Terms of Business

1.1 Application. These Terms apply to all Services supplied by Monocula Limited ("Monocula") to the Client (as defined below), unless there is a separate written agreement signed by both parties which excludes these Terms.

1.2 Agreement. Subject to clause 1.1:

1. by signing a SOW or Order Form, the Client agrees to these Terms; and
2. the Agreement between the parties is formed when a SOW or Order Form is signed by both parties.

1.3 Exclusion of Client terms. The Agreement applies to the exclusion of any standard or other terms the Client may have for the purchase of goods or services, including any terms the Client may have included in any purchase order issued by the Client.

2.1 Changes to Terms. Monocula may change these Terms at any time by notifying the Client of the change by posting a notice on the Website. Unless otherwise agreed in writing by the parties, any change applies only to SOWs or Order Forms entered into following that date. The Client is responsible for ensuring it is familiar with the latest Terms. The Client will be bound by the changed Terms if, from the date on which the Terms are changed, the Client signs a SOW or Order Form.

2.2 Last updated. These Terms were last updated on [insert date].

3.1 Definitions. In the Agreement the following words have these meanings unless the contrary intention appears:

3.2 Precedence. If there is any conflict between these Terms and a SOW or Order Form, these Terms prevail unless expressly stated otherwise in the SOW or Order Form.

4.1 Ordering Professional Services. Professional Services may be ordered by the Client pursuant to an Order Form or SOW describing the work to be performed, Fees and any applicable milestones, dependencies and other technical specifications or related information relating to the Professional Services. Each SOW or Order Form (as applicable) must be signed by both parties before Monocula will commence work under the applicable Order Form or SOW.

4.2 Standard of Professional Services. Monocula will provide Professional Services (if any) for the Client in accordance with the information set forth in the applicable Order Form or SOW. Monocula will provide Professional Services using reasonable commercial endeavours to achieve any time-scales specified in the Order Form or SOW and will perform all Professional Services in a professional and workmanlike manner.

4.3 Completion. Subject to the terms of the applicable Order Form or SOW, Monocula will be deemed to have completed the Professional Services: (a) when Monocula has complied with the acceptance/completion criteria (if any) specified in the Order Form or SOW; (b) if no acceptance/completion criteria have been specified in the Order Form or SOW, when Monocula notifies the Client of completion; or (c) where the Professional Services are provided on a time and materials basis, when time and materials have been furnished.

Monocula will arrange for the Third Party Provider to provide the Third Party Products to the Client. The Third Party Products will be provided to the Client subject to the terms required by the applicable Third Party Provider, as amended from time to time ("Third Party Terms"). The Client must comply with all Third-Party Terms. In no event will Monocula have any liability with respect to the Third Party Products or for any failure of a Third Party Provider to comply with the applicable Third-Party Terms. Monocula will notify Client as soon as reasonably practicable if Monocula is no longer able to provide all or part of the Third Party Products.

6.1 Fees and Payment. In consideration for Monocula providing the Services, the Client will pay the Fees. The Client will pay the Fees to Monocula as set forth in the applicable Order Form or SOW. Unless as otherwise expressly stated in the applicable Order Form or SOW, all Fees are due within 30 days of the date of an invoice from Monocula. Except as otherwise expressly set forth herein, all payments are non-refundable and will be made without right of set-off or chargeback.

6.2 Late payment. Any late payment by the Client will accrue interest at a rate of the lesser of (a) one and one-half percent per month or (b) the highest rate allowed by applicable law (in either case compounding, and itself to bear interest on a weekly basis) until payment is received in full (including any interest). If payment of any Fee is overdue, Monocula may suspend provision of any of the Services until the applicable Fee (together with any interest accrued) is paid in full.

6.3 Taxes. All taxes, duties, fees or other government levies or charges incurred by Monocula as a result of the execution or performance of the Agreement (other than taxes assessed on the profits or income of Monocula) will be paid by the Client. The Fees are stated exclusive of GST and GST will be charged to the Client at the rate prevailing at the time of supply where applicable, subject to Monocula providing the Client with a valid GST invoice.

6.4 Fee variations.

1. For Third Party Products supplied under a recurring subscription model, Monocula may increase the Fees for the Third Party Product at any time with effect from the start of a subscription period for that Third Party Product (but not the first subscription period) by giving the Client 90 days' notice. If the Client does not wish to pay the increased Fees for the Third Party Product, it may terminate its subscription to the Third Party Product in accordance with the non-renewal provisions set out in the applicable Order Form. If the Client does not terminate its subscription to the Third Party Product in accordance with the non-renewal provisions set out in the applicable Order Form, it is deemed to have accepted the increased Fees.
2. In addition to clause 6.4a, if, for reasons outside of Monocula's reasonable control, a Third Party Provider increases the price charged by that Third Party Provider to Monocula or imposes an additional or new charge for the Third Party Product, Monocula may, at any time, increase the Fees for the Third Party Product to reflect that increase or additional or new charge by giving the Client 45 days' notice. If:
   1. Monocula increases the Fees for a Third Party Product under this clause 6.4b;
   2. this materially increases the amount payable by the Client for the Third Party Product; and
   3. the Client does not wish to pay the increased Fees for the Third Party Product,

   the Client may terminate the Third Party Product on no less than 30 days' notice, provided the notice is received by Monocula before the effective date of the increase. If the Client does not terminate the applicable Third Party Product in accordance with this clause 6.4b, it is deemed to have accepted the increased Fees.

3. The Fees may also be varied from time to time by agreement in writing between the parties.

7.1 Retained Intellectual Property. The following Intellectual Property (including any modification, enhancement or derivative work of that Intellectual Property) remains the property of the current owner, regardless of its use in the Services:

1. Intellectual Property that existed prior to the date of the applicable Order Form or SOW; and
2. Intellectual Property that was developed independently of the Agreement.

7.2 Know-how. To the extent not owned by Monocula, the Client grants Monocula a royalty-free, transferable, irrevocable and perpetual licence to use for Monocula's own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by Monocula in the provision of the Services.

7.3 Ownership. The Client will have a license right to use or access any work product delivered as part of the Professional Services, solely for its internal business purposes. Other than the limited license described in the prior sentence and subject to clause 7.1, Monocula will retain all right, title and interest in and to any such Professional Services work product and results and any derivative, enhancement or modification thereof.

8.1 General. Monocula warrants that the Professional Services will, at the time they are provided, materially conform to any requirement set out in the SOW or Order Form.

8.2 Breach of warranty. If the Professional Services do not meet a warranty, at the Client's request and at Monocula's cost, Monocula must reperform the Professional Services so that they meet or satisfy that warranty. Monocula's obligation under this clause 8.2 is the Client's sole remedy against Monocula for breach of warranty.

8.3 Exclusion of warranties. Except as set out in this clause 8, and to the maximum extent permitted by law, the Services are provided on an "as is" and "as available" basis, and Client's use of the Services is at the Client's own risk. Monocula does not make, and disclaims, all other warranties (statutory, express or implied) which are not expressly referred to in the Agreement, including any warranties of merchantability, fitness for a particular purpose, availability or uninterrupted supply. The Client acknowledges that it is acquiring the Services for the purposes of a business and that the parties agree that, to the maximum extent permitted by law, no consumer protection laws apply to the supply of the Services or the Agreement and that it is fair and reasonable that such provisions are contracted out of for the purposes of the Agreement.

8.4 Third Party Products. The Client's rights and remedies in respect of the Third Party Products are solely and exclusively against the Third Party Provider. Monocula will pass through any warranties given by the Third Party Provider with respect to the Third Party Products ("Third Party Warranties"), but Monocula itself does not give any warranties, express or implied, in relation to the Third Party Products and will have no liability in relation to the Third Party Products except where the liability is directly caused by Monocula.

9.1 Exclusion of certain damages. Monocula will not be liable under or in connection with the Agreement for any loss of profits, revenue, reputation, business opportunity, anticipated savings or anticipated gains, any business interruption, any loss or corruption of data, any introduction of or exposure to malware, any special or punitive damages, or any indirect or consequential loss, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such liability or loss in advance.

9.2 Cap on liability. A party's entire liability to the other party, whether in contract, tort (including negligence), or otherwise, relating to the Services, any product, or the Agreement, shall in no circumstances exceed the lesser of (a) the amount actually paid by the Client for that part of the Services directly giving rise to the liability; (b) the amounts actually paid by the Client under the Agreement during the twelve (12) month period preceding the event giving rise to the claim.

9.3 Exceptions. The exclusions and limitations set out in this clause 9 will not apply to the Client's payment obligations under the Agreement or damages arising out of a party's breach of section 10 (Confidentiality).

9.4 Client's indemnity. The Client will defend, hold harmless and indemnify Monocula from and against any loss, claim, expense, damage, cost or liability suffered or incurred by Monocula arising as a consequence of, or in connection with, the Client's use of the Services.

10.1 Confidentiality. Both parties agree to use the same degree of care and skill they would use in the protection of their own information to keep confidential any Confidential Information of the other party and to take all appropriate steps which are reasonably necessary or desirable to ensure that such confidential information is not disclosed without the prior written consent of the other party.

10.2 Privacy. The parties will comply with all applicable Privacy Laws.

11.1 Termination for breach. Either party may immediately terminate the Agreement or any Order Form or SOW (in whole or in part) if the other party materially breaches the Agreement and does not cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching party.

11.2 Termination for insolvency. Either party may immediately terminate the Agreement or any Order Form or SOW (in whole or in part) if the other party (a) is, becomes, or is deemed to be, insolvent or bankrupt and is incapable of performing its obligations; (b) makes an assignment for the benefit of, or enters into or makes any arrangement or composition with, its creditors; (c) goes into receivership or has a receiver, trustee and manager (or either of them) (including a statutory manager) appointed in respect of all or any of its property; or any resolution is passed, or any order is made in a proceeding, for the winding up or liquidation of a party.

11.3 Consequences of termination.

1. Upon the effective date of termination of the Agreement: (a) Monocula will immediately cease providing the Services; (b) each party must, at the other party's request following the termination or expiry of the Agreement, return to the other party or destroy all Confidential Information of the other party in the first party's possession or control; and (c) the Client will immediately pay any Fees accrued but unpaid for Services provided prior to the date of termination.
2. If an Order Form or SOW is terminated without the Agreement being terminated, then the remaining portions of the Agreement (including any other Order Forms or SOWs) continue in full force and effect.
3. Clause 11.3a applies, with all necessary changes, to termination of an Order Form or SOW.

11.4 Survival. The obligations of the parties under the Agreement, which by their nature would continue beyond termination, cancellation, or expiration of the Agreement, will survive any such termination, cancellation, or expiration.

12.1 No agency. The parties agree and acknowledge that the relationship between them is that of independent contractors under the Agreement. It is not one of partnership, joint venture, agency, or any other type of relationship.

12.2 Assignment. Neither party may assign any of its obligations without the prior consent in writing of the other party, which consent shall not be unreasonably withheld. However, either party may assign the Agreement in connection with a merger or reorganisation of that party, or of a sale of the whole or a substantial part of that party's business or assets.

12.3 Rights of third parties. No person other than the Supplier and the Client has any right to a benefit under, or to enforce, the Agreement.

12.4 Entire agreement. The Agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that matter. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Agreement's start. The parties agree that it is fair and reasonable that the parties are bound by this clause 12.4.

12.5 Severability. The illegality, invalidity, unenforceability of any provision of the Agreement shall not affect the legality, validity or enforceability of any other provision.

12.6 No waiver. No exercise or failure to exercise or delay in exercising any right or remedy by a party will constitute a waiver by that party of that or any other right or remedy available to it.

12.7 Variation. Except as specifically provided, no amendment to the Agreement will be effective unless it is in writing and signed by both parties.

12.8 Notices. Any notice hereunder must be in writing and delivered in person or by courier, sent by email or confirmed facsimile (fax), or mailed by certified or registered mail, postage prepaid, return receipt requested, and addressed as set forth on the SOW or Order Form or to such other address as advised by one party to the other in writing. If notice is given in person, by courier or by email or fax, it will be effective upon receipt; and if notice is given by mail, it will be effective five (5) Business Days after deposit in the mail.

12.9 Governing law. The Agreement is governed by the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.

12.10 Disputes. If a dispute arises in respect of the Agreement, either party may serve on the other party a notice setting out, in summary, the nature of the dispute ("Dispute Notice"). Representatives of the parties will meet within 10 Business Days of the Dispute Notice to attempt to resolve the dispute (either party may use mediation or expert opinion to assist). If the dispute is not resolved within 10 Business Days of the Dispute Notice, the dispute will be finally settled by the courts of New Zealand.

12.11 Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service (other than any payment obligations) as a result of causes beyond its reasonable control. For the avoidance of doubt, this will include any failure in the performance of internet services provided or controlled by a third party.

12.12 Counterparts. The Agreement may be executed in counterparts including facsimile, PDF and other electronic copies, each of which will be deemed an original and together will constitute the same instrument.