Master Service Agreement - General Terms

1.1 Provision

Subject to your payment of the Fees and your compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable right during the Term to access and use the Service for your internal business purposes.

1.2 Authorised Users

You may permit your employees, contractors and agents (Authorised Users) to access the Service. You are responsible for the acts and omissions of each Authorised User as if they were your own.

1.3 Availability

We will use reasonable endeavours to make the Service available 24 hours a day, 7 days a week, except for planned maintenance carried out at times intended to minimise disruption, and unscheduled maintenance during normal business hours where reasonably necessary.

1.4 Restrictions

You must not, and must not permit any person to: (a) reverse engineer, decompile or disassemble the Service; (b) copy, modify, adapt, translate or create derivative works of the Service; (c) sell, resell, licence, sublicence, distribute, rent or lease the Service; (d) use the Service to build a competitive product or service; (e) introduce any virus or malicious code into the Service; or (f) use the Service in any way that breaches any applicable law.

2.1 Right to amend

We may amend these Terms from time to time by publishing the amended Terms on our website. We will notify you of any material amendment by email to your nominated notice address and by posting a notice on our website at least thirty (30) days before the amended Terms take effect.

2.2 Detrimental changes and exit right

If, acting reasonably, you consider that an amendment is materially detrimental to you, you may terminate this Agreement by giving us written notice within ten (10) days after we issue the notice of change. Termination takes effect on the date immediately before the amended Terms would otherwise have applied to you, and we will refund any Fees you have paid in advance for the period after termination.

2.3 Continued use

If you continue to access or use the Service after the effective date of an amendment, you are deemed to have accepted the amended Terms.

2.4 Non-material changes

Non-material changes (including typographical corrections, clarifications and changes that do not adversely affect your rights or our obligations) take effect on the date they are published, without the requirement for advance notice.

3.1 Fees

You must pay the subscription fees and any one-time setup, implementation, or onboarding fees specified in the Service Supply Agreement (Fees), exclusive of GST.

3.2 Invoicing

We will invoice you for recurring subscription Fees monthly in advance. One-time setup or implementation fees will be invoiced on or after the Start Date. You authorise us to automatically debit all Fees from your nominated bank account via our third-party payment processor (e.g., Stripe) on or about the invoice date. Where automated debiting is not configured, all invoices must be paid within seven (7) days of the invoice date by electronic cleared funds to our nominated account.

3.3 Late payment

If you do not pay an invoice by its due date, we may (a) charge interest on the overdue amount at the rate of 1.5% per month (equivalent to 18% per annum), calculated daily; and (b) suspend your access to the Service until all overdue amounts are paid in full. Suspension does not relieve you of your obligation to pay Fees that continue to accrue during the suspension.

3.4 Fee changes

We may increase the Fees at any time by giving you at least thirty (30) days' written notice. Clause 2.2 (detrimental change exit right) applies to any Fee increase.

3.5 Taxes

All Fees are exclusive of GST, VAT, sales tax, use tax, harmonised sales tax, provincial sales tax, or any other applicable taxes, duties and charges (Taxes), which (where applicable) will be added to invoices and paid by you. If you are required by law to withhold or deduct any Taxes from a payment to us, you must gross up the payment so that we receive the full amount we would have received had no withholding or deduction been made. Each party is responsible for taxes on its own income. Where you are located outside New Zealand and a reverse-charge or self-assessment mechanism applies, you are responsible for accounting for the relevant Taxes in your own jurisdiction.

4.1 Term

This Agreement begins on the Start Date set out in the Service Supply Agreement and continues from the Billing Date on a rolling month-to-month basis until terminated under this clause 4 (the Term).

4.2 Termination for convenience

Either party may terminate this Agreement at any time by giving the other party thirty (30) days' written notice. Termination under this clause takes effect at the end of the monthly billing cycle in which the notice period expires.

4.3 Termination for cause

Either party may terminate this Agreement immediately by written notice if the other party: (a) commits a material breach of this Agreement that is not remediable, or that is remediable but is not remedied within fourteen (14) days of written notice requiring it to be remedied; or (b) becomes insolvent, has a receiver, liquidator or statutory manager appointed, ceases to carry on business, or becomes unable to pay its debts as they fall due.

4.4 Consequences of termination

On termination of this Agreement: (a) your right to access and use the Service ends immediately; (b) you must pay all Fees that have accrued up to the effective date of termination; (c) we will, on your written request received within thirty (30) days after termination, make a copy of your Customer Data available for download in a commonly used machine-readable format; and (d) after that thirty-day period we may delete your Customer Data, except where retention is required by law. (e) you will not be entitled to a refund of any Fees already paid to us, including any one-time setup, onboarding, or implementation fees, unless expressly required by applicable law.

4.5 Survival

Clauses 5 (Customer Data), 6 (Intellectual Property), 7 (Confidentiality), 8 (Liability), 9 (Indemnities), 10 (General), 11 (Data Processing) and any other clause that by its nature is intended to survive termination, will survive termination of this Agreement.

5.1 Definition

Customer Data means all data, content, information, files and materials submitted to or generated by you or your Authorised Users in the course of using the Service.

5.2 Ownership

As between the parties, you retain all right, title and interest (including all intellectual property rights) in and to the Customer Data. Nothing in these Terms transfers ownership of the Customer Data to us.

5.3 Licence to us

You grant us a non-exclusive, worldwide, royalty-free licence to host, copy, transmit, display, process and otherwise use the Customer Data to the extent reasonably necessary to provide the Service and to comply with our obligations under this Agreement.

5.4 Customer responsibilities

You are solely responsible for the accuracy, quality, integrity and legality of the Customer Data and for the means by which you acquired the Customer Data. You warrant that you have all necessary rights, consents and authorisations required for us to handle the Customer Data as contemplated by this Agreement.

5.5 Backups

We will take reasonable steps to back up Customer Data, but you remain responsible for maintaining your own backups of any Customer Data that is critical to your business.

6.1 Service IP

We retain all right, title and interest (including all intellectual property rights) in and to the Service, the underlying software, all related documentation, and all improvements, modifications, derivative works and feedback relating to any of them. No rights are granted to you other than those expressly set out in these Terms.

6.2 Feedback

If you provide us with any suggestions, comments, ideas or other feedback relating to the Service, you assign to us all right, title and interest (including all intellectual property rights) in and to that feedback, and we may use it for any purpose without restriction or compensation to you.

6.3 Analytical Data

You acknowledge and agree that:

1. we may use the Customer Data to generate aggregated and anonymised data sets, statistics, benchmarks, insights, models and analytics (together, Analytical Data), provided that the Analytical Data does not identify you, your Authorised Users, or any individual;
2. you grant us a perpetual, irrevocable, worldwide, royalty-free and fully sublicensable licence to use the Customer Data to create the Analytical Data;
3. we own all right, title and interest (including all intellectual property rights) in and to the Analytical Data; and
4. we may use, supply, share, license, sell, publish or otherwise commercialise the Analytical Data to or with any third party for any purpose, without restriction or compensation to you.

This clause 6.3 survives termination of this Agreement.

7.1 Obligation

Each party (the Recipient) must keep confidential, and not use except for the purposes of this Agreement, all confidential information of the other party (the Discloser) that is disclosed to it in connection with this Agreement.

7.2 Exceptions

The obligations in clause 7.1 do not apply to information that: (a) is or becomes publicly available other than through breach of this Agreement; (b) was lawfully known to the Recipient before disclosure by the Discloser; (c) is lawfully obtained by the Recipient from a third party without restriction; or (d) is required to be disclosed by law, by a court of competent jurisdiction, or by the rules of any stock exchange.

7.3 Permitted disclosure

The Recipient may disclose confidential information of the Discloser to its employees, contractors, professional advisers and (in our case) sub-processors, in each case on a need-to-know basis and subject to written obligations of confidentiality at least as protective as those in this clause 7.

8.1 Mutual warranties

Each party warrants to the other that it has full power and authority to enter into and perform this Agreement, and that doing so will not breach any other agreement or obligation to which it is subject.

8.2 Service warranty

We warrant that the Service will be provided with reasonable care and skill. To the maximum extent permitted by law, this is the only warranty we give in respect of the Service. All other warranties, conditions, representations and terms (whether express, implied, statutory or otherwise) are excluded.

8.3 Disclaimer

Except as expressly stated in clause 8.2, the Service is provided "as is" and "as available". We do not warrant that the Service will be uninterrupted, error-free, secure against all threats, or that it will meet your specific requirements.

8.4 Cap on liability

To the maximum extent permitted by law, the total aggregate liability of each party to the other under or in connection with this Agreement (whether in contract, tort (including negligence), breach of statutory duty or otherwise) is limited, in respect of all events occurring in any twelve-month period, to the total Fees paid by the Customer to the Supplier in the twelve months immediately preceding the first event giving rise to liability.

8.5 Excluded losses

Neither party is liable to the other for any loss of profit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of anticipated savings, loss or corruption of data, or any indirect, consequential, special, exemplary or punitive loss or damage, however arising.

8.6 Carve-outs

Nothing in this clause 8 limits a party's liability for: (a) the Customer's obligation to pay Fees; (b) breach of clause 6 (Intellectual Property); (c) breach of clause 7 (Confidentiality); (d) the indemnities at clause 9; or (e) any liability that cannot be limited or excluded by law.

8.7 Australian Consumer Law

If the Australian Consumer Law (ACL) applies to the supply of the Service and you are a "consumer" for the purposes of the ACL, nothing in this Agreement excludes, restricts or modifies any guarantee, right or remedy under the ACL that cannot lawfully be excluded, restricted or modified. To the extent permitted by section 64A of the ACL, our liability for a failure to comply with a consumer guarantee in relation to services is limited, at our option, to supplying the services again or paying the cost of having the services supplied again.

8.8 Product selector output

The Service is a guidance tool only. Any product recommendations or results generated by the Service are based solely on the information provided by the end-user at the time of use and do not constitute professional advice. SelectPro does not warrant the accuracy, completeness or suitability of any recommendation for any particular end-user's application. The Customer is responsible for ensuring that end-users of any selector deployed under this Agreement are informed that results should be verified with the relevant seller or manufacturer prior to purchase. SelectPro accepts no liability for any loss or damage arising from an end-user's reliance on selector output.

9.1 Customer indemnity

You indemnify us against all losses, damages, costs and expenses (including reasonable legal costs) suffered or incurred by us arising out of or in connection with: (a) your or any Authorised User's breach of these Terms; (b) your or any Authorised User's negligent or wilful acts or omissions; or (c) any claim that the Customer Data, or our use of the Customer Data as permitted by this Agreement, infringes the intellectual property rights or other rights of any third party.

9.2 Supplier indemnity

We indemnify you against all losses, damages, costs and expenses (including reasonable legal costs) suffered or incurred by you arising out of any third-party claim that the Service, when used in accordance with these Terms, infringes that third party's intellectual property rights in New Zealand, Australia, Canada or the United States. This indemnity does not apply to any claim arising from (a) modification of the Service by anyone other than us, (b) use of the Service in combination with any product or data not supplied by us, or (c) use of the Service other than in accordance with these Terms.

10.1 Governing law and jurisdiction

This Agreement is governed by, and is to be construed in accordance with, the laws of New Zealand. The parties submit to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute, claim or matter arising out of or in connection with this Agreement.

10.2 Notices

Any notice given under this Agreement must be in writing and sent by email to contact@selectpro.app (in our case) or to the email address recorded in the Service Supply Agreement (in your case). A notice is deemed received when the sender's email system records that the message has been successfully transmitted.

10.3 Trade and contracting out

Each party warrants that it is acquiring, or supplying, the Service in trade and for the purposes of a business, and not for personal, domestic or household use. The parties agree that:

1. the Consumer Guarantees Act 1993 (New Zealand) does not apply to the supply of the Service or to anything done under or in connection with this Agreement;
2. sections 9, 12A and 13 of the Fair Trading Act 1986 (New Zealand) and amendments do not apply to this Agreement;
3. to the maximum extent permitted by law, any consumer protection legislation in your jurisdiction that may be excluded by agreement between business parties is excluded (subject always to clause 8.7); and
4. it is fair and reasonable that the parties are bound by this clause 10.3.

10.4 Force majeure

Neither party is liable for any failure or delay in performing its obligations (other than payment obligations) to the extent that the failure or delay is caused by an event beyond that party's reasonable control, including natural disaster, fire, flood, pandemic, war, civil unrest, strike, government action, or failure of telecommunications or internet infrastructure.

10.5 Assignment

You may not assign or transfer any of your rights or obligations under this Agreement without our prior written consent. We may assign or transfer our rights and obligations under this Agreement to any third party on written notice to you.

10.6 Subcontracting

We may engage subcontractors (including cloud infrastructure providers) to perform any part of our obligations, provided we remain responsible for their acts and omissions.

10.7 Entire agreement

This Agreement (comprising these Terms, the Service Supply Agreement and the Privacy Policy) constitutes the entire agreement between the parties in relation to its subject matter, and supersedes all prior agreements, representations and understandings.

10.8 Severability

If any provision of this Agreement is held to be invalid, unlawful or unenforceable, that provision is to be severed and the remaining provisions continue in full force and effect.

10.9 Waiver

No waiver of any right under this Agreement is effective unless given in writing. A failure or delay by either party in exercising a right does not waive that right.

10.10 No partnership

Nothing in this Agreement creates a partnership, joint venture, agency or employment relationship between the parties.

10.11 Counterparts

Any associated Service Supply Agreement may be executed in counterparts, each of which is an original, and all of which together constitute one document.

10.12 Language

The parties have expressly requested and agreed that this Agreement and all related documents be drawn up in the English language. Les parties ont expressément demandé et convenu que la présente convention ainsi que tous les documents qui s'y rattachent soient rédigés en langue anglaise.

10.13 Export controls and sanctions

Each party will comply with all applicable export control and economic sanctions laws, including those of New Zealand, Australia, Canada and the United States. You represent that neither you nor any Authorised User is located in, or is a national or resident of, a country or territory that is subject to comprehensive sanctions, or is a person listed on any government sanctions or restricted-party list, and you must not use or permit the Service to be used in breach of any such law.

10.14 Third-party rights

Except as expressly provided in this Agreement, no person other than the parties has any right to enforce any term of this Agreement.

11.1 Application and roles

This clause 11 applies to the extent that Customer Data includes personal information (or personal data, personally identifiable information, or an equivalent term) that is protected by privacy laws applicable to you, including the New Zealand Privacy Act 2020, the Australian Privacy Act 1988, Canada's Personal Information Protection and Electronic Documents Act and applicable provincial laws, and applicable United States state privacy laws (together, Privacy Laws). For that personal information, you are the controller, business, or organisation responsible for it, and we process it as your processor, service provider, or agent, as those terms are used in the applicable Privacy Laws.

11.2 Our obligations

In respect of personal information within Customer Data, we will: (a) process it only on your documented instructions, which include this Agreement and your use of the Service, and only for the purpose of providing the Service and complying with our obligations under this Agreement; (b) not sell it, share it for cross-context behavioural advertising, or retain, use or disclose it for any purpose other than the purposes permitted under this Agreement, or outside the direct business relationship between the parties; (c) not combine it with personal information we receive from other sources, except as permitted by Privacy Laws to provide the Service; (d) ensure that our personnel who have access to it are bound by obligations of confidentiality; (e) implement and maintain appropriate technical and organisational measures to protect it against unauthorised access, loss, misuse, modification or disclosure; (f) provide reasonable assistance to enable you to respond to requests from individuals exercising their rights under Privacy Laws, and promptly refer any such request we receive directly to you; (g) notify you if we determine that we can no longer meet our obligations under Privacy Laws; and (h) on termination, return or delete it in accordance with clause 4.4. Nothing in this clause 11.2 prevents us from creating and using Analytical Data in accordance with clause 6.3, provided the Analytical Data is de-identified and we do not attempt to re-identify it.

11.3 Sub-processors

You authorise us to engage third-party sub-processors (including cloud hosting, infrastructure, analytics, error-monitoring, email delivery and payment providers) to process personal information in order to provide the Service, provided that we impose data protection obligations on each sub-processor that are no less protective than those in this clause 11, and we remain responsible for their acts and omissions. We will make a list of our current sub-processors available on request and will notify you of any material change by email at least fourteen (14) days before the change takes effect, during which time you may object on reasonable grounds.

11.4 International transfers

You acknowledge that we are located in New Zealand and that we and our sub-processors may store and process personal information in New Zealand, Australia, the United States, the European Union, and other countries in which our sub-processors operate. You are responsible for ensuring that any notices or consents required under Privacy Laws in relation to such transfers have been given or obtained, and we will provide reasonable assistance in connection with any assessment that Privacy Laws require you to carry out in relation to those transfers.

11.5 Security incidents

If we become aware of any actual unauthorised access to, or loss, disclosure or alteration of, personal information within Customer Data that is in our or our sub-processors' possession or control (a Security Incident), we will notify you without undue delay and in any event within seventy-two (72) hours after confirming the Security Incident, and will provide you with information reasonably required to enable you to meet any breach notification obligations under Privacy Laws. We will take reasonable steps to contain and remediate the Security Incident and will cooperate with you in good faith. Our notification of a Security Incident is not an admission of fault or liability.

11.6 Audit and compliance

On your reasonable written request, no more than once in any twelve-month period (or following a Security Incident), we will provide you with information reasonably necessary to demonstrate our compliance with this clause 11, which may take the form of a written response to a reasonable security questionnaire or a summary of any third-party audit reports we hold. You may take reasonable and appropriate steps to stop and remediate any unauthorised use of personal information by us.

11.7 Customer obligations

You are responsible for: (a) ensuring that you have provided all notices and obtained all consents and authorisations required under Privacy Laws to submit personal information to the Service and for us to process it as contemplated by this Agreement; (b) the lawfulness of your instructions to us; and (c) configuring and using the Service in a manner that complies with Privacy Laws, including by not submitting personal information that is not necessary for your use of the Service. If we reasonably consider that an instruction from you would breach Privacy Laws, we will inform you and may suspend the relevant processing until the matter is resolved.