1. Application of terms
1.1 These Terms apply to your use of the Services. By accessing and using the Website and the Services:
a. you agree to these Terms; and
b. where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorized to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
1.2 if you do not agree to these Terms, you are not authorized to access and use the Services, and you must immediately stop doing so.
1.3 where you have signed a separate written agreement with Numerik, if there is any inconsistency between these Terms and that separate agreement, the separate agreement prevails.
2. Changes
2.1 Numerik may change these Terms at any time by updating them on the Website. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Services, you agree to be bound by the changed Terms. If you do not agree to any change, you must immediately cease your access to and use of the Services.
2.2 Numerik may change, suspend, discontinue, or restrict access to, the Services without notice or liability.
2.3 These Terms were last updated on 1/6/2022.
3. Interpretation
3.1 Definitions: In these Terms, the following terms have the stated meaning:
3.2 Interpretation: In these Terms:
a. clause and other headings are for ease of reference only and do not affect the interpretation of these Terms;
b. words in the singular include the plural and vice versa; and
c. a reference to:
i a party to these Terms includes that party’s permitted assigns;
ii personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include Numerik. Where Numerik has entered into a GDPR Data Processing Agreement with you, a reference to our personnel includes a “sub-processor” as defined in that agreement;
iii a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
iv including and similar words do not imply any limit; and
v a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
4. Services
4.1 General: Subject to your compliance with these Terms, including the payment of all Fees, Numerik must:
a. provide access to the SaaS Service (subject to the completion of any onboarding Related Services that we agree to provide to you); and
b. use reasonable efforts to provide the Services:
i in accordance with these Terms and New Zealand law;
ii exercising reasonable care, skill and diligence; and
iii using suitably skilled, experienced and qualified personnel.
4.2 Non-exclusive: Numerik’s provision of the Services to you is non-exclusive. Nothing in these Terms prevents Numerik from providing the Services to any other person.
4.3 Availability:
a. Subject to clause 4.3b, Numerik will use reasonable efforts to ensure the SaaS Service is available on a 24/7 basis. However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. Numerik will use reasonable efforts to publish on the Website advance details of any unavailability.
b. Through the use of web services and APIs, the SaaS Service interoperates with a range of third party service features. Numerik does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, Numerik may cease to make available that feature to you. To avoid doubt, if Numerik exercises its right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.
4.4 Related Services and new features:
a. Where separately agreed in writing, Numerik will provide the onboarding Related Services to you to enable you to access and use the SaaS Service.
b. At your reasonable request and subject to you paying any additional Fee required by Numerik, Numerik will upload Data to the SaaS Service on your behalf. Any Data to be uploaded must be supplied, and be cleansed, formatted and delivered, to Numerik in accordance with Numerik’s reasonable directions. Without limiting clause 11.2a, Numerik is not responsible or liable for any Data loss prior to it being uploaded into the SaaS Service or for any failure to upload Data to the extent the Data does not comply with Numerik’s directions.
c. In addition, Numerik may, from time to time, make available additional services to supplement the SaaS Service. At your request and subject to you paying the applicable Fees, Numerik may agree to provide to you an additional Related Service on these Terms.
d. From time to time, Numerik may make available new features or functionality as p art of the SaaS Service. Those new features and functionality may be subject to additional Fees and/or additional conditions. Your access to any new feature or functionality will be subject to you agreeing to pay any additional Fee and/or to comply with any additional condition.`
5. Your Obligations
5.1 General use: You, your Permitted Users, and your personnel must:
a. Use the Services in accordance with these Terms solely for:
i your own internal business purposes; and
ii lawful purposes (including complying with the New Zealand Unsolicited Electronic Messages Act 2007 or any equivalent applicable legislation outside of New Zealand); and
b. not resell or make available the Services to any third party, or otherwise commercially exploit the Services.
5.2 Access conditions: When accessing the SaaS Service, you, your Permitted Users, and your personnel must:
a. not impersonate another person or misrepresent authorization to act on behalf of others or Numerik;
b. correctly identify the sender of all electronic transmissions;
c. not attempt to undermine the security or integrity of the Underlying Systems;
d. not use, or misuse, the SaaS Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service, including not introducing (whether intentionally or not) any Malicious Code;
e. not attempt to view, access or copy any material or data other than:
i that which you are authorized to access; and
ii to the extent necessary for your and your Permitted Users to use the SaaS Service in accordance with these Terms;
f. not attempt to view, access or copy any new feature or functionality of the SaaS Service to which additional Fees or additional conditions apply without paying those Fees or agreeing to those conditions;
g. neither use the SaaS Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and
h. comply with any terms of use on the Website, as updated from time to time by Numerik.
5.3 Permitted User:
a. Without limiting clause 5.2, no individual other than a Permitted User may access or use the SaaS Service.
b. You may authorize any member of your personnel (or, with Numerik’s prior written consent, an end-customer) to be a Permitted User, in which case you will:
i where Numerik manages the Permitted User setup for you, provide Numerik with the Permitted User’s name and other information that Numerik reasonably requires in relation to the Permitted User; and
ii where you manage your own Permitted User setup, setup that Permitted User through the self-service functionality in the SaaS Service.
c. Without limiting clause 5.3d, you must procure each Permitted User’s compliance with clauses 5.1 and 5.2 and any other reasonable condition notified by Numerik to you.
d. A breach of any provision of these Terms by your personnel and/or a Permitted User is deemed to be a breach of these Terms by you.
5.4 Authorizations: You are responsible for procuring all licences, authorizations and consents required for you and your Permitted Users to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.
6. Data
6.1 Responsibility for Data: Without limiting clause 5.2g, you (and not Numerik) are responsible and liable for:
a. ensuring all Data (including any target, financial or other analysis forming part of the Data) is accurate, up-to-date, correct and not misleading, including where Numerik has uploaded that Data on your behalf; and
b. any decision you or a third party (including an end-customer) makes relating to or based on the Data, e.g. a financial decision or otherwise.
6.2 Numerik access to Data:
a. You acknowledge that:
i Numerik may require access to the Data to exercise its rights and perform its obligations under these Terms; and
ii to the extent that this is necessary but subject to clause 9 and any GDPR Data Processing Agreement, Numerik may authorise a member or members of its personnel to access the Data for this purpose.
b. You must arrange all consents and approvals that are necessary for Numerik to access the Data as described in clause 6.2a.
6.3 Analytical Data: You acknowledge and agree that:
a. Numerik may:
i use Data and information about your (and your end-customers) use of the Services to:
▲ provide to you comparative and other statistical information on your growth, including compared to other Numerik customers; and
▲ generate anonymised and aggregated statistical and analytical data (Analytical Data);
ii use Analytical Data for Numerik’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
iii make publicly available that Analytical Data to third parties, including through Numerik created indexes showing and customer growth on an anonymized basis;
b. Numerik’s rights under clause 6.3a above will survive termination or expiry of these Terms; and
c. title to, and all Intellectual Property Rights in, Analytical Data is and remains Numerik’s property.
6.4 Personal Information:
a. You acknowledge and agree that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services:
i Numerik is acting as an agent, service provider, and/or data processor for the purposes of Data Protection Laws; and
ii you must obtain all necessary consents from the relevant individual to enable Numerik to collect, use, hold and process that information in accordance with these Terms.
b. You must not use the Services to process (including to transmit or store) any Personal Information that is regulated by EU/UK Data Protection Laws unless and until you have agreed in writing with us a separate GDPR Data Processing Agreement.
6.5 Backups of Data: While Numerik will take standard industry measures to back up all Data stored using the Services, you agree to keep a complete and separate copy of all Data uploaded by you (or by Numerik on your behalf) onto the SaaS Service.
6.6 International storage of Data: You agree that Numerik may store Data (including any Personal Information) in secure servers in Australia and may access that Data (including any Personal Information) in Australia and New Zealand from time to time.
6.7 Indemnity: You indemnify Numerik against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by Numerik’s solicitors) and loss of any kind arising from:
a. the introduction (whether intentional or not) by you, your Permitted Users, or your personnel of any Malicious Code into the Underlying System; and
b. any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.
7. Fees
7.1 Fees: You must pay to Numerik the Fees.
7.2 Invoicing and payment:
a. Numerik will provide you with valid GST tax invoices on the dates set out in the Payment Terms, or if there are none, monthly in arrears for the Fees due in the previous month.
b. The Fees exclude GST, which you must pay on taxable supplies under these Terms.
c. You must pay the Fees:
i electronically in cleared funds without any set off or deduction; and
ii on or before the due date set out on the Website or otherwise agreed in writing by us in advance. If payment of the Fees is not made by the due date, we may immediately suspend your access to and use of the Services.
7.3 Overdue amounts: Numerik may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by Numerik’s primary trading bank as at the due date (or, if Numerik’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
7.4 Increases:
a. Numerik may increase the Fees by giving at least 30 days’ notice. To avoid doubt, additional Fees may be payable if you want to access features or functionality which are in addition to the core functionality covered by the Fees.
b. If you do not wish to pay the increased Fees, you may terminate these Terms on no less than 30 days’ notice, provided the notice is received by Numerik before the effective date of the Fee increase. If you do not terminate these Terms in accordance with this clause, you are deemed to have accepted the increased Fees.
8. Intellectual Property
8.1 Ownership:
a. Subject to clause 8.1b, title to, and all Intellectual Property Rights in, the Services, the Website, and all Underlying Systems is and remains the property of Numerik (and its licencors). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
b. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant Numerik a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with these Terms.
8.2 Know-how: To the extent not owned by Numerik, you grant Numerik a royalty-free, transferable, irrevocable and perpetual licence to use for Numerik’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by Numerik in the provision of the Services.
8.3 Feedback: If you provide Numerik with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
a. all intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by Numerik; and
b. Numerik may use or disclose the feedback for any purpose.
8.4 Third party sites and material: You acknowledge that the SaaS Service may link to third party websites or feeds that are connected or relevant to the SaaS Service. Any link from the SaaS Service does not imply any Numerik endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, Numerik excludes all responsibility or liability for those websites or feeds.
9 Confidentiality
9.1 Security: Each party must, unless it has the prior written consent of the other party:
a. keep confidential at all times the Confidential Information of the other party;
b. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorized access or use; and
c. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 9.1a and 9.1b.
9.2 Permitted disclosure: The obligation of confidentiality in clause 9.1 does not apply to any disclosure or use of Confidential Information:
a. for the purpose of performing these Terms or exercising a party’s rights under these Terms;
b. required by law (including under the rules of any stock exchange);
c. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
d. which was rightfully received by a party to these Terms from a third party without restriction and without breach of any obligation of confidentiality; or
e. by Numerik if required as part of a bonafide sale of its business (assets or shares, whether in whole or in part)to a third party, provided that Numerik enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 9.
10. Warranties
10.1 Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under these Terms which, when signed, will constitute binding obligations on the warranting party.
10.2 No implied warranties: To the maximum extent permitted by law:
a. Numerik’s warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the New Zealand Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to NZD500.00; and
b. Numerik makes no representation concerning the quality of the Services and does not promise that the Services will:
i meet your requirements or be suitable for a particular purpose, including that the use of the Services will fulfil or meet any statutory role or responsibility of yours; or
ii be secure, free of viruses or other harmful code, uninterrupted or error free.
10.3 Consumer Guarantees Act: You agree and represent that you are acquiring the Services, and entering these Terms, for the purposes of trade. The parties agree that:
a. to the maximum extent permissible by law, the New Zealand Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Services or these Terms; and
b. it is fair and reasonable that the parties are bound by this clause 10.3.
10.4 Limitation of remedies: Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, the liability of Numerik for any breach of that condition or warranty is limited, at Numerik’s option, to:
a. supplying the Services again; and/or
b. paying the costs of having the Services supplied again.
11. Liability
11.1 Maximum liability: The maximum aggregate liability of Numerik under or in connection with these Terms or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by you under these Terms in the previous Year (which in the first Year is deemed to be the total Fees paid by you from the Start Date to the date of the first event giving rise to liability). The cap in this clause 11.1 includes the cap set out in clause 10.2a.
11.2 Unrecoverable loss: Neither party is liable to the other under or in connection with these Terms or the Services for any:
a. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
b. consequential, indirect, incidental or special damage or loss of any kind.
11.3 Unlimited liability:
a. Clauses11.1 and 11.2 do not apply to limit Numerik’s liability under or in connection with these Terms for:
i personal injury or death;
ii fraud or wilful misconduct; or
iii a breach of clause 9.
b. Clause11.2 does not apply to limit your liability:
i to pay the Fees;
ii under the indemnity in clause 6.7; or
iii under or in connection with these Terms for those matters stated in clauses 11.3ai to 11.3aiii.
11.4 No liability for other’s failure: Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
11.5 Mitigation: Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms.
12. Term, Termination and Suspension
12.1 Duration: Unless terminated under this clause 12, these Terms continue from the date you agreed to them for successive 12-month periods from that date or the anniversary of that date, unless either party gives 60 days’ notice that these Terms will terminate on the expiry of the then-current term.
12.2 No fault termination: Numerik may terminate these Terms on at least 3 months prior notice to you.
12.3 Other termination rights:
a. Either party may, by notice to the other party, immediately terminate these Terms if the other party:
i breaches any material provision of these Terms and the breach is not:
▲ remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
▲ capable of being remedied;
ii becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
iii is unable to perform a material obligation under these Terms for 30 days or more due to Force Majeure.
12.4 Consequences of termination or expiry:
a. termination or expiry of these Terms does not affect either party’s rights and obligations that accrued before that termination or expiry.
b. on termination or expiry of these Terms, you must pay all Fees for Services provided prior to that termination or expiry.
c. except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of these Terms and subject to clause 12.4d, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
d. At any time prior to one month after the date of termination or expiry, you may request:
i a copy of any Data stored using the SaaS Service, provided that you pay Numerik’s reasonable costs of providing that copy. On receipt of that request, Numerik must provide a copy of the Data in a common electronic form. Numerik does not warrant that the format of the Data will be compatible with any software; and/or
ii deletion of the Data stored using the SaaS Service, in which case Numerik must use reasonable efforts to promptly delete that Data, provided that Numerik may retain a copy of the Data to the extent required to create Analytical Data under clause 6.3. To avoid doubt, clause 9 will continue to apply where Numerik exercises this retention right.
To avoid doubt, Numerik is not required to comply with clause 12.4di to the extent that you previously requested deletion of the Data.
12.5 Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of these Terms, including clauses 6.7, 8, 9, 11, 12.4, 12.5 and 13, continue in force.
12.6 Rights to restrict: Without limiting any other right or remedy available to Numerik, Numerik may restrict or suspend your access to the SaaS Service and/or delete, edit or remove the relevant Data if Numerik considers that you (including any of your Permitted Users or personnel) have:
a. undermined, or attempted to undermine, the security or integrity of the SaaS Service or any Underlying Systems, including by the introduction of Malicious Code;
b. used, or attempted to use, the SaaS Service:
i for improper purposes; or
ii in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service;
c. transmitted, inputted or stored any Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights),or that is or may be Objectionable, incorrect or misleading; or
d. otherwise materially breached these Terms.
12.7 Process:
a. Numerik must notify you where it restricts or suspends your access, or deletes, edits or removes Data, under clause 12.6.
b. Clause 12.4di will not apply to the extent that it relates to Data deleted or removed under clause 12.6.
13 Disputes
13.1 Good faith negotiations: Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, these Terms through good faith negotiations.
13.2 Obligations continue: Each party must, to the extent possible, continue to perform its obligations under these Terms even if there is a dispute.
13.3 Right to seek relief: This clause 13 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
14 General
14.1 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure, provided that the affected party:
a. immediately notifies the other party and provides full information about the Force Majeure;
b. uses best efforts to overcome the Force Majeure; and
c. continues to perform its obligations to the extent practicable.
14.2 Rights of third parties: No person other than Numerik and you has any right to a benefit under, or to enforce, these Terms.
14.3 Waiver: To waive a right under these Terms, that waiver must be in writing and signed by the waiving party.
14.4 Independent contractor: Subject to clause 6.4, Numerik is an independent contractor of you, and no other relationship (e.g. joint venture, agency, trustor partnership) exists under these Terms.
14.5 Notices: If we need to contact you, we may do so by email (to the email you provided when you agreed to these terms or any other email listed in your account information) or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms or relating to the Website or the Service by emailing support@numerik.ly.
14.6 Severability:
a. If any provision of these Terms is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
b. If modification under clause 14.6a is not possible, the provision must be treated for all purposes as severed from these Terms without affecting the legality, enforceability or validity of the remaining provisions of these Terms.
14.7 Entire agreement: These Terms sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of these Terms that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the StartDate. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the New Zealand Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 14.7.
14.8 Subcontracting and assignment:
a. You may not assign, novate, subcontract or transfer any right or obligation under these Terms without the prior written consent of Numerik, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
b. Any change of control of you is deemed to be an assignment for which Numerik’s prior written consent is required under clause 14.8a. In this clause change of control means any transfer of shares or other arrangement affecting you or any member of your group which results in a change in the effective control of you.
14.9 Law: these Terms is governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms.
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