1. Application of Terms
1.1These Terms:
1.1.1apply to any Order Form issued by us to the customer listed in the Order Form (you) to provide access to the Service; and
1.1.2where we have not agreed an Order Form with you, apply when you set up an account with TalentJam and begin to access and use the Service. If you do not agree to the Terms or are not authorised to agree to them on behalf of the organisation you represent you may not access and use the Service and must immediately stop doing so.
2. Changes
2.1We reserve the right, at our sole discretion, to change, add or remove portions of these Terms at any time. Unless stated otherwise, any change takes effect from the date we post revised Terms on the Website, provided that, unless otherwise agreed in writing signed by both parties, such varied Terms will not apply to any Order Form entered into prior to the effective date of such varied Terms.
3. Order of precedence
3.1If there is a conflict or inconsistency between these Terms and the Order Form, the Order Form shall take precedence to the extent of the conflict or inconsistency provided that these Terms continue to apply in all other respects.
4. Definitions
4.1In these Terms:
Agreement means these Terms, any Order Form entered into between the customer and us that is expressed to be subject to these Terms and the Privacy Policy.
Analytical Data has the meaning given in clause 7.3.1.1.
Authorised User means any Personnel authorised by you to access the Service.
Billing Period means a period for which Fees are calculated and charged, initially commencing on the Start Date being either: (a) one calendar month for monthly subscriptions; or (b) one calendar year for annual subscriptions. The Billing Period is selected by you during account setup or as specified in an Order Form.
Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Service or otherwise in connection with this Agreement. Our Confidential Information may include Intellectual Property owned by us (or our licensors), including the Underlying Systems, the Service, the Website, the TalentJam Content and any derivative works of them. Your Confidential Information includes the Customer Data.
Customer Data means all data, content, and information (including Personal Information) owned, held, used, or created by you or on your behalf, and that is stored using, or inputted into, the Service, and all data, outputs, information (including Personal Information) and other material generated by your use of the Service or our provision of the Service. It also includes, without limitation, any information about your and/or your Related Entities' business, systems or networks, employees, contractors, or customers.
Documentation means the documentation (if any) made available by us to you (whether in hardcopy or electronic form) that sets out the user instructions for the Service, and includes our published marketing material, technical and operating documentation for the Service (if any).
Fees means the applicable fees in New Zealand dollars that you must pay us for the Service, as specified in the applicable Order Form or, where we have not agreed a separate order form with you, as set out on our pricing page on the website, as may be updated from time to time in accordance with clause 9.
Force Majeure means an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care, or a lack of funds for any reason.
Good Industry Practice means, in relation to any activity or service, the best practice or standard for that type of activity or service (in terms of quality, productivity, effectiveness and performance) adopted by service providers globally in the ICT industry.
Insolvency Event means a party ceases to carry on all or substantially all of its business, is unable to pay its debts when due, or is deemed unable to pay its debts under any law or becomes, or is deemed to be insolvent or bankrupt.
Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a corresponding meaning.
Law includes any rules of common law, equity, statute, regulation, bylaw or other secondary legislation in force from time to time in any applicable jurisdiction.
Losses means losses, damages, costs and expenses.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
Order Form means the order form(s) entered into between us and you relating to your use of the Service.
Personal Information means information or opinion about an identified or identifiable person including personal data (as defined in the EU General Data Protection Regulation 2017/379), and to avoid doubt means any information that by itself or when combined with other information can be used to identify a specific person.
Personnel means any employee, agent or representative of a party, or of any subcontractor (of any tier) of that party and in your case, includes any employee, agent, representative or subcontractor of your Related Entities.
Privacy Laws means all applicable data protection and privacy laws including, without limitation, the New Zealand Privacy Act, the EU General Data Protection Regulation 2016/679, the UK General Data Protection Regulation, the UK Data Protection Act 2018, the UK Privacy and Electronic Communications Regulations, the UK Data Use and Access Act 2025, applicable federal and state laws in the United States of America, the Australian Privacy Act 1988 and the Singapore Personal Data Protection Act 2012.
Privacy Policy means the TalentJam privacy policy (available at https://www.talentjam.io/privacy-policy).
Related Entity in respect of you, has the meaning given to the term Related Company in section 2(3) of the New Zealand Companies Act 1993, except that "company" shall mean a company or other body corporate wherever incorporated and any other entities deemed to be, or defined as, Related Entities in an Order Form.
Security Breach means any:
(a) unauthorised or accidental access to or use of, or disclosure, alteration, loss, or destruction of your Confidential Information (including Customer Data); or
(b) any action that prevents you from accessing your Confidential Information (including Customer Data) on either a temporary or permanent basis.
Service means the TalentJam service that we offer via our Websites and our web and mobile applications, including any associated services provided by us, as may be further described in the applicable Order Form (or documentation referenced in any such Order Form).
Start Date means the date that your Authorised Users will begin to use the Service under the terms of our Agreement, which, where you have agreed an Order Form with us, will be deemed to be the Start Date specified in that Order Form.
TalentJam Content means any content made available via the Service, but excludes any Customer Data.
Terms means these Terms of Service.
Underlying Systems means the IT solutions, systems and networks (including software and hardware) used by us to provide the Service to you, including any third party solutions, systems and networks.
We, us, our or TalentJam means TalentJam Limited, operating as TalentJam.
Website means the internet site at talentjam.io and all its subdomains (and any successor url from time to time through which we make the Service available).
Working Day means a day other than a Saturday, Sunday or public holiday in Wellington, New Zealand.
You or your means the customer listed on the applicable Order Form(s) to use the Service, or where no Order Form is agreed, the person registered with TalentJam to use the Service.
Including and similar words do not imply any limit.
A person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
Words in the singular include the plural and vice versa.
A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
5. Provision of the Service
5.1We will provide the Service:
5.1.1in accordance with this Agreement;
5.1.2in compliance with any Documentation;
5.1.3in compliance with all applicable Laws;
5.1.4in accordance with Good Industry Practice; and
5.1.5using suitably skilled, experienced and qualified Personnel.
5.2We may update the Service from time to time in our sole discretion (each an Update), provided that no additional Fees will be payable by you for any Update and we will:
5.2.1ensure that within the Service, we provide information regarding changes in functionality incorporated in any Update which we consider, acting reasonably, that you may need to know, at the same time as we release such Update into the production environment;
5.2.2provide any additional information in respect of any Update reasonably requested by you in order to enable you to verify the impact of the Update on the Service;
5.2.3without limiting any obligations in any Order Form use commercially reasonable efforts to ensure that Updates do not materially impair the core functionality of the Service, subject to the acknowledgments in clause 5.5; and
5.2.4ensure that:
5.2.4.1each Update complies with the terms of this Agreement; and
5.2.4.2the Service will continue to comply with the terms of this Agreement following implementation of the Update.
5.3Without limiting clause 5.1, we will use best endeavours in accordance with Good Industry Practice to ensure the Service is secure and free from viruses or other harmful code.
5.4We are not in breach of our obligations to ensure that the Service meets the requirements of clause 5.1, 5.8 or 7.6.4 to the extent that the non-compliance is directly caused by:
5.4.1any failure by you to use the Service in accordance with the Documentation or otherwise to comply with your obligations under this Agreement; or
5.4.2a Force Majeure event.
5.5Without limiting the other terms of this Agreement, you acknowledge that we cannot guarantee that the Service will operate and perform entirely uninterrupted or error free.
5.6Our provision of the Service to you is non-exclusive. Nothing in this Agreement prevents us from providing the Service to any other person.
5.7Terminal equipment and communications links and systems compatibility (and all costs associated with such items) are your sole responsibility. We accept no responsibility for any unavailability of, or defects in, the Website or the Service to the extent such unavailability or defects arise out of or in connection with terminal equipment or communications links or systems compatibility, or your (or your Personnel's) failure to make payment of the costs for such items. This clause shall not apply to the extent that you have relied on our expertise and advice in relation to such integration and system requirements and compatibility.
5.8We will use commercially reasonable efforts to maintain the Service with a target availability of 99% uptime per calendar month, excluding scheduled maintenance windows with at least 24 hours' notice and periods of unavailability directly caused by Force Majeure events, provided that this commitment is subject to the warranty disclaimers in clause 12.
6. Your Obligations
6.1You and your Personnel must only use the Service for your own internal business purposes and the internal business purposes of your Related Entities. You must not resell or make available the Service to any third party (other than, to avoid doubt, a Related Entity), or otherwise commercially exploit the Service for any reason.
6.2When accessing the Service, you and your Personnel must:
6.2.1use the Service in accordance with all applicable laws;
6.2.2not impersonate another person or misrepresent authorisation to act on behalf of others or us;
6.2.3ensure that all electronic transmissions sent through the Service accurately identify the Authorised User on whose behalf they are sent and do not misrepresent the sender's identity or authority;
6.2.4not knowingly undermine the security or integrity of the Underlying Systems;
6.2.5not knowingly use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service;
6.2.6not attempt to view, access or copy any material or data other than the Customer Data, and other material or data:
6.2.6.1that which you are authorised to access; and
6.2.6.2to the extent necessary for you to use the Service in accordance with this Agreement; and
6.2.7neither use the Service, nor transmit, input or store any Customer Data, in a manner that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.
6.3You are responsible for keeping all access information, including email addresses and log-on credentials, secret and secure. Without limiting the foregoing, you agree:
6.3.1not to disclose and to ensure that Authorised Users do not disclose their username or log-on credentials to any other person;
6.3.2to ensure that none of your Personnel (or any other person under your control) accesses the Service except as an Authorised User, including but without limitation, through hacking or password mining;
6.3.3to inform us, within a reasonable period of time, of any known or suspected access to and use of the Service by anyone who is not an Authorised User; and
6.3.4you have sole responsibility for setting the administration privileges of all your Authorised Users and for monitoring whether those privileges are being adhered to.
6.4You must ensure that each of your Authorised Users strictly comply with the Terms. You shall be responsible (and liable) for any failure of any of your Authorised Users to comply with the Terms (as if it were a breach by you of the Terms).
6.5You are responsible for procuring all necessary authorisations, consents and approvals reasonably required for you and your Authorised Users to use the Service, including to use, store and input Customer Data into, and process and distribute Customer Data through, the Service in accordance with this Agreement.
6.6You acknowledge that the Service is provided from New Zealand and agree to comply with all applicable export control and sanctions laws.
7. Customer Data
7.1You acknowledge that:
7.1.1we may require access to the Customer Data to perform our obligations under the Terms. We will only otherwise use Customer Data as instructed by you;
7.1.2to the extent that this is necessary but subject to clause 8, we may authorise a member of TalentJam's Personnel to access the Customer Data but solely to the extent strictly necessary for the purpose of performing our obligations under the Terms; and
7.1.3we are not responsible for, and have no liability in respect of, how you or any of your Personnel use the Customer Data or the Service. If we become aware that the Customer Data provided to us includes unlawful content, we will promptly notify you of that so that you can remedy the situation. If you do not remedy the situation in a timely manner we reserve the right to remove from our servers any content that is likely to expose us to potential liability.
7.2Any member of the TalentJam Personnel given access to the Customer Data for the purposes of providing the Services will be appropriately trained in the handling of Confidential Information and Personal Information.
7.3You acknowledge and agree that:
7.3.1we may:
7.3.1.1use Customer Data and information about your use of the Services to generate anonymized and aggregated statistical and analytical data (Analytical Data). Analytical Data, when generated, does not include your Customer Data or Confidential Information and must not enable the identification or singling out of any of your Personnel or any other individual; and
7.3.1.2use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights
7.3.2our rights and obligations under clause 7.3.1.1 above will survive termination of expiry of the Agreement; and
7.3.3title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
7.4While we will take measures in accordance with Good Industry Practice to back-up all Customer Data stored using the Service, you agree to keep a separate back-up copy of all Customer Data uploaded by you onto the Service.
7.5You acknowledge and agree that to the extent Customer Data contains personal Information, in collecting, holding and processing that information, we are acting as your agent or processor (depending on the applicable Privacy Laws).
7.6In connection with this Agreement we will:
7.6.1implement and maintain appropriate security measures as required by Privacy Laws including to prevent the loss of, unauthorised access, use, processing, modification, disclosure, accidental loss or destruction of or damage to, and any other misuse relating to, the Customer Data held, accessed or controlled by us;
7.6.2comply with all Privacy Laws and not do anything (or omit to do anything) with Customer Data that would cause you to breach Privacy Laws;
7.6.3take all reasonable steps to prevent a Security Breach;
7.6.4if we become aware that a Security Breach has occurred, we will notify you as soon as possible in writing after becoming aware of such Security Breach (and in any event within 72 hours) and promptly:
7.6.4.1investigate and take reasonable steps to remedy the Security Breach;
7.6.4.2cooperate with reasonable requests for information about the Security Breach.
7.6.5cooperate with any request from you for a privacy impact assessment, audit or in relation to Personnel exercising their rights under Privacy Laws;
7.6.6on your request, make available to you all information necessary to demonstrate compliance with the obligations in this clause 7 and clause 8 below;
7.6.7ensure that the Service includes a functionality for you to extract your Customer Data and assist you with such extraction without cost or charge, at any time up until 30 days after termination or expiry of our Agreement. Alternatively, at your request, we will delete all copies of your Customer Data (unless and to the extent we are permitted to retain that Customer Data under the Privacy Policy); and
7.6.8if we consider that any request or instruction by you in relation to Customer Data infringes Privacy Law, we will immediately inform you of that.
8. Privacy
8.1We collect and process Personal Information when you (or your Personnel, as applicable) access or use the Website and/or the Service.
8.2Our collection, access to and use of all such Personal Information is governed by our Privacy Policy.
8.3By agreeing to the Terms, you also agree to the way we handle your (and your Personnel's) Personal Information under our Privacy Policy. Our Privacy Policy (as changed from time to time in accordance with that Privacy Policy, provided that changes will not result in a material reduction in the level of protection provided for your Personal Information during the term of our Agreement) forms part of the Terms.
8.4You must comply with all Privacy Laws applicable to you (including the NZ Privacy Act 2020 and, to the extent applicable, the European Union General Data Protection Regulation) in connection with your collection and use of any Personal Information of any person under this Agreement.
8.5You will not (and will ensure your Personnel do not) use the Services:
8.5.1to collect Personal Information about third parties, including without limitation, e-mail addresses in a way that is not contemplated or required for receipt or provision of the Services; or
8.5.2in a way that violates (or may be considered inconsistent with) the applicable Privacy Laws (including in a way that prevents the exercise of an individual's rights under them).
9. Fees and Payment Terms
9.1You will pay us the Fees (plus any applicable GST and other sales taxes where we are required to charge them) for the Service that we have supplied to you in accordance with this Agreement.
9.2Fees will be automatically charged to your nominated payment method on the first day of each Billing Period.
9.3Where an Order Form agrees payment by invoice, but does not specify otherwise, you will pay us each invoice(s) on the 20th day of the month in which the invoice was received provided it is received by you on the 5th of that month, otherwise you will pay us by the 20th day of the following month.
9.4The Fees set out in the applicable Order Form are the total amounts payable to us. You will not be required to pay any other amounts to us, including for any expenses.
9.5Where we have not agreed a separate Order Form with you the following shall apply:
9.5.1demonstration trials entitle registered users to a thirty (30) day free trial of the paid Service utilising demonstration data. Upon the conclusion of a free trial, all demonstration data will be reset, and any data entered by any user accessing the trial during the period may be permanently deleted without recovery;
9.5.2a valid credit card is required for paying accounts unless an alternative payment method has been agreed with us;
9.5.3the Fees are as per the Website, as displayed during plan selection, or as otherwise provided. All pricing is in NZD unless otherwise stated;
9.5.4you will select a Billing Period during your account setup process with the Service. The Fees are based on your selected Billing Period and are billed in advance at the beginning of each Billing Period. The Fees are calculated based on: (a) the number of active people you manage at the beginning of each Billing Period; and (b) pro-rated Additional Fees for active people added or removed during the Billing Period as set out in clauses 9.5.5 and 9.5.6;
9.5.5when additional Authorised Users or add-on services are added during a Billing Period, we may charge you for those additional Authorised Users or add-on services for the remainder of that Billing Period on a pro-rated basis (Additional Fee). For annual Billing Periods, charges for additional Authorised Users may be offset by any Authorised Users previously removed during the same Billing Period. The Additional Fee will be charged immediately upon addition of the Authorised Users or add-on services;
9.5.6when Authorised Users or services are removed during a monthly Billing Period, we may (but are not obliged to) provide a credit for the unused portion of that Billing Period, which credit will be applied against the Fees payable for the following Billing Period and is not refundable. No credits will be provided for users or services removed during an annual Billing Period, as annual Billing Periods are offered at a discounted rate in consideration for the annual commitment;
9.5.7we may change the Fee with thirty (30) days' notice to existing customers who have not signed a separate Order Form with us. Such notice may be provided by posting the changes to our website, the Service or by email. Fee changes will take effect at the start of the next Billing Period after the expiry of the thirty days. If you do not agree to a Fee increase, you may terminate this Agreement by providing notice within the 30-day notice period, and you will be entitled to a pro-rata refund of any Fees paid in advance for the Billing Period after termination takes effect;
9.5.8you may provide notice cancelling your subscription at any time. However, your subscription will not end until the end of your current Billing Period. No refunds will be provided for the remainder of any Billing Period. Credits for removed Authorised Users or services under clause 9.5.6 will not be provided for removals occurring after cancellation notice is given. Any Additional Fees for the final Billing Period remain payable and will be charged at the end of that Billing Period, offset by any credits accrued prior to cancellation notice.
9.5.9if your nominated payment method fails, we will notify you and you will have five (5) business days to update your payment method. Failure to provide valid payment information may result in suspension of the Service.
9.5.10all Fees are exclusive of taxes. Where required by applicable law, we will add relevant taxes (including but not limited to GST, VAT, or sales tax) to your invoice. You are responsible for any taxes, duties, or other governmental charges related to your use of the Service in your jurisdiction(s).
9.5.11you may upgrade or downgrade your plan at any time by selecting a different plan through the Service. Plan changes will take effect immediately, with charges or credits calculated on a pro-rated basis for the remainder of the current Billing Period. For monthly Billing Periods, credits from plan downgrades may be applied to the following Billing Period. For annual Billing Periods, no credits will be provided for plan downgrades, but charges for plan upgrades may be offset by any previous downgrades during the same Billing Period
9.6Where agreed in an Order Form, we must submit invoices to you:
9.6.1that include all applicable taxable supply information as defined in the Goods and Services Tax Act 1985;
9.6.2at the times and, where applicable, in the amounts, set out in the applicable Order Form or, if no time is specified, by the last day of the month in which the Service specified in the invoice were supplied; and
9.6.3in a format and with such supporting information as you reasonably require (including, where possible, specifying the relevant purchase order number).
9.7If you dispute in good faith the whole or any portion of any valid tax invoice, you will pay the portion of the valid tax invoice that is not in dispute, but may withhold payment of the disputed portion until the dispute is resolved.
10. Intellectual Property
10.1Subject to clause 10.2, title to, and all Intellectual Property Rights in, the Service, the Website, the TalentJam Content and all Underlying Systems is and remains our property (or our licensors' property). You do not have any interest in such Intellectual Property Rights other than the right to use the Service in accordance with the terms of this Agreement.
10.2Title to, and all Intellectual Property Rights in, the Customer Data (as between the parties) remains your property.
10.3If you or any of your Personnel provide us with ideas, comments or suggestions relating to the operation or functionality of the Website, Service or Underlying Systems (together Customer Feedback):
10.3.1all Intellectual Property Rights in that the Customer Feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
10.3.2we may use or disclose the Customer Feedback for any purpose on an anonymised basis and without connection to you or your brand, unless agreed otherwise in writing in advance.
10.4You acknowledge that the Service may link to third party websites or feeds that are connected or relevant to the Service. Any link from the Service does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
11. Confidentiality
11.1Subject to clause 11.2, each party must:
11.1.1keep confidential at all times the Confidential Information of the other party except where the other party expressly agrees otherwise;
11.1.2effect and maintain adequate security measures to safeguard the other party's Confidential Information from unauthorised access or use; and
11.1.3disclose the other party's Confidential Information to its Personnel or professional advisors on a need to know basis only and, in that case, ensure that any Personnel or professional advisor to whom it discloses the other party's Confidential Information is bound by, and complies with terms equivalent to this clause 11.
11.2The obligation of confidentiality in clause 11.1 (other than 11.1.2) does not apply to any disclosure or use of Confidential Information:
11.2.1required by law (including under the rules of any stock exchange);
11.2.2which is publicly available through no fault of the recipient of the Confidential Information or its Personnel;
11.2.3which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
11.2.4by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 11.
11.3We may list you as a client on our website and in promotional materials, and may make factual statements about our provision of services to you, provided we do not disclose your Confidential Information. You may opt out of such client listings and promotional references by providing written notice to us. Following such notice, we will remove existing references within 30 days and will not make any new references to you as our client.
12. Warranties
12.1Each party warrants that it has full power and authority to enter into, and perform its obligations under, the Agreement.
12.2To the maximum extent permitted by Law and except to the extent agreed otherwise in an Order Form:
12.2.1all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded; and
12.2.2we make no representation concerning the quality of the Service and do not promise that the Service will meet your requirements or be suitable for a particular purpose.
12.3You agree and represent that you are acquiring the Service, and entering into this Agreement, for the purpose of trade. The parties agree that:
12.3.1to the maximum extent permissible by law, the New Zealand Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Service or the Terms; and
12.3.2it is fair and reasonable that the parties are bound by this clause 12.3.
12.3.3Where legislation or rule of law implies into the Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Terms. However, our liability for any breach of that condition or warranty is subject to the limitation of liability in clause 13.
13. Liability
13.1Subject to clause 13.3, a party's liability to the other under this Agreement (whether in contract, tort or otherwise), other than our liability to you for breach of clause 7 or clause 8 which shall be subject to clause 13.6, shall not exceed in each 12 month period from the Start Date: an amount equal to the aggregate Fees paid or payable in that 12 month period (or, if the claim arises in the first 12 months from the Start Date, the aggregate Fees payable since the Start Date multiplied by (365/x) where x equals the number of days since the Start Date up to the claim).
13.2A party (First Party) will have no liability to the other party (Second Party) under or in connection with this Agreement (whether in contract, tort or otherwise) in respect of any:
13.2.1indirect, consequential or special Losses suffered or incurred by the Second Party; or
13.2.2loss of data (other than the costs of reconstituting data to the last available backup), loss of profits, revenue, business or goodwill.
13.3The limitations and exclusions on liability in this clause 13 do not apply to:
13.3.1your and our liability:
13.3.1.1for acting fraudulently;
13.3.1.2for deliberate conduct by the relevant party where that party knows that they are committing, and intend to commit, a breach of duty or contractual obligation and intend to cause harm (or are reckless in the sense of not caring whether they are breaching a duty or contractual obligation which may cause harm);
13.3.1.3to the extent such liability cannot be excluded by Law;
13.3.2your liability under clause 13.4.
13.4You will indemnify us for the total amount of any Losses that we suffer or incur as a result of any claim that our use and processing of any Customer Data infringes the Intellectual Property Rights of a third party (Content Claim), provided that:
13.4.1we promptly notify you of the Content Claim;
13.4.2we allow you to have full control over the conduct of the defence of the Content Claim and all settlement negotiations; and
13.4.3we cooperate with your reasonable requests for assistance,
provided that in no case will you settle any Content Claim without our consent (such consent not to be unreasonably withheld or delayed).
14. Termination and Suspension
14.1You may terminate this Agreement and cancel your right to access and use the Service at any time by email sent to
[email protected]. Your right to access and use the Service, and your obligation to pay the Fees will continue until the end of your then current Billing Period or, where we have agreed an Order Form, to the end of the then current initial or renewal term specified in the relevant Order Form.
14.2Either party may, by notice to the other party, immediately terminate this Agreement and your right to access and use the Service if the other party:
14.2.1materially breaches any provision of this Agreement and the breach is not:
14.2.1.1remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
14.2.1.2capable of being remedied; or
14.2.1.3persistently breaches any provision of our Agreement;
14.2.2is subject to an Insolvency Event.
14.3Termination of these Terms does not affect either party's rights and obligations that accrued before that termination.
14.4On termination of these Terms, you must pay all Additional Fees for the final Billing Period.
14.5Without limiting any other right or remedy available to us, we may, on reasonable notice to you (such notice to be not less than 24 hours) restrict or suspend your access to and use of the Service if we consider that you:
14.5.1undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;
14.5.2used, or attempted to use, the Service:
14.5.2.1for improper purposes; or
14.5.2.2in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;
14.5.2.3transmitted, inputted or stored any Data that breaches or may breach this Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading;
14.5.2.4otherwise materially breached this Agreement; or
14.5.2.5at our sole discretion, any business we deem to be connected to, or materially operating from Russia,
or if we consider that an Authorised User has done any of the above, we may suspend that Authorised User's access.
14.6If we suspend access to the Service under clause 14.5, we will lift that suspension and allow access again once the event or issue which led to the suspension has been resolved. Any suspension under this clause 14.5 shall not excuse you from your obligation to make payments under this Agreement.
15. Miscellaneous
15.1Neither party is liable to the other for any failure to perform its obligations under the Terms to the extent caused by Force Majeure. If the Force Majeure event prevents or delays the performance of any obligations under this Agreement for a continuous period of more than 20 Working Days, the non-affected party may terminate this Agreement by giving 10 Working Days' notice to the affected party. On the expiry of the notice period, this Agreement will terminate. Neither party will have any liability to the other in respect of termination of this Agreement due to a Force Majeure event, but such termination will be without prejudice to rights and liabilities which have accrued prior to termination.
15.2We may assign, novate or transfer any of our rights or obligations under this Agreement where such assignment, novation or transfer is part of a sale of all or substantially all of our business assets. We will provide you with at least 20 Working Days' notice of any such proposed assignment, novation or transfer in accordance with clause 15.4. Within that notice period, you may decline the assignment, novation or transfer, but only on reasonable grounds (including concerns about the assignee's financial stability, data security capabilities, or ability to perform the services). If you do not provide notice declining the assignment, novation or transfer within the notice period, you will be deemed to have consented to it. If you decline the assignment, novation or transfer, this Agreement will terminate at the end of the notice period. Upon such termination, we will refund you a pro-rated portion of any Fees paid in advance for the Billing Period in which termination occurs, and your access to the Service will cease immediately upon termination.
15.3No person other than you and us has any right to a benefit under, or to enforce, the Terms, but Losses suffered by a Related Entity in relation to this Agreement are deemed to be Losses suffered or incurred by you for the purposes of this Agreement.
15.4Any notice or other communication to be given under this Agreement will be in writing and delivered by email as follows:
15.4.1Where we have agreed an Order Form with you, to the address set out in the Order Form, or such other address as you may designate by written notice to us;
15.4.2Where no Order Form is agreed, to the email address of the user designated as the service owner (or equivalent billing contact role) within the Service.
15.5You are responsible for:
15.5.1maintaining current contact information; and
15.5.2ensuring your designated contact has authority to receive notices on your behalf.
15.6Notices sent by email will be deemed received on the date of transmission, if within business hours on a business day in the receiving jurisdiction, otherwise it will be deemed to have been received on the following business day, provided that no delivery failure notification is received by the sender.
15.7This Agreement, and any dispute relating to this Agreement, is governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
15.8If any part or provision of this Agreement is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from this Agreement. The remainder of this Agreement will be binding on you.
15.9Any provision that by its nature should survive the termination or expiry of this Agreement (or is necessary for the interpretation or enforcement of the terms) shall survive any termination or expiry.
15.10This Agreement, together with the documents referred to in this Agreement, constitute the entire agreement between the parties with respect to the use of the Service and supersede all prior or contemporaneous understandings regarding such subject matter.
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