Service Agreement: Standard Terms and Conditions
1. Definitions and interpretation
1.1 Definitions
In this Agreement, unless the contrary intention appears:
(1) Agreement means these standard terms and conditions, the Order Form and any schedule or annexure;
(2) Automaker means the original equipment manufacturer which licenses the Information to AutoPlay for incorporation into the Services;
(3) Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in Sydney, NSW;
(4) Cloud Provider means a service provider that provides the computing infrastructure (including on a managed services or “as a service” basis) on which the Services are provided, as determined by AutoPlay from time to time;
(5) Customer Data means all data (whether or not it includes personal information) stored by the Customer or its Users on the Services;
(6) Documentation means the user manual, training material, frequently asked questions and similar materials relating to the Services, as provided by AutoPlay to the Customer in electronic form from time to time;
(7) Fees means all fees and charges payable by the Customer under this Agreement, including as set out in the Order Form;
(8) Information means the information relating to parts, prices and update information for motor vehicles marketed and distributed the Automaker, and supplied to the Customer by AutoPlay as part of the Services;
(9) Insolvency Event means:
(a) the Customer suspends payment of its debts generally, or is or becomes unable to pay its debts when they are due, or is or becomes unable to pay its debts within the meaning of the Corporations Act 2001 (Cth);
(b) the Customer ceases, or threatens to cease, to carry on business; or
(c) a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the Customer's assets or undertakings, an application or order is made for the winding up or dissolution of the Customer, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the Customer, except for the purpose of an amalgamation or reconstruction which has AutoPlay's prior consent;
(10) Intellectual Property Rights means copyright, trade mark, moral rights, confidential information, design, patent, trade, business or company names, or other proprietary rights, or any rights to the registration of those rights and any applications to register those rights (anywhere in the world);
(11) Interface means the proprietary processes and systems developed by AutoPlay or any other third party, including but not limited to, software, hardware, specifications, data formats, security codes and other intellectual property, allowing for the transfer of data between the Services and any third party system or systems;
(12) Malicious Code means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
(13) Order Form means the order form executed by both parties for the provision of Services on these standard terms and conditions;
(14) Permitted Purpose means the listing of dealership vehicles on the Hou Garden website and sending the enquiry contact info back into the dealership’s instance of AutoPlay;
(15) Services means the hosted, on demand service identified in the Order Form, including any Updates;
(16) Subscription Date means the date for the commencement of the Services set out in the Order Form;
(17) Subscription Term means the term of the Services set out in the Order Form;
(18) Support Services means the support services set out in the Order Form;
(19) Updates means fixes, patches and updates to the Services which are made generally available from time to time by AutoPlay to subscribers of the Services;
(20) Usage Restriction means the usage restrictions set out in the Order Form; and
(21) Users means the Customer and its employees.
1.2 Interpretation
In this Agreement:
(1) reference to the singular includes the plural and the plural includes the singular, a person includes a body corporate and a party includes the party’s executors, administrators, successors and permitted assigns;
(2) reference to money is to New Zealand dollars, unless otherwise stated;
(3) “including” and similar expressions are not words of limitation;
(4) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;
(5) headings are for convenience only and do not form part of this Agreement or affect its interpretation;
(6) a provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement;
(7) if an act must be done on a specified day that is not a Business Day, it must be done instead on the next Business Day;
(8) if a party consists of more than one person, this Agreement binds each of them separately and any two or more of them jointly;
(9) an obligation, representation or
(10) in favour of more than one person is for the benefit of them separately and jointly; and
(11) a party which is a trustee is bound both personally and in its capacity as a trustee.
2. Services
2.1 Provision of Services
With effect from the Subscription Date, AutoPlay will provide the Services to the Customer and its Users in accordance with this Agreement.
2.2 Use of the Services
(1) The Customer must only access and use the Services in accordance with this Agreement.
(2) The Customer must only use the Services for the Permitted Purpose and in accordance with any Usage Restrictions.
(3) Except as expressly permitted under this Agreement, the Customer must not, and must not allow any other person to:
(a) permit or allow any other person, other than its Users, access (directly or indirectly) to the Services or Documentation;
(b) sub-license, disclose, resell, publish, transmit or otherwise make available to any third party, other than its Users, any part of the Services or Documentation;
(c) modify, copy or create derivative works based on the Services or reverse engineer the Services (except to the extent permitted by non-excludable laws);
(d) use the Services for hire or rental, timesharing or service bureau or to the benefit of any third party (other than the Users and the Customer’s clients in the ordinary course of running the Customer’s business);
(e) access or attempt to access the Information by any means other than via the Services;
(f) send or store unlawful material (including Malicious Code) by means of the Services;
(g) use the Services or the Information in a way likely to mislead or deceive, cause confusion, or prejudice the distinctiveness or value of the Services, or likely to prejudice the goodwill or reputation of AutoPlay;
(h) attempt to gain unauthorised access to, or disrupt or bypass the security, integrity or performance of, the Services or any data contained in it;
(i) use the Services in a manner reasonably likely to adversely affect other users of the Services; or
(j) use the Services for the purpose of creating a competitive product or service or copying its features or user interface.
(4) The Services and/or any Interface provided under this Agreement may contain portions of program code owned by third party licensors and such licensors will be entitled to enforce this Agreement as an intended third party beneficiary and AutoPlay holds the relevant rights of this Agreement on trust for the benefit of those third party licensors.
2.3 Changes to the Services
(1) Subject to clause 2.3(2), AutoPlay may make changes to the Services from time to time (including any Cloud Provider), provided that the change does not materially decrease the functionality of the Services. These changes may include Updates and other changes that are transparent to the Customer. Once incorporated, these changes will form part of the Services.
(2) AutoPlay may perform updates to the Services from time to time, including updates to the Information as periodically supplied by the Dealership. However, the Customer agrees that AutoPlay is under no obligation to perform, make or develop any specific enhancements to or customisation of the Services, although AutoPlay may offer such enhancements to the Customer during the Subscription Term.
(3) The Customer acknowledges that updates or enhancements may not be compatible with existing customisation, configuration or interfaces, and that AutoPlay is not liable for any cost or expense that the Customer incurs in implementing or correcting the customisation, configuration and interfaces in respect of any such updates or enhancements.
(4) The Customer agrees that it entered into this Agreement without relying on any warranty, representation or comments concerning any future functionality or features of the Services, and that the Customer has not relied on any warranty, representation or comments made by AutoPlay, including any roadmaps, with respect to future functionalities or features of the Services.
2.4 Customer Responsibilities
The Customer must:
(1) provide and configure its own internal facilities (including computers, terminals, software, telecommunications facilities and internet connectivity) which meet the minimum recommended specifications necessary for utilising the Services;
(2) do all things necessary so that AutoPlay is able to provide the Services in accordance with this Agreement;
(3) to the extent that an Interface is offered, ensure that it holds a valid licence or has a right to use any third party software to which the Interface connects;
(4) comply with AutoPlay’s reasonable directions relating to the Services; and
(5) maintain the confidentiality of all login credentials allocated to the Customer and its Users and not disclose them to any third party. If the Customer becomes aware of any unauthorised use of login credentials allocated to the Customer it must notify AutoPlay immediately by email [email protected]
2.5 Users
(1) The Customer is solely responsible for any access to or use of the Services by its Users and must ensure that its Users comply with this Agreement.
(2) The Customer acknowledges that any access to or use of the Services by means of a username assigned to a User (whether or not such use is in fact by that person) is deemed to be access or use by that User.
3. Other Services
3.1 Support Services
AutoPlay will provide the Support Services in accordance with the Order Form.
3.2 Provision of other services
At the request of the Customer, AutoPlay may (but is not obliged to) provide other services that are otherwise outside the scope of this Agreement (including services excluded from Support Services) at a Fee agreed by the parties.
4. Fee
4.1 Payment of Fee
(1) The Customer must pay AutoPlay all Fees in accordance with this Agreement and as may be set out in the Order Form.
(2) The Customer may nominate a third party to pay the Fees on its behalf.
4.2 Invoice
AutoPlay will invoice the Customer for the Fee on or before the date on which the Fee is due. The invoice must be a valid tax invoice. All invoices must be paid within 30 days of the date of the invoice.
4.3 Late payment
If the Customer fails to pay any invoice within 10 days after payment is due, then without limiting AutoPlay’s rights and remedies (including its right to suspend under clause 11 and terminate under clause 12) the Customer must, on demand, pay AutoPlay interest calculated at the rate that is 2% above the Reserve Bank of New Zealand cash rate, calculated and compounded daily, on that amount until the date of payment.
4.4 GST
Capitalised expressions in this clause have the same meaning as those expressions in the Goods and Services Tax Act 1985. Any amount that may be payable under this Agreement is exclusive of any GST. If a party makes a Taxable Supply in connection with this Agreement for a Consideration which represents its Value, then the Recipient of the Taxable Supply must also pay, at the same time and in the same manner as the Value is otherwise payable, the amount of any GST payable in respect of the Taxable Supply. The Recipient’s obligation to pay GST is subject to a valid Tax Invoice being delivered.
5. Intellectual Property
5.1 Reservation of rights
The Services and Documentation are protected by intellectual property laws. AutoPlay retains all rights (including Intellectual Property Rights) in relation to the Services and Documentation. The Customer has no proprietary or other interest in the Services or Documentation and nothing in this Agreement transfers any right, title or interest in the Services or Documentation to the Customer. To the extent necessary to use the Services, AutoPlay grants the Customer a non-exclusive, non-transferable and limited licence for the Customer and its Users to access and use the Services during the Subscription Term in accordance with this Agreement.
5.2 Ownership of modifications and improvements
(1) AutoPlay owns all improvements, adaptations modifications made to the Services and Documentation and all related Intellectual Property Rights, including any suggestions, enhancement requests, recommendations or other feedback provided by the Customer or Users. The Customer assigns any and all the rights that the Customer may have in those improvements and modifications to AutoPlay, and agrees to execute all additional documents requested by AutoPlay to give effect to such assignment.
(2) To the extent that AutoPlay (or its licensees or assignees) develops any updates, enhancements, new versions or new releases of the Services, they will be owned exclusively by AutoPlay.
6. Liability
6.1 Warranties
(1) Each party warrants that it is empowered and authorised to enter into this Agreement.
(2) The Customer warrants that it is engaged in the business of supplying or using Dealership’s vehicle listings and is authorised to access the Information.
(3) AutoPlay warrants that the Services will be performed substantially in accordance with the service description in the Order Form.
6.2 Exclusion of implied warranties
All statutory or implied conditions, guarantees and warranties are excluded by AutoPlay to the maximum extent permitted by applicable law. To the extent permitted by law, where liability under any condition, guarantee or warranty which cannot legally be excluded but can be validly limited, such liability is limited to:
(1) in the case of goods (including the Documentation), the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and
(2) in the case of the services (including the Services and Support Services), supplying the services again; or paying the cost of having the services supplied again.
6.3 No other warranties
(1) To the maximum extent permitted by law and subject to clause 6.2, AutoPlay disclaims and excludes any warranty, representation or undertaking as to the purpose for which the Services, Support Services, and Documentation may be suitable, including any purpose for which the Customer intends to use the Services, Support Services and Documentation.
(2) The Customer warrants to AutoPlay that it has not relied on any representation made by AutoPlay which has not been stated expressly in this Agreement, or upon any descriptions or specifications contained in any document including brochures, marketing and promotional materials produced by AutoPlay.
(3) While AutoPlay has taken due care in developing the Services, to the extent permitted by law, AutoPlay does not warrant, and excludes all representations and warranties that:
(a) the Services are error-free or has no defects;
(b) the Information is accurate, complete or up-to-date;
(c) access to the Services will be uninterrupted or error free;
(d) the Services are free from Malicious Code; or
(e) the Services meet the Customer’s requirements or are compatible with all operating systems and browsers.
6.4 Limitation and exclusion of liability
(1) Despite any other provision of this Agreement and to the maximum extent permitted by applicable law, AutoPlay and its third party licensors are not liable to the Customer under contract, tort or otherwise in any circumstances for any indirect, economic, special or consequential loss or damage, or in any event for any loss of revenue, loss of production, loss of use, loss of profit, loss of anticipated savings or loss of data.
(2) Subject to clause 6.2 and any laws the application of which may not be lawfully excluded, AutoPlay’s aggregate liability to the Customer on any basis and in any circumstances (including liability for negligence) arising out of or in connection with this Agreement, the Support Services, Services, Documentation or their use will not exceed, and is expressly limited to, the amount paid in the preceding three months by the Customer to AutoPlay in respect of the Services which give rise to the claim.
7. IP indemnity
7.1 Indemnity for third party claims
Subject to clauses 7.2 and 7.3, AutoPlay indemnifies the Customer from and against any and all losses suffered or incurred by the Customer arising out of or in connection with any claim, action or proceedings against the Customer by any third person (other than a related body corporate of Customer or a person associated commercially with the Customer) in connection with the Customer’s use of the Services, alleging an infringement by the Services itself of the Intellectual Property Rights of any third party (Third Party Claim), but only to the extent:
(1) that the losses are awarded by the final judgment of a court of competent jurisdiction; or
(2) of any settlement pursuant to this clause 7.
7.2 Procedures
If a Third Party Claim is made then:
(1) the Customer must notify AutoPlay as soon as practicable;
(2) AutoPlay may at its own cost conduct the defence of the Third Party Claim in the name of the Customer or negotiate any settlement of the Third Party Claim; and
(3) AutoPlay may elect at its sole discretion to do one or more of the following:
(a) modify, or arrange for the modification of, the Services (but without adversely affecting its functionality) to render its use non-infringing;
(b) at no cost to the Customer, render the relevant activity non-infringing by procuring the right to exercise the relevant Intellectual Property Rights of the relevant person; or
(c) terminate this Agreement and refund the Customer any Fees paid in advance.
7.3 Limitations
AutoPlay has no liability for any claim of infringement arising from:
(1) the Customer’s non-compliance with the Documentation or any instruction, directions or specifications issued by AutoPlay in relation to the Services;
(2) the combination use of the Services with any system or item not provided by AutoPlay;
(3) the failure of the Customer to use an Update; or
(4) the use of the Services in a way contrary to this Agreement or the intended use of the Services.
7.4 Entire liability
Despite any other provision in this Agreement, this clause 7 states the sole remedy of the Customer and entire liability of AutoPlay in relation to any allegations or claims of infringement of Intellectual Property Rights by any person in relation to the Services or its use.
8. Indemnity by the Customer
The Customer indemnifies AutoPlay from and against any and all losses suffered or incurred by AutoPlay arising out of or in connection with any claim, action or proceedings against AutoPlay by any third person (including a Cloud Provider) alleging that:
(1) the Customer Data or AutoPlay’s hosting of the Customer Data infringes the rights of that third party; and
(2) use by Customer or its Users of the Services in breach of this Agreement or the Documentation infringes or violates the rights of the third party, or causes AutoPlay to be in breach of any agreement with that third party.
9. Confidentiality
9.1 Services and Documentation are confidential
The Customer acknowledges and agrees that the Services and Documentation are confidential to AutoPlay, and the Customer must not, without the prior written approval of AutoPlay, disclose the Services or Documentation (or any copy or part of them) or use them for any purpose other than the purposes of this Agreement or the purposes for which the Services and Documentation were provided or made available to the Customer.
9.2 Exceptions
The Customer is not in breach of clause 9.1 to the extent that:
(1) the Services or Documentation are or become publicly available without breach of this Agreement; or
(2) the Customer is required by law or any court to disclose the Services or Documentation. Before disclosing the Services or Documentation under this clause 9.2(2), the Customer must give AutoPlay sufficient prior written notice (to the extent permitted by law) to enable AutoPlay to seek a protective order or other relief from disclosure.
9.3 Steps to avoid disclosure
The Customer must take all reasonable steps to ensure that its officers, employees, agents and contractors do not make public or disclose the Services or Documentation in breach of this clause 9.
10. Customer Data
10.1 Ownership of Customer Data
(1) The Customer will own and retain all right, title and interest in and to the Customer Data. The Customer may export the Customer Data from the Services by using the data export features of the Services.
(2) AutoPlay will not use or disclose the Customer Data except to the extent required to perform its obligations under this Agreement.
10.2 Responsibility for Customer Data
(1) The Customer will be responsible for the content of all Customer Data and for complying with all applicable laws in respect of the Customer Data.
(2) Without limiting the generality of clause 10.2(1), the Customer must ensure that it has obtained all necessary consents and authorisation, and given all necessary notices, as are required by law for AutoPlay to:
(a) receive, store and process the Customer Data as part of providing the Services; and
(b) collect and store, from time to time, certain data relating to the Customer’s use of the Services for its own internal purposes.
10.3 Security of Customer Data
AutoPlay will implement reasonable security measures to protect any Customer Data that is hosted on the Services from unauthorised access and disclosure.
10.4 Location of Customer Data
(1) The Customer acknowledges that, as part of providing the Services, AutoPlay may store or process Customer Data at a location outside Australia (including systems operated by the Cloud Provider). Upon reasonable notice AutoPlay will provide Customer with a list of all jurisdictions in which the Customer Data may be held.
(2) The Customer acknowledges that the nature of the Services means that AutoPlay may vary the storage location from time to time.
10.5 Deletion of Customer Data
The Customer acknowledges that AutoPlay may delete or destroy all Customer Data stored on the Services at any time after expiry of the Data Extraction Period set out in clause 12.5(1)(c).
11. Availability and suspension
11.1 Dependency on third parties
The Customer acknowledges and agrees that the availability of the Services depends upon permissions and services from third parties (including the Automaker, Cloud Provider and any other third party licensors), which may be varied or terminated from time to time by these third parties. Notwithstanding any other provisions of this Agreement, AutoPlay may, without prior notice to the Customer and without any liability on the part of AutoPlay:
(1) vary, terminate or limited the Services;
(2) suspend the Services; or
(3) vary the terms (including this Agreement) upon which the Services are provided,
if any third party varies or terminates the services provided by it so that AutoPlay is no longer able to provide the Services in accordance with this Agreement. If the Customer does not accept material variation to the Services or to this Agreement made by AutoPlay under this clause 11.1, then the Customer may terminate this Agreement by notice to AutoPlay within 60 days of such variation. If this Agreement is terminated under this clause 11.1 (whether by AutoPlay or the Customer), AutoPlay will refund to the Customer the amount of the Fees paid in advance in respect of the remaining portion of the Subscription Term.
11.2 Suspension
(1) AutoPlay may suspend the access to, and use of, the Services by Customer and its Users in the following circumstances:
(a) for any non-payment of Fees by the Customer;
(b) for the duration of any Force Majeure Event (as defined in clause 13.3);
(c) for any material breach of this Agreement by the Customer;
(d) if AutoPlay reasonably considers that suspension is necessary to protect the Services, the Customer Data, or any other computer systems and data (including in response to an external attack); or
(e) if the Customer is no longer permitted to access the Information.
(2) AutoPlay may, in its sole discretion, restrict, limit or alter any compromised login credentials (including any which AutoPlay suspects may have been compromised) so as to completely or partially disable access to the Services via the compromised login credentials.
(3) AutoPlay will give the Customer as much practicable prior notice of the suspension as possible, and will promptly end the suspension after the relevant circumstances have abated.
12. Term and termination
12.1 Expiry of Subscription Term
This Agreement commences on the Subscription Date and continues for the Subscription Term, unless terminated earlier.
12.2 Termination by the Customer
The Customer may terminate this Agreement at any time on 30 days’ written notice to AutoPlay provided, however, that:
(1) it is not in breach of this Agreement; and
(2) where the Customer wishes to terminate this Agreement prior to the end of a Subscription Term, it must pay a termination fee equal to the Fees that would have been payable in relation to the remainder of the Subscription Term.
12.3 Termination for cause
(1) Either party may terminate this Agreement immediately by notice in writing if:
(a) the other party is the subject of an Insolvency Event; or
(b) the other party fails to comply with any material provision of this Agreement and fails to remedy that failure within 20 Business Days after notice requiring it to be remedied.
(2) If this Agreement is terminated under this clause 12.2 by the Customer, AutoPlay will refund to the Customer the amount of the Fees paid in advance.
12.4 Termination for cause by AutoPlay
Without limiting other provisions, AutoPlay may terminate this Agreement immediately if the Customer:
(1) fails to pay any invoice within 10 Business Days after payment is due and such amount remains unpaid;
(2) assigns or otherwise disposes of any interest or right it has under this Agreement without the prior written consent of AutoPlay; or
(3) is no longer authorised to access the Information.
12.5 Effect of termination
(1) Upon termination of this Agreement for any reason:
(a) unless expressly set out otherwise, AutoPlay is not required to provide the Customer any refund of any paid Fees;
(b) all rights and licences granted under this Agreement terminate immediately, and the Customer must immediately cease to use the Services and Documentation, and return to AutoPlay or destroy all copies of the Documentation; and
(c) subject to the Customer paying all outstanding Fees, AutoPlay will continue to provide the Customer with access to the Services for a period of 10 Business Days (Data Extraction Period) for the sole purpose of allowing the Customer to extract the Customer Data from the Services. AutoPlay may disable other functionalities of the Services during the Data Extraction Period.
(2) Clauses 5, 6, 8, 9, 10, 12.5 and 13 survive termination of this Agreement.
13. General
13.1 No assignment
The Customer must not transfer, sub-license or assign any benefit or obligation under this Agreement to any third party without the prior written consent of AutoPlay. AutoPlay may, at any time, assign or sub-contract all or part of its rights and obligations under this Agreement.
13.2 Subcontract
AutoPlay may subcontract the performance of any part of its obligations to any person. AutoPlay will remain responsible to the Customer for the performance of any subcontracted obligations.
13.3 Force majeure
AutoPlay will not be liable for any or failure to perform or delay in performing any obligations under this Agreement to the extent caused by any cause or condition beyond its reasonable control, including fire, flood, act of God, war, insurrection, sabotage, acts of terrorism, industrial disturbance, failure of electrical or telecommunications networks, acts of vandalism and changes in legislation or regulations of any government (Force Majeure Event). The obligations of AutoPlay are suspended to the extent to which they are affected by the relevant Force Majeure Event as long as the Force Majeure Event continues.
13.4 Severability
If any provision in this Agreement is unenforceable, illegal or void or makes this Agreement or any part of it unenforceable, illegal or void, then that provision is severed and the rest of this Agreement remains in force.
13.5 Further assurance
Each party must promptly at its own cost do all things (including executing and if necessary delivering all documents) necessary or desirable to give full effect to this Agreement.
13.6 Entire understanding
This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement and supersedes any prior agreement or understanding on anything connected with that subject matter.
13.7 Variation
An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.
13.8 Waiver
A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right. A waiver is not effective unless it is in writing. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
13.9 Costs and outlays
Each party must pay its own costs and outlays connected with the negotiation, preparation and execution of this Agreement.
13.10 Notices
(1) A notice or other communication connected with this Agreement (Notice) has no legal effect unless it is in writing.
(2) In addition to any other method of service provided by law, the Notice may be:
(a) sent by prepaid priority post to the address of the addressee;
(b) sent by email to the addressee; or
(c) delivered at the address of the addressee.
(3) The notice details of each party are set out in the Order Form, as varied by each party by notice to the other.
(4) If the Notice is sent or delivered in a manner provided by clause 13.10(2), it must be treated as given to and received by the party to which it is addressed:
(a) if sent by post, on the 4th Business Day (at the address to which it is posted) after posting;
(b) if sent by email before 5.00pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt; or
(c) if otherwise delivered before 5.00pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.
(5) Despite clause 13.10(4)(b):
(a) an email message is not treated as given or received if within 2 hours after the time sent the sender receives an automated message that the email has not been delivered; and
(b) an email message is not treated as given or received if it is not received in full and in legible form and the addressee notifies the sender of that fact within 2 hours after the transmission ends or by 12 noon on the Business Day on which it would otherwise be treated as given and received, whichever is later.
(6) A Notice sent or delivered in a manner provided by clause 13.10(2) must be treated as validly given to and received by the party to which it is addressed even if:
(a) the addressee has been liquidated or deregistered or is absent from the place at which the Notice is delivered or to which it is sent; or
(b) the Notice is returned unclaimed.
13.11 Governing law and jurisdiction
The law of the New Zealand governs this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
13.12 Counterparts
This Agreement may be executed in any number of counterparts. Each counterpart is an original but the counterparts together are one and the same agreement. This Agreement is binding on the parties on the exchange of executed counterparts. A copy of an original executed counterpart sent by facsimile machine or by email:
(1) must be treated as an original counterpart;
(2) is sufficient evidence of the execution of the original; and
(3) may be produced in evidence for all purposes in place of the original.
1.1 Definitions
In this Agreement, unless the contrary intention appears:
(1) Agreement means these standard terms and conditions, the Order Form and any schedule or annexure;
(2) Automaker means the original equipment manufacturer which licenses the Information to AutoPlay for incorporation into the Services;
(3) Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in Sydney, NSW;
(4) Cloud Provider means a service provider that provides the computing infrastructure (including on a managed services or “as a service” basis) on which the Services are provided, as determined by AutoPlay from time to time;
(5) Customer Data means all data (whether or not it includes personal information) stored by the Customer or its Users on the Services;
(6) Documentation means the user manual, training material, frequently asked questions and similar materials relating to the Services, as provided by AutoPlay to the Customer in electronic form from time to time;
(7) Fees means all fees and charges payable by the Customer under this Agreement, including as set out in the Order Form;
(8) Information means the information relating to parts, prices and update information for motor vehicles marketed and distributed the Automaker, and supplied to the Customer by AutoPlay as part of the Services;
(9) Insolvency Event means:
(a) the Customer suspends payment of its debts generally, or is or becomes unable to pay its debts when they are due, or is or becomes unable to pay its debts within the meaning of the Corporations Act 2001 (Cth);
(b) the Customer ceases, or threatens to cease, to carry on business; or
(c) a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the Customer's assets or undertakings, an application or order is made for the winding up or dissolution of the Customer, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the Customer, except for the purpose of an amalgamation or reconstruction which has AutoPlay's prior consent;
(10) Intellectual Property Rights means copyright, trade mark, moral rights, confidential information, design, patent, trade, business or company names, or other proprietary rights, or any rights to the registration of those rights and any applications to register those rights (anywhere in the world);
(11) Interface means the proprietary processes and systems developed by AutoPlay or any other third party, including but not limited to, software, hardware, specifications, data formats, security codes and other intellectual property, allowing for the transfer of data between the Services and any third party system or systems;
(12) Malicious Code means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
(13) Order Form means the order form executed by both parties for the provision of Services on these standard terms and conditions;
(14) Permitted Purpose means the listing of dealership vehicles on the Hou Garden website and sending the enquiry contact info back into the dealership’s instance of AutoPlay;
(15) Services means the hosted, on demand service identified in the Order Form, including any Updates;
(16) Subscription Date means the date for the commencement of the Services set out in the Order Form;
(17) Subscription Term means the term of the Services set out in the Order Form;
(18) Support Services means the support services set out in the Order Form;
(19) Updates means fixes, patches and updates to the Services which are made generally available from time to time by AutoPlay to subscribers of the Services;
(20) Usage Restriction means the usage restrictions set out in the Order Form; and
(21) Users means the Customer and its employees.
1.2 Interpretation
In this Agreement:
(1) reference to the singular includes the plural and the plural includes the singular, a person includes a body corporate and a party includes the party’s executors, administrators, successors and permitted assigns;
(2) reference to money is to New Zealand dollars, unless otherwise stated;
(3) “including” and similar expressions are not words of limitation;
(4) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;
(5) headings are for convenience only and do not form part of this Agreement or affect its interpretation;
(6) a provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement;
(7) if an act must be done on a specified day that is not a Business Day, it must be done instead on the next Business Day;
(8) if a party consists of more than one person, this Agreement binds each of them separately and any two or more of them jointly;
(9) an obligation, representation or
(10) in favour of more than one person is for the benefit of them separately and jointly; and
(11) a party which is a trustee is bound both personally and in its capacity as a trustee.
2. Services
2.1 Provision of Services
With effect from the Subscription Date, AutoPlay will provide the Services to the Customer and its Users in accordance with this Agreement.
2.2 Use of the Services
(1) The Customer must only access and use the Services in accordance with this Agreement.
(2) The Customer must only use the Services for the Permitted Purpose and in accordance with any Usage Restrictions.
(3) Except as expressly permitted under this Agreement, the Customer must not, and must not allow any other person to:
(a) permit or allow any other person, other than its Users, access (directly or indirectly) to the Services or Documentation;
(b) sub-license, disclose, resell, publish, transmit or otherwise make available to any third party, other than its Users, any part of the Services or Documentation;
(c) modify, copy or create derivative works based on the Services or reverse engineer the Services (except to the extent permitted by non-excludable laws);
(d) use the Services for hire or rental, timesharing or service bureau or to the benefit of any third party (other than the Users and the Customer’s clients in the ordinary course of running the Customer’s business);
(e) access or attempt to access the Information by any means other than via the Services;
(f) send or store unlawful material (including Malicious Code) by means of the Services;
(g) use the Services or the Information in a way likely to mislead or deceive, cause confusion, or prejudice the distinctiveness or value of the Services, or likely to prejudice the goodwill or reputation of AutoPlay;
(h) attempt to gain unauthorised access to, or disrupt or bypass the security, integrity or performance of, the Services or any data contained in it;
(i) use the Services in a manner reasonably likely to adversely affect other users of the Services; or
(j) use the Services for the purpose of creating a competitive product or service or copying its features or user interface.
(4) The Services and/or any Interface provided under this Agreement may contain portions of program code owned by third party licensors and such licensors will be entitled to enforce this Agreement as an intended third party beneficiary and AutoPlay holds the relevant rights of this Agreement on trust for the benefit of those third party licensors.
2.3 Changes to the Services
(1) Subject to clause 2.3(2), AutoPlay may make changes to the Services from time to time (including any Cloud Provider), provided that the change does not materially decrease the functionality of the Services. These changes may include Updates and other changes that are transparent to the Customer. Once incorporated, these changes will form part of the Services.
(2) AutoPlay may perform updates to the Services from time to time, including updates to the Information as periodically supplied by the Dealership. However, the Customer agrees that AutoPlay is under no obligation to perform, make or develop any specific enhancements to or customisation of the Services, although AutoPlay may offer such enhancements to the Customer during the Subscription Term.
(3) The Customer acknowledges that updates or enhancements may not be compatible with existing customisation, configuration or interfaces, and that AutoPlay is not liable for any cost or expense that the Customer incurs in implementing or correcting the customisation, configuration and interfaces in respect of any such updates or enhancements.
(4) The Customer agrees that it entered into this Agreement without relying on any warranty, representation or comments concerning any future functionality or features of the Services, and that the Customer has not relied on any warranty, representation or comments made by AutoPlay, including any roadmaps, with respect to future functionalities or features of the Services.
2.4 Customer Responsibilities
The Customer must:
(1) provide and configure its own internal facilities (including computers, terminals, software, telecommunications facilities and internet connectivity) which meet the minimum recommended specifications necessary for utilising the Services;
(2) do all things necessary so that AutoPlay is able to provide the Services in accordance with this Agreement;
(3) to the extent that an Interface is offered, ensure that it holds a valid licence or has a right to use any third party software to which the Interface connects;
(4) comply with AutoPlay’s reasonable directions relating to the Services; and
(5) maintain the confidentiality of all login credentials allocated to the Customer and its Users and not disclose them to any third party. If the Customer becomes aware of any unauthorised use of login credentials allocated to the Customer it must notify AutoPlay immediately by email [email protected]
2.5 Users
(1) The Customer is solely responsible for any access to or use of the Services by its Users and must ensure that its Users comply with this Agreement.
(2) The Customer acknowledges that any access to or use of the Services by means of a username assigned to a User (whether or not such use is in fact by that person) is deemed to be access or use by that User.
3. Other Services
3.1 Support Services
AutoPlay will provide the Support Services in accordance with the Order Form.
3.2 Provision of other services
At the request of the Customer, AutoPlay may (but is not obliged to) provide other services that are otherwise outside the scope of this Agreement (including services excluded from Support Services) at a Fee agreed by the parties.
4. Fee
4.1 Payment of Fee
(1) The Customer must pay AutoPlay all Fees in accordance with this Agreement and as may be set out in the Order Form.
(2) The Customer may nominate a third party to pay the Fees on its behalf.
4.2 Invoice
AutoPlay will invoice the Customer for the Fee on or before the date on which the Fee is due. The invoice must be a valid tax invoice. All invoices must be paid within 30 days of the date of the invoice.
4.3 Late payment
If the Customer fails to pay any invoice within 10 days after payment is due, then without limiting AutoPlay’s rights and remedies (including its right to suspend under clause 11 and terminate under clause 12) the Customer must, on demand, pay AutoPlay interest calculated at the rate that is 2% above the Reserve Bank of New Zealand cash rate, calculated and compounded daily, on that amount until the date of payment.
4.4 GST
Capitalised expressions in this clause have the same meaning as those expressions in the Goods and Services Tax Act 1985. Any amount that may be payable under this Agreement is exclusive of any GST. If a party makes a Taxable Supply in connection with this Agreement for a Consideration which represents its Value, then the Recipient of the Taxable Supply must also pay, at the same time and in the same manner as the Value is otherwise payable, the amount of any GST payable in respect of the Taxable Supply. The Recipient’s obligation to pay GST is subject to a valid Tax Invoice being delivered.
5. Intellectual Property
5.1 Reservation of rights
The Services and Documentation are protected by intellectual property laws. AutoPlay retains all rights (including Intellectual Property Rights) in relation to the Services and Documentation. The Customer has no proprietary or other interest in the Services or Documentation and nothing in this Agreement transfers any right, title or interest in the Services or Documentation to the Customer. To the extent necessary to use the Services, AutoPlay grants the Customer a non-exclusive, non-transferable and limited licence for the Customer and its Users to access and use the Services during the Subscription Term in accordance with this Agreement.
5.2 Ownership of modifications and improvements
(1) AutoPlay owns all improvements, adaptations modifications made to the Services and Documentation and all related Intellectual Property Rights, including any suggestions, enhancement requests, recommendations or other feedback provided by the Customer or Users. The Customer assigns any and all the rights that the Customer may have in those improvements and modifications to AutoPlay, and agrees to execute all additional documents requested by AutoPlay to give effect to such assignment.
(2) To the extent that AutoPlay (or its licensees or assignees) develops any updates, enhancements, new versions or new releases of the Services, they will be owned exclusively by AutoPlay.
6. Liability
6.1 Warranties
(1) Each party warrants that it is empowered and authorised to enter into this Agreement.
(2) The Customer warrants that it is engaged in the business of supplying or using Dealership’s vehicle listings and is authorised to access the Information.
(3) AutoPlay warrants that the Services will be performed substantially in accordance with the service description in the Order Form.
6.2 Exclusion of implied warranties
All statutory or implied conditions, guarantees and warranties are excluded by AutoPlay to the maximum extent permitted by applicable law. To the extent permitted by law, where liability under any condition, guarantee or warranty which cannot legally be excluded but can be validly limited, such liability is limited to:
(1) in the case of goods (including the Documentation), the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and
(2) in the case of the services (including the Services and Support Services), supplying the services again; or paying the cost of having the services supplied again.
6.3 No other warranties
(1) To the maximum extent permitted by law and subject to clause 6.2, AutoPlay disclaims and excludes any warranty, representation or undertaking as to the purpose for which the Services, Support Services, and Documentation may be suitable, including any purpose for which the Customer intends to use the Services, Support Services and Documentation.
(2) The Customer warrants to AutoPlay that it has not relied on any representation made by AutoPlay which has not been stated expressly in this Agreement, or upon any descriptions or specifications contained in any document including brochures, marketing and promotional materials produced by AutoPlay.
(3) While AutoPlay has taken due care in developing the Services, to the extent permitted by law, AutoPlay does not warrant, and excludes all representations and warranties that:
(a) the Services are error-free or has no defects;
(b) the Information is accurate, complete or up-to-date;
(c) access to the Services will be uninterrupted or error free;
(d) the Services are free from Malicious Code; or
(e) the Services meet the Customer’s requirements or are compatible with all operating systems and browsers.
6.4 Limitation and exclusion of liability
(1) Despite any other provision of this Agreement and to the maximum extent permitted by applicable law, AutoPlay and its third party licensors are not liable to the Customer under contract, tort or otherwise in any circumstances for any indirect, economic, special or consequential loss or damage, or in any event for any loss of revenue, loss of production, loss of use, loss of profit, loss of anticipated savings or loss of data.
(2) Subject to clause 6.2 and any laws the application of which may not be lawfully excluded, AutoPlay’s aggregate liability to the Customer on any basis and in any circumstances (including liability for negligence) arising out of or in connection with this Agreement, the Support Services, Services, Documentation or their use will not exceed, and is expressly limited to, the amount paid in the preceding three months by the Customer to AutoPlay in respect of the Services which give rise to the claim.
7. IP indemnity
7.1 Indemnity for third party claims
Subject to clauses 7.2 and 7.3, AutoPlay indemnifies the Customer from and against any and all losses suffered or incurred by the Customer arising out of or in connection with any claim, action or proceedings against the Customer by any third person (other than a related body corporate of Customer or a person associated commercially with the Customer) in connection with the Customer’s use of the Services, alleging an infringement by the Services itself of the Intellectual Property Rights of any third party (Third Party Claim), but only to the extent:
(1) that the losses are awarded by the final judgment of a court of competent jurisdiction; or
(2) of any settlement pursuant to this clause 7.
7.2 Procedures
If a Third Party Claim is made then:
(1) the Customer must notify AutoPlay as soon as practicable;
(2) AutoPlay may at its own cost conduct the defence of the Third Party Claim in the name of the Customer or negotiate any settlement of the Third Party Claim; and
(3) AutoPlay may elect at its sole discretion to do one or more of the following:
(a) modify, or arrange for the modification of, the Services (but without adversely affecting its functionality) to render its use non-infringing;
(b) at no cost to the Customer, render the relevant activity non-infringing by procuring the right to exercise the relevant Intellectual Property Rights of the relevant person; or
(c) terminate this Agreement and refund the Customer any Fees paid in advance.
7.3 Limitations
AutoPlay has no liability for any claim of infringement arising from:
(1) the Customer’s non-compliance with the Documentation or any instruction, directions or specifications issued by AutoPlay in relation to the Services;
(2) the combination use of the Services with any system or item not provided by AutoPlay;
(3) the failure of the Customer to use an Update; or
(4) the use of the Services in a way contrary to this Agreement or the intended use of the Services.
7.4 Entire liability
Despite any other provision in this Agreement, this clause 7 states the sole remedy of the Customer and entire liability of AutoPlay in relation to any allegations or claims of infringement of Intellectual Property Rights by any person in relation to the Services or its use.
8. Indemnity by the Customer
The Customer indemnifies AutoPlay from and against any and all losses suffered or incurred by AutoPlay arising out of or in connection with any claim, action or proceedings against AutoPlay by any third person (including a Cloud Provider) alleging that:
(1) the Customer Data or AutoPlay’s hosting of the Customer Data infringes the rights of that third party; and
(2) use by Customer or its Users of the Services in breach of this Agreement or the Documentation infringes or violates the rights of the third party, or causes AutoPlay to be in breach of any agreement with that third party.
9. Confidentiality
9.1 Services and Documentation are confidential
The Customer acknowledges and agrees that the Services and Documentation are confidential to AutoPlay, and the Customer must not, without the prior written approval of AutoPlay, disclose the Services or Documentation (or any copy or part of them) or use them for any purpose other than the purposes of this Agreement or the purposes for which the Services and Documentation were provided or made available to the Customer.
9.2 Exceptions
The Customer is not in breach of clause 9.1 to the extent that:
(1) the Services or Documentation are or become publicly available without breach of this Agreement; or
(2) the Customer is required by law or any court to disclose the Services or Documentation. Before disclosing the Services or Documentation under this clause 9.2(2), the Customer must give AutoPlay sufficient prior written notice (to the extent permitted by law) to enable AutoPlay to seek a protective order or other relief from disclosure.
9.3 Steps to avoid disclosure
The Customer must take all reasonable steps to ensure that its officers, employees, agents and contractors do not make public or disclose the Services or Documentation in breach of this clause 9.
10. Customer Data
10.1 Ownership of Customer Data
(1) The Customer will own and retain all right, title and interest in and to the Customer Data. The Customer may export the Customer Data from the Services by using the data export features of the Services.
(2) AutoPlay will not use or disclose the Customer Data except to the extent required to perform its obligations under this Agreement.
10.2 Responsibility for Customer Data
(1) The Customer will be responsible for the content of all Customer Data and for complying with all applicable laws in respect of the Customer Data.
(2) Without limiting the generality of clause 10.2(1), the Customer must ensure that it has obtained all necessary consents and authorisation, and given all necessary notices, as are required by law for AutoPlay to:
(a) receive, store and process the Customer Data as part of providing the Services; and
(b) collect and store, from time to time, certain data relating to the Customer’s use of the Services for its own internal purposes.
10.3 Security of Customer Data
AutoPlay will implement reasonable security measures to protect any Customer Data that is hosted on the Services from unauthorised access and disclosure.
10.4 Location of Customer Data
(1) The Customer acknowledges that, as part of providing the Services, AutoPlay may store or process Customer Data at a location outside Australia (including systems operated by the Cloud Provider). Upon reasonable notice AutoPlay will provide Customer with a list of all jurisdictions in which the Customer Data may be held.
(2) The Customer acknowledges that the nature of the Services means that AutoPlay may vary the storage location from time to time.
10.5 Deletion of Customer Data
The Customer acknowledges that AutoPlay may delete or destroy all Customer Data stored on the Services at any time after expiry of the Data Extraction Period set out in clause 12.5(1)(c).
11. Availability and suspension
11.1 Dependency on third parties
The Customer acknowledges and agrees that the availability of the Services depends upon permissions and services from third parties (including the Automaker, Cloud Provider and any other third party licensors), which may be varied or terminated from time to time by these third parties. Notwithstanding any other provisions of this Agreement, AutoPlay may, without prior notice to the Customer and without any liability on the part of AutoPlay:
(1) vary, terminate or limited the Services;
(2) suspend the Services; or
(3) vary the terms (including this Agreement) upon which the Services are provided,
if any third party varies or terminates the services provided by it so that AutoPlay is no longer able to provide the Services in accordance with this Agreement. If the Customer does not accept material variation to the Services or to this Agreement made by AutoPlay under this clause 11.1, then the Customer may terminate this Agreement by notice to AutoPlay within 60 days of such variation. If this Agreement is terminated under this clause 11.1 (whether by AutoPlay or the Customer), AutoPlay will refund to the Customer the amount of the Fees paid in advance in respect of the remaining portion of the Subscription Term.
11.2 Suspension
(1) AutoPlay may suspend the access to, and use of, the Services by Customer and its Users in the following circumstances:
(a) for any non-payment of Fees by the Customer;
(b) for the duration of any Force Majeure Event (as defined in clause 13.3);
(c) for any material breach of this Agreement by the Customer;
(d) if AutoPlay reasonably considers that suspension is necessary to protect the Services, the Customer Data, or any other computer systems and data (including in response to an external attack); or
(e) if the Customer is no longer permitted to access the Information.
(2) AutoPlay may, in its sole discretion, restrict, limit or alter any compromised login credentials (including any which AutoPlay suspects may have been compromised) so as to completely or partially disable access to the Services via the compromised login credentials.
(3) AutoPlay will give the Customer as much practicable prior notice of the suspension as possible, and will promptly end the suspension after the relevant circumstances have abated.
12. Term and termination
12.1 Expiry of Subscription Term
This Agreement commences on the Subscription Date and continues for the Subscription Term, unless terminated earlier.
12.2 Termination by the Customer
The Customer may terminate this Agreement at any time on 30 days’ written notice to AutoPlay provided, however, that:
(1) it is not in breach of this Agreement; and
(2) where the Customer wishes to terminate this Agreement prior to the end of a Subscription Term, it must pay a termination fee equal to the Fees that would have been payable in relation to the remainder of the Subscription Term.
12.3 Termination for cause
(1) Either party may terminate this Agreement immediately by notice in writing if:
(a) the other party is the subject of an Insolvency Event; or
(b) the other party fails to comply with any material provision of this Agreement and fails to remedy that failure within 20 Business Days after notice requiring it to be remedied.
(2) If this Agreement is terminated under this clause 12.2 by the Customer, AutoPlay will refund to the Customer the amount of the Fees paid in advance.
12.4 Termination for cause by AutoPlay
Without limiting other provisions, AutoPlay may terminate this Agreement immediately if the Customer:
(1) fails to pay any invoice within 10 Business Days after payment is due and such amount remains unpaid;
(2) assigns or otherwise disposes of any interest or right it has under this Agreement without the prior written consent of AutoPlay; or
(3) is no longer authorised to access the Information.
12.5 Effect of termination
(1) Upon termination of this Agreement for any reason:
(a) unless expressly set out otherwise, AutoPlay is not required to provide the Customer any refund of any paid Fees;
(b) all rights and licences granted under this Agreement terminate immediately, and the Customer must immediately cease to use the Services and Documentation, and return to AutoPlay or destroy all copies of the Documentation; and
(c) subject to the Customer paying all outstanding Fees, AutoPlay will continue to provide the Customer with access to the Services for a period of 10 Business Days (Data Extraction Period) for the sole purpose of allowing the Customer to extract the Customer Data from the Services. AutoPlay may disable other functionalities of the Services during the Data Extraction Period.
(2) Clauses 5, 6, 8, 9, 10, 12.5 and 13 survive termination of this Agreement.
13. General
13.1 No assignment
The Customer must not transfer, sub-license or assign any benefit or obligation under this Agreement to any third party without the prior written consent of AutoPlay. AutoPlay may, at any time, assign or sub-contract all or part of its rights and obligations under this Agreement.
13.2 Subcontract
AutoPlay may subcontract the performance of any part of its obligations to any person. AutoPlay will remain responsible to the Customer for the performance of any subcontracted obligations.
13.3 Force majeure
AutoPlay will not be liable for any or failure to perform or delay in performing any obligations under this Agreement to the extent caused by any cause or condition beyond its reasonable control, including fire, flood, act of God, war, insurrection, sabotage, acts of terrorism, industrial disturbance, failure of electrical or telecommunications networks, acts of vandalism and changes in legislation or regulations of any government (Force Majeure Event). The obligations of AutoPlay are suspended to the extent to which they are affected by the relevant Force Majeure Event as long as the Force Majeure Event continues.
13.4 Severability
If any provision in this Agreement is unenforceable, illegal or void or makes this Agreement or any part of it unenforceable, illegal or void, then that provision is severed and the rest of this Agreement remains in force.
13.5 Further assurance
Each party must promptly at its own cost do all things (including executing and if necessary delivering all documents) necessary or desirable to give full effect to this Agreement.
13.6 Entire understanding
This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement and supersedes any prior agreement or understanding on anything connected with that subject matter.
13.7 Variation
An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.
13.8 Waiver
A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right. A waiver is not effective unless it is in writing. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
13.9 Costs and outlays
Each party must pay its own costs and outlays connected with the negotiation, preparation and execution of this Agreement.
13.10 Notices
(1) A notice or other communication connected with this Agreement (Notice) has no legal effect unless it is in writing.
(2) In addition to any other method of service provided by law, the Notice may be:
(a) sent by prepaid priority post to the address of the addressee;
(b) sent by email to the addressee; or
(c) delivered at the address of the addressee.
(3) The notice details of each party are set out in the Order Form, as varied by each party by notice to the other.
(4) If the Notice is sent or delivered in a manner provided by clause 13.10(2), it must be treated as given to and received by the party to which it is addressed:
(a) if sent by post, on the 4th Business Day (at the address to which it is posted) after posting;
(b) if sent by email before 5.00pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt; or
(c) if otherwise delivered before 5.00pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery.
(5) Despite clause 13.10(4)(b):
(a) an email message is not treated as given or received if within 2 hours after the time sent the sender receives an automated message that the email has not been delivered; and
(b) an email message is not treated as given or received if it is not received in full and in legible form and the addressee notifies the sender of that fact within 2 hours after the transmission ends or by 12 noon on the Business Day on which it would otherwise be treated as given and received, whichever is later.
(6) A Notice sent or delivered in a manner provided by clause 13.10(2) must be treated as validly given to and received by the party to which it is addressed even if:
(a) the addressee has been liquidated or deregistered or is absent from the place at which the Notice is delivered or to which it is sent; or
(b) the Notice is returned unclaimed.
13.11 Governing law and jurisdiction
The law of the New Zealand governs this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
13.12 Counterparts
This Agreement may be executed in any number of counterparts. Each counterpart is an original but the counterparts together are one and the same agreement. This Agreement is binding on the parties on the exchange of executed counterparts. A copy of an original executed counterpart sent by facsimile machine or by email:
(1) must be treated as an original counterpart;
(2) is sufficient evidence of the execution of the original; and
(3) may be produced in evidence for all purposes in place of the original.
