the Services constitutes a contractual offer. No contract will come into force between the Provider and the Customer unless and until the Provider accepts the Customer's order in accordance with the procedure detailed in this Clause [2].

      1. In order to enter into the Agreement, the Customer must take the following steps:
         1. the Customer must select the Platform and Support Services from the contract menu;
         2. the Customer must then create an account with the Provider's website and log in; once the Customer is logged in, the Customer must confirm the order in accordance with the Statement of Services, and consent to the terms of this Agreement;
         3. the Customer will then be able to submit its payment by credit or debit card; (v) after payment has been submitted, the Provider will send to the Customer an initial acknowledgement ; and
         4. once the Provider has attempted to verify the identity, credit-worthiness and bona fides of the Customer, the Provider will either send the Customer an order confirmation (at which point the Agreement will come into force) or the Provider will confirm to the Customer that the Provider does not accept the Customer's offer (in which case the Customer will be refunded the full amount paid to the Provider).”
         5. the above steps will be adapted to allow for off-line selection of Platform and Support Services, Agreement execution and payment.
      2. Before the Customer has placed its order, the Customer will have the opportunity of identifying whether any input errors have been made by confirming the accuracy of the information provided. The Customer may correct any input errors before placing your order by re-entering the correct information on the applicable webpage.
      3. Once in force, the Agreement will continue in force for the Minimum Term and indefinitely thereafter, unless terminated in accordance with Clause [13].

3. The Platform

   1. The Provider will make available the Platform to the Customer by setting up an account for the Customer on the Platform, and providing to the Customer login details for that account as soon as practicable / but within 2 Business Days following the Effective Date.

      OR

      In the event that the Platform will automatically generate an account for the Customer then promptly following the Effective Date, enabling the Customer to access the Platform.

   2. Subject to the limitations set out in Clause [3.3] and the prohibitions set out in Clause [3.4], the Provider hereby grants to the Customer a non-exclusive licence to use the Platform for the Permitted Purpose via any standard web browser in accordance with the Documentation during the Term.

   3. The licence granted by the Provider to the Customer under Clause [3.2] is subject to the following limitations:

   1. the Platform may only be used by the named users identified in the Statement of Services, providing that the Customer may change, add or remove a designated named user in accordance with the procedure set out therein;
   2. the Platform must not be used at any point in time by more than the number of concurrent users specified in the Statement of Services, providing that the Customer may add or remove concurrent user licences in accordance with the procedure set out therein;
   3. the Platform may only be used by the employees, agents and sub-contractors of the Customer and:
      1. where the Customer is a company, the Customer's officers;
      2. where the Customer is a partnership, the Customer's partners; and
      3. where the Customer is a limited liability partnership, the Customer's members;
   4. the Customer must comply at all times with the terms of the acceptable use policy set out in Schedule [3], and must ensure that all users of the Platform agree to and comply with the terms of that acceptable use policy; and
   4. Except to the extent mandated by applicable law or expressly permitted in the Agreement, the licence granted by the Provider to the Customer under this Clause [3] is subject to the following prohibitions:
      1. the Customer must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform;
      2. the Customer must not frame or otherwise re-publish or re-distribute the Platform;
      3. the Customer must not alter or adapt or edit the Platform save as expressly permitted by the Documentation;
   5. For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Term.
   6. All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of the Provider.
   7. The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Platform using the Customer's account.
   8. The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.
   9. The Customer must not use the Platform:
      1. in any way that is unlawful, illegal, fraudulent or harmful; or
      2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

4. Support Services and Upgrades

   1. During the Term the Provider will provide the Support Services to the Customer, and may apply Upgrades to the Platform, in accordance with the service level agreement set out in Schedule [1].
   2. The Provider may sub-contract the provision of any of the Support Services without obtaining the consent of the Customer.

5. Customer Materials

   1. The Customer grants to the Provider a non-exclusive licence to store, copy and otherwise use the Customer Materials on the Platform for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under the Agreement, and exercising its rights under the Agreement.
   2. Subject to Clause [5.1], all Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer.
   3. The Customer warrants and represents to the Provider that the Customer Materials, and their use by the Provider in accordance with the terms of the Agreement, will not:
      1. breach any laws, statutes, regulations or legally-binding codes;
      2. infringe any person's Intellectual Property Rights or other legal rights; or
      3. infringe any person's Intellectual Property Rights or other legal rights; or

   in each case in the applicable jurisdiction of the Customer and under any applicable law and in each case jurisdiction of the Provider in New Zealand and under New Zealand law.

   4. Where the Provider reasonably suspects that there has been a breach by the Customer of the provisions of this Clause [5], the Provider may:
      1. delete or amend the relevant Customer Materials; and/or
      2. suspend any or all of the Services and/or the Customer’s access to the Platform while it investigates the matter.
   5. Any breach by the Customer of this Clause [5] will be deemed to be a material breach of the Agreement for the purposes of Clause [13].
   6. The Provider shall ensure that the Customer Materials stored and processed by the Platform are stored separately from, and are not co-mingled with, the materials of other customers of the Provider.

6. Trial period

   The first 14 days of the Term shall be a trial period, during which all of the provisions of this Agreement shall apply, save as follows:

   1. the Customer shall have no obligation to pay the Charges in respect of the trial period;
   2. either party may terminate the Agreement immediately by giving written notice to the other party at any time before the end of the trial period in which case no liability to pay any Charges in respect of Platform access or Support Services will arise; and

7. Charges

   1. The Provider will issue invoices for the Charges to the Customer in accordance with the provisions of Schedule [2].
   2. The Customer will pay the Charges to the Provider monthly in advance.
   3. All Charges stated in or in relation to the Agreement are stated exclusive exclusive of GST/VAT, unless the context requires otherwise. GST/VAT may be payable by the Customer to the Provider in addition to the principal amounts.
   4. Charges must be paid by credit card and You authorise the Provider to debit the credit card You provided to the Provider or as otherwise agreed in writing with the Provider from time to time.
   5. If the Customer does not pay any amount properly due to the Provider under or in connection with the Agreement, the Provider may:
   1. charge the Customer interest on the overdue amount at the rate of 30% per year which interest will accrue daily and be compounded monthly; and
   2. the Customer indemnifies the Provider the full costs of collection of overdue debts; and
   3. Non-payment will be deemed to be a material breach of the Agreement for the purposes of Clause [13]
   6. The Provider may vary the Charges payable under Paragraphs 2, 3 and 4 of Schedule [2]
   7. The Provider may suspend access to the Platform and the provision of the Services if any amounts due to be paid by the Customer to the Provider under the Agreement are overdue by more than 7 days.

8. Warranties

   1. The Customer warrants and represents to the Provider that it has the legal right and authority to enter into and perform its obligations under the Agreement.
   2. The Provider warrants and represents to the Customer:
      1. that it has the legal right and authority to enter into and perform its obligations under the Agreement;
      2. that it will perform its obligations under the Agreement with reasonable care and skill;
      3. that the Platform will operate without Defects and will perform substantially in accordance with the Documentation (subject to any Upgrades);
      4. that the Platform will be hosted in accordance with the requirements set out in the Statement of Services, and will be available to the Customer in accordance with the uptime commitments given in Schedule [1];
      5. the Platform (excluding for the avoidance of doubt the Customer Materials) will not infringe any person's Intellectual Property Rights in any jurisdiction and under any applicable law / in New Zealand and under New Zealand law;
      6. the Platform is and will remain free from viruses and other malicious software programs.
   3. The Customer acknowledges that:
      1. complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs;
      2. the Provider does not warrant or represent that the Platform will be compatible with any application, program or software not specifically identified as compatible in the Statement of Services; and
      3. the Provider will not and does not purport to provide any legal, taxation or accountancy advice under the Agreement or in relation to the Platform and (except to the extent expressly provided otherwise) the Provider does not warrant or represent that the Platform will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.
   4. All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement.

9. Indemnities

   1. The Customer will indemnify and will keep indemnified the Provider against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid [upon legal advice] in settlement of any disputes) suffered or incurred by the Provider and arising as a result of any breach by the Customer of Clause [5.3].

10. Limitations and exclusions of liability

    1. Nothing in the Agreement will:
       1. limit or exclude the liability of a party for death or personal injury resulting from negligence;
       2. limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
       3. limit any liability of a party in any way that is not permitted under applicable law; or
       4. exclude any liability of a party that may not be excluded under applicable law.
    2. The limitations and exclusions of liability set out in this Clause [10] and elsewhere in the Agreement:
       1. are subject to Clause [10.1];
       2. govern all liabilities arising under the Agreement or any collateral contract or in relation to the subject matter of the Agreement [or any collateral contract], including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and
       3. will not limit or exclude the liability of the parties under the express indemnities set out the Agreement.
    3. The Provider will not be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
    4. The Provider will not be liable for any loss of business, contracts or commercial opportunities.
    5. The Provider will not be liable for any loss of or damage to goodwill or reputation.
    6. Neither party will be liable in respect of any loss or corruption of any data, database or software.
    7. Neither party will be liable in respect of any special, indirect or consequential loss or damage.
    8. Neither party will be liable for any losses arising out of a Force Majeure Event.
    9. Neither party's liability in relation to any event or series of related events will exceed the greater of:
       1. NZD $0.00; and
    10. 1. NZD $0.00

11. Data protection

    1. The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.
    2. The Provider warrants that:
       1. it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Provider on behalf of the Customer; and
       2. it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Provider on behalf of the Customer.

12. Confidentiality

    1. The Provider will:
       1. keep confidential and not disclose the Customer Confidential Information to any person save as expressly permitted by this Clause [12];
       2. rotect the Customer Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care; and
       3. without prejudice to the generality of Clause [12.1(b)], deploy and maintain the security systems and technologies detailed in the Statement of Services in relation to the Customer Confidential Information held on the Platform.]
    2. Customer Confidential Information may be disclosed by the Provider to its officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Customer Confidential Information disclosed.
    3. The obligations set out in this Clause [12] shall not apply to:
       1. Customer Confidential Information that is publicly known (other than through a breach of an obligation of confidence);
       2. Customer Confidential Information that is in possession of the Provider prior to disclosure by the Customer;
       3. Customer Confidential Information that is received by the Provider from an independent third party who has a right to disclose the relevant Confidential Information; or
       4. Customer Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body [provided that the Provider must where permitted by law give to the Customer prompt written notice of the disclosure requirement].

13. Termination

    1. Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:
       1. commits any material breach of any term of the Agreement, and:
          1. the breach is not remediable; or
          2. the breach is remediable, but the other party fails to remedy the breach within [30] days of receipt of a written notice requiring it to do so; or
       2. persistently breaches the terms of the Agreement (irrespective of whether such breaches collectively constitute a material breach).
    2. Either party may terminate the Agreement immediately by giving written notice to the other party if:
       1. the other party:
          1. is dissolved;
          2. ceases to conduct all (or substantially all) of its business
          3. is or becomes unable to pay its debts as they fall due;
          4. is or becomes insolvent or is declared insolvent; or
          5. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
       2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
       3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up [(other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement)]; or
       4. (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
    3. Either party may terminate the Agreement by giving at least 30 days' written notice of termination to the other party, expiring at any time after the end of the Minimum Term.
    4. If the Provider stops or makes a good faith decision to stop operating the Platform generally, then the Provider may terminate the Agreement by giving at least 90 days' written notice of termination to the Customer.
    5. The Provider may terminate the Agreement immediately by giving written notice of termination to the Customer where the Customer fails to pay to the Provider any amount due to be paid under the Agreement by the due date.

14. Effects of termination

    1. Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 7.5, 9, 10, 12, 14 and 17].
    2. Termination of the Agreement will not affect either party's accrued liabilities and rights as at the date of termination.
    3. Subject to Clause [14.4], within 30 days following the termination of the Agreement, the Provider will:
       1. irrevocably delete from the Platform all Customer Confidential Information; and
       2. irrevocably delete from its other computer systems all Customer Confidential Information, and return to the Customer or dispose of as the Customer may instruct all documents and materials containing Customer Confidential Information.
    4. The Provider may retain any document (including any electronic document) containing the Customer Confidential Information after the termination of the Agreement if:
       1. the Provider is obliged to retain such document by any law or regulation or other rule enforceable against the Provider; or
       2. the document in question is a letter, fax, email, order confirmation, invoice, receipt or similar document addressed to the Provider.

15. Notices

    1. Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally or by post, or fax or sent by email (except in the case of the Provider giving Notice of upgrades to the Platform), for the attention of the relevant person, and to the relevant address, fax number or email address given below (or as notified by one party to the other in accordance with this Clause).

       The Provider:

       PO Box 12 594 Auckland 1642 New Zealand

       Email: enquires@ablazesoftware.co.nz

       The Customer:

       The addressee, address, email and fax set out in the Statement of Services.

    2. A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
       1. where the notice is delivered personally, at the time of delivery;
       2. where the notice is sent by post, 72 hours after posting; and
       3. where the notice is sent by fax or email, at the time of the transmission (providing the sending party retains written evidence of the transmission).

16. Force Majeure Event

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

17. General

    1. No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
    2. If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
    3. The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
    4. The Customer hereby agrees that the Provider may freely assign any or all of its contractual rights and/or obligations under the Agreement to any Affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any contractual rights or obligations under the Agreement.
    5. The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
    6. Subject to Clause [10.1]:
       1. the Agreement and the acceptable use policy referred to in herein and the Order Form which includes the Statement of Services constitute[s] the entire agreement between the parties in relation to the subject matter of the Agreement, and supersede[s] all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and
       2. neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement
    7. The Agreement will be governed by and construed in accordance with the laws of New Zealand and the courts of New Zealand will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.

18. Acceptance of Agreement

    1. The Customer has indicated their acceptance of these terms and conditions of the Agreement and attached Schedules by:
       1. online electronic acceptance of these terms and conditions; or
       2. offline by signing the Customer Order Form; or
       3. by Use of the Platform(s)

Schedule 1 Service Level Agreement

1. Introduction

   1. In this Schedule:

      "New Functionality" means new functionality that is introduced to the Platform by an Upgrade; and

      "Protected Functionality" means the interoperability of the minimum necessary functions of the Service required to ensure continued service.

   2. References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.
2. Helpdesk
   1. The Provider will make available, during Business Hours, an email helpdesk facility for the purposes of:
      1. assisting the Customer with the configuration of the Platform and the integration of the Platform with the Customer's other systems;
      2. determining the causes of errors and fixing errors in the Platform.
   2. 2.2 Subject to Paragraph [2.3], the Customer must make all requests for Support Services through the helpdesk, and all such requests must include at least the following information:
      • Customer name;
      • Customer email address;
      • Nature of the problem or question;
   3. The Provider will use reasonable endeavours to ensure that a member of its support staff can be reached by mobile phone outside Business Hours in the case of an emergency.

3. Response and resolution timesaving

   1. The Provider will:
      1. use all reasonable endeavours to respond to requests for Support Services made through the helpdesk; and
      2. use all reasonable endeavours to resolve issues raised by the Customer, in accordance with the following response time matrix:

   Severity	Examples	Response Time	Resolution Time
   Critical	Service(s) completely unavailable as a result of The Providers servers being down	Less than 1 hour	Between 15 minutes but less than 6 hours depending on nature of the outage
   Serious	Services operating but data errors occurring as a result of The Providers servers not operating correctly.	Less than 1 hour	Between 15 minutes but less than 1/2 day depending on nature of the outage
   Moderate	Services operating at significantly reduced speed as a result of The Providers servers not operating correctly but no data errors occurring	Less than 90 minutes	Between 1 hour minutes but less than 1/2 day depending on nature of the outage
   Minor	Minor bug identified that does not cause data issues or use of the Platform	Less than ½ day	Between 1 and 7 days.

   2. The Provider will determine, acting reasonably, in to which severity category an issue raised through the Support Services falls.
   3. All Support Services will be provided remotely unless expressly agreed otherwise by the Provider.

4. Limits on Support Services

   1. Where the total person-hours spent by the Provider performing the Support Services under Paragraphs [2] and [3] during any Public holiday or weekend exceed 30 minutes, then:
      1. the Provider will cease to have an obligation to provide those Support Services to the Customer during that period; providing that
      2. the Provider may agree to provide additional such Support Services to the Customer during that period, but the provision of such services will be subject to payment by the Customer of additional Charges at the Provider's standard rates from time to time.
   2. The Provider shall have no obligation under the Agreement to provide Support Services in respect of any fault or error caused by:
      1. the improper use of the Platform; or
      2. the use of the Platform otherwise than in accordance with the Documentation.

5. Upgrades

   1. The Customer acknowledges that from time to time during the Term the Provider may apply Upgrades to the Platform, and that such Upgrades may, subject to Paragraph [5.2], result in changes the appearance and/or functionality of the Platform.
   2. No Upgrade shall disable, delete or significantly impair the Protected Functionality.
   3. The Provider will give to the Customer reasonable prior written notice on the Platform website of the application of any significant Upgrade to the Platform. Such notice shall include headlines of the specific changes to the functionality of the Platform resulting from the application of the Upgrade.
   4. The Customer shall not be subject to any additional Charges arising out of the application of the Upgrade, save where:
      1. the Upgrade introduces New Functionality to the Platform;
      2. that New Functionality does not serve the same purpose as legacy functionality that ceases or has ceased to be available as a result of any Upgrade;
      3. access to or use of the New Functionality is chargeable to the customers of the Provider using the Platform generally; and
      4. any decision by the Customer not to pay the Charges for the New Functionality will not prejudice the Customer's access to and use of the rest of the Platform.

6. Uptime Commitment

   1. The Provider shall use all reasonable endeavours to ensure that the Platform is available 99.9% of the time during each calendar month, subject to Paragraph [8].
   2. Platform uptime shall be calculated using the following methodology: (24 x 365)/12 x99.9%
   3. In the event that, during a calendar month entirely within the Term, the Platform fails to meet the availability commitment set out in Paragraph [6.1] then the Provider shall at its sole discretion issue service credits calculated in accordance with Paragraph [6.4] to the Customer, such service credits to be deducted by the Provider from future Charges.
   4. Subject to Paragraph [6.6], the services credits referred to in Paragraph [6.3] and due in respect of a calendar month shall be calculated as follows:

      service credits = ((100 - a) / 100) x b

      where:

      a = the actual percentage availability of the Platform during the relevant calendar month where the Platform availability is less than 85% excluding downtime resulting from upgrades; and

      b = the Charges payable in respect of access to the Platform during the relevant calendar month (exclusive of GST/VAT and other taxes).

   5. The maximum service credits available to the Customer in respect of any calendar month shall be the total Charges payable in respect of access to the Platform during the relevant calendar month (exclusive of GST/VAT and other taxes).

7. Back-up and restoration

   1. Subject to Paragraph [7.2], the Provider will:
      1. make back-ups of the Customer Materials stored on the Platform on a daily basis, and will retain such back-ups for at least the Term of the Agreement; and
      2. at least once every day, the Provider will arrange for the off-site storage of a current back-up of the Customer Materials stored on the Platform (which will be over-written on the following off-site back-up date).
   2. The Provider will only make back-ups of Customer Materials stored on the Platform.
   3. In the event of the loss of, or corruption of, Customer Materials stored on the Platform being notified by the Customer to the Provider under Paragraph [2], the Provider shall if so directed by the Customer use reasonable endeavours to promptly to restore the Customer Materials from the most recent available back-up copy.

8. Scheduled Maintenance

   1. The Provider may suspend access to the Platform in order to carry out scheduled maintenance, such maintenance to be carried out outside Business Hours and such suspension to be for not more than 6 hours in each calendar month.
   2. The Provider must give to the Customer at least [14] days' written notice by publishing on the Platform the intention of schedule maintenance, including full details of the expected Platform downtime.
   3. Platform downtime during scheduled maintenance carried out by the Provider in accordance with this Paragraph [8] shall not be counted as downtime for the purposes of Paragraph [6].

Schedule 2 Charges

1. Introduction

   1. References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.
   2. The Charges under the Agreement will consist of the following elements:
      1. access Charges, in respect of access to and use of the Platform;
      2. support Charges, in respect of the Support Services; and
      3. other Charges.

2. Access Charges

3. The Charges in respect of access to and use of the Platform shall be made up of two elements, a fixed Charges and a variable Charge.
4. The fixed Charge will be the amount set out in the Order Form or Statement of Services plus GST/VAT per calendar month, which shall be invoiced by the Provider at any time following the commencement of the Service and the Anniversary Date in respect of which the licence Charges are incurred;

AND/OR

5. The variable Charge will be the amount set out in the Order Form or Statement of Services plus GST/VAT per calendar month per licensed user, which shall be invoiced by the Provider at any time following the commencement of the Service and the Anniversary Date in respect of which the licence Charges are incurred;
6. Any subscription

7. Support Charges

   On:

   1. the commencement of the Service and the Anniversary Date in respect of which the licence Charges are incurred

   the Provider shall invoice the Customer for a fixed Charge plus GST/VAT in respect of Support Services provided or to be provided under Schedule [1] during that month. The Support Charge is built into the Access Charges.

8. Other Charges

   1. In addition to the Charges detailed in Paragraphs [2] and [3] above, the Provider will invoice in respect of, and the Customer shall pay to the Provider:
      1. Charges payable under Paragraphs [4] and [5] of Schedule [1]; and
      2. Charges not related to Paragraph 2 of Schedule 1 such as assisting the Customer with the proper use of the Platform; and/or
      3. Charges related to Paragraph 2.1(a) of Schedule 1
      4. all other Charges that are agreed between the parties in writing from time to time.
   2. Where other Charges are to be calculated by reference to an hourly or other rate, those rates shall those rates shall be advertised on the Providers website from time to time.

Schedule 3 Acceptable Use Policy

1. This Policy

   This Acceptable Use Policy (the “Policy”) sets out the rules governing the use of our web services available via the URL You have been provided with (the “Service”) and any content that you may submit to the Service (“Content”).

   By using the Service, you agree to the rules set out in this Policy / We will ask you to expressly agree to the rules set out in this Policy.]

2. General restrictions

   You must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service, or any of the areas of, or services on, the Service.

   You must not use the Service:

   1. in any way that is unlawful, illegal, fraudulent or harmful; or
   2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

3. Licence

   You grant to us a worldwide, irrevocable, non-exclusive, royalty-free licence to use, reproduce, publish, [adapt, translate] and distribute your Content on and in relation to the Service / in any existing and future media. You also grant to us the right to sub-license these rights, and the right to bring an action for infringement of these rights.

4. Unlawful and illegal material

   You must not use the Service to store, host, copy, distribute, display, publish, transmit or send Content that is illegal or unlawful, or that will or may infringe a third party's legal rights, or that could give rise to legal action whether against you or us or a third party (in each case in any jurisdiction and under any applicable law).

   Content and its publication on the Service must not:

   1. be libellous or maliciously false;
   2. be obscene or indecent;
   3. infringe any copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off, or other intellectual property rights;
   4. infringe any rights of confidence, rights of privacy, or rights under data protection legislation;
   5. constitute negligent advice or contain any negligent statement;
   6. constitute an incitement to commit a crime;
   7. be in contempt of any court, or in breach of any court order;
   8. be in breach of racial or religious hatred or discrimination legislation;
   9. be blasphemous;
   10. be in breach of official secrets legislation; or
   11. be in breach of any contractual obligation owed to any person.

   You must not submit any Content that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.

5. Data mining

   You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Service without our express written consent.

6. Graphic material

   Content must not depict violence in an explicit, graphic or gratuitous manner.

   Content must not be pornographic or sexually explicit, or consist of or include explicit, graphic or gratuitous material of a sexual nature.

7. Harmful software

   You must not use the Service to promote or distribute any viruses, Trojans, worms, root kits, spyware, [adware] or any other harmful software, programs, routines, applications or technologies.

   You must not use the Service to promote or distribute any software, programs, routines, applications or technologies that will or may negatively affect the performance of a computer or introduce significant security risks to a computer.

8. Factual accuracy

   Content must not be untrue, false, inaccurate or misleading.

   Statements of fact contained in the Content must be true[; and statements of opinion contained on the Content must be truly held and where possible based upon facts that are true

9. Negligent advice

   Content must not consist of or contain any instructions, advice or other information that may be acted upon and could, if acted upon, cause:ing.

   1. illness, injury or death; or
   2. any other loss or damage.]
   3. Marketing and spam

10. Marketing and spam

    You must not use the Service for any purposes related to marketing, advertising, promotion, or the supply and/or sale of goods and/or services.

    Content must not constitute spam.

    You must not use the Service to transmit or send unsolicited commercial communications.

11. Gambling

    You must not use the Service for any purpose related to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.

12. Professional advice

    You must not use the Service to provide any legal, financial, investment, taxation, accountancy, medical or other professional advice or advisory services.

13. Netiquette

    Content must be appropriate, civil, tasteful and accord with generally accepted standards of etiquette and behaviour on the internet.

    Content must not be offensive, deceptive, threatening, abusive, harassing, or menacing, hateful, discriminatory or inflammatory.

    Content should not cause annoyance, inconvenience or needless anxiety.

    Do not flame or conduct flame wars on the Service (“flaming” is the sending hostile messages intended to insult, in particular where the message is directed at a particular person or group of people).

    Do not troll on the Service (“trolling” is the practice of deliberately upsetting or offending other users).

    You must submit Content to the appropriate part of the Service.

    Do not unnecessarily submit textual content in CAPITAL LETTERS.

    You should use appropriate and informative titles for all Content.

    You must at all times be courteous and polite to other Service users.

14. Hyperlinks

    You must not link to any website or web page containing material that would, were it posted on the Service, breach the preceding terms of this Policy.

15. Breaches of this Policy

    We reserve the right to edit or remove any Content in our sole discretion for any reason, without notice or explanation.

    Without prejudice to this general right and our other legal rights, if you breach this Policy in any way, or if we reasonably suspect that you have breached this Policy in any way, we may:

    1. delete or edit any of your Content;
    2. send you one or more formal warnings
    3. temporarily suspend your access to a part or all of the Service; and/or
    4. permanently prohibit you from using a part or all of the Service.

16. Banned users

    Where we suspend or prohibit your access to the Service or a part of the Service, you must not take any action to circumvent such suspension or prohibition (including without limitation using a different account).

17. Monitoring

    Notwithstanding the provisions of this Policy, we do not actively monitor Content.

18. Report abuse

    If you become aware of any material on the Service that contravenes this Policy, please] notify us by email.