CFL will provide, and the Client will acquire, the VetLinkSQL Software as a Service, and related services, on the terms of this Agreement.
Definitions: In this Agreement terms with capital initials have the meanings given to them in Schedule 1 (Key Details) or as stated below:
||a unique code and login password that allows the Client to access the Software.
||the terms of this Agreement and any information that is not public knowledge and that is obtained from the other party in connection with this Agreement. Intellectual Property owned by CFL (or its licensors), including the Software, is CFL’s Confidential Information. The Data is the Client’s Confidential Information.
||all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Client that is stored using, or inputted into, the Services.
||an event beyond the control of a party, excluding a lack of funds.
|Intellectual Property Rights
||includes copyright and all worldwide rights conferred under statute, common law or equity relating to inventions, including patents, trade-marks, designs, circuit layouts, data and databases, confidential information, know how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
||has the meaning given in the Privacy Act 1993
||a related service described in the Key Details and any further services that CFL provides to the Client under this Agreement.
||The SaaS Service is described in more detail on the Website.
||the SaaS Service and any Related Service.
||the SaaS Service and any Related Service.
||The support described in the Schedule.
||the Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third-party solutions, systems and networks.
||Initial basic tour and training before “live” cut-across training
2.1 Access Key: Once CFL has received confirmation that the initial Fees have been paid, CFL will activate the Access Key for the Client and make the SaaS Service available to the Client.
2.2 General: CFL will use best efforts to provide the Services:
(a) in accordance with this Agreement and New Zealand law;
(b) exercising reasonable care, skill and diligence; and
(c) using suitably skilled, experienced and qualified personnel.
2.3 Non-exclusive: Nothing in this Agreement prevents CFL from providing the Services to any other person.
(a) Subject to clause 2.2 CFL 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. CFL 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. CFL does not make any warranty or representation on the availability of those features. If a third-party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, CFL may cease to make available that feature to the Client. If CFL exercises its right to cease the availability of a third-party feature, the Client is not entitled to any refund, discount or other compensation.
2.5 Underlying Systems: CFL is responsible for procuring all Underlying Systems reasonably required for it to provide the SaaS Service in accordance with this Agreement.
2.6 Client Systems:
The Client acknowledges that:
(a) the Client is solely responsible for acquiring, servicing, maintaining and updating all local equipment, computers, software, interfaces and communication services that allow access to and use of the Software;
(b) the operation and availability of the Client’s systems used for accessing the Software, including public telephone services, computer networks and the Internet, can be unpredictable and may interfere with or prevent access to the Software; and
(c) CFL is not in any way responsible for any interference with or prevention of the Client’s access to or use of the Software.
2.7 Additional Related Services: CFL may, from time to time, make available additional services to supplement the SaaS Service. At the Client’s request and subject to the Client paying the applicable Fees, CFL will provide to the Client an additional Related Service on the terms of this Agreement.
3.1 General use: The Client and its personnel will:
(a) use the Services in accordance with this Agreement solely for the Client’s own internal business purposes; and
(b) not resell, make available the Services to any third party or commercially exploit the Services.
3.2 Access conditions: When accessing the SaaS Service, the Client and its personnel will:
(a) not impersonate another person or misrepresent authority to act on behalf of others or CFL;
(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 so as to impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service;
(e) not attempt to view, access or copy any material or data other than that which the Client is authorised to access;
(f) neither use the SaaS Service in a manner, nor transmit, input or store any Data, that breaches any third party’s Intellectual Property Rights or privacy rights or is objectionable, defamatory, obscene, harassing, threatening, incorrect, misleading or unlawful in any way; and
(a) Only Permitted Users may access or use the SaaS Service.
(b) The Client may authorise any member of its personnel to be a Permitted User, in which case the Client will provide CFL with the Permitted User’s name and other information that CFL reasonably requires in relation to the Permitted User.
(c) The Client may reduce the number of Permitted Users with CFL’s approval but only after the Initial Term and then up to a maximum of 20% of the then current number of Permitted Users per annum. The Fees may be adjusted accordingly.
(d) The Client will procure each Permitted User’s compliance with clauses 3.1 and 3.2 and any other reasonable condition notified by CFL to the Client.
(e) A breach of this Agreement by the Client’s personnel is a breach by the Client.
3.4 Authorisations: The Client is responsible for procuring all licences and consents required to use the Services, including to use, store, input, process and distribute Data through the Services.
4.1 CFL access to Data:
(a) The Client acknowledges that:
CFL may require access to the Data to exercise its rights and perform its obligations under this Agreement; and
to the extent that this is necessary but subject to clause 7, CFL may authorise a member or members of its personnel to access the Data for this purpose.
(b) The Client will arrange all consents necessary for CFL to access the Data as described in clause 4.1(a).
4.2 Agent: To the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, CFL is acting as an agent of the Client for the purposes of all applicable privacy laws. The Client will obtain all necessary consents from the relevant individuals to enable CFL to collect, use, hold and process that information in accordance with this Agreement.
4.3 Backups of Data: While CFL will take standard industry measures to back up all Data stored using the Services, the Client will keep a separate back-up copy of all Data uploaded by it onto the SaaS Service.
4.4 International storage of Data: CFL may store Data in secure servers in Australia and other countries through AWS to provide optimum performance for the Client, and may access that Data in Australia and New Zealand from time to time.
4.5 Indemnity: The Client indemnifies CFL against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by CFL’s solicitors) and loss of any kind arising from any actual or alleged claim that any Data infringes the Intellectual Property Rights or privacy rights of a third party or that the Data is Objectionable, incorrect or misleading.
5.1 Fees: The Client will pay the Fees to CFL. VetLinkSQL may increase the Subscription Fees at the start of each Renewal Period upon 30 days’ prior notice to you and the Specific Terms will be deemed to have been amended accordingly.
5.2 Invoicing and payment:
(a) CFL will provide the Client with valid GST tax invoices (as applicable) on the dates set out in the Payment Terms, or if there are none, annually in advance for the Fees due in the following year, where the year runs from 1st April to 31st March; billing during the year will be billed pro-rata to the next 31st March only.
(b) The Fees exclude GST, which the Client will pay, if applicable, on taxable supplies under this Agreement.
(c) The Client will pay the Fees on the dates set out in the Payment Terms.
(d) Fees are to be paid in cleared funds without any set off or deduction to the bank account specified in Schedule 1.
(e) Once paid, the deposit is non-refundable and allocated only towards the setup as per quote.
(f) The Client acknowledges that billing for the software will commence one calendar month after Preliminary Training regardless of use of same.
5.3 Overdue amounts: CFL may charge interest on overdue amounts. Interest will be added at a rate of 2% monthly on all overdue amounts at the beginning on each month following the payment due date.
(a) Subject to clause 6.1(b), all Intellectual Property Rights in the Services, the Website, and all Underlying Systems are the property of CFL (and its licensors).
(b) All Intellectual Property Rights in, the Data remain the property of the Client. The Client grants CFL a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data in connection with the exercise of its rights and performance of its obligations under this Agreement.
6.2 Know how: To the extent not owned by CFL, the Client grants CFL a royalty-free, transferable, irrevocable and perpetual licence to use for CFL’s own business purposes any know how, techniques, ideas, methodologies, and similar Intellectual Property used by CFL in the provision of the Services.
6.3 Feedback: If the Client provides CFL 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 CFL; and
(b) CFL may use or disclose the feedback for any purpose.
6.4 Third party sites and material: The Client acknowledges 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 CFL endorsement or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, CFL excludes all responsibility or liability for those websites or feeds.
6.5 Third party Intellectual Property Rights indemnity:
(a) CFL indemnifies the Client against any claim or proceeding brought against the Client to the extent that claim or proceeding alleges that the Client’s use of the SaaS Service in accordance with this Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to the Client:
promptly notifying CFL in writing of the IP Claim;
making no admission of liability and not otherwise prejudicing or settling the IP Claim, without CFL’s prior written consent; and
giving CFL complete authority and information required for CFL to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for CFL’s account.
(b) The indemnity in clause 6.5(a) does not apply to the extent that an IP Claim arises from or in connection with:
the Client’s breach of this Agreement;
use of the SaaS Service for a purpose not contemplated by this Agreement or otherwise not authorised in writing by CFL; or
any third-party data or any Data.
(c) If an IP Claim is made, CFL may (at CFL’s option):
obtain for the Client the right to continue using the items subject to the IP Claim; or
modify, re-perform or replace items subject to the IP Claim so they become non-infringing.
7.1 Security: Each party will, unless it has the prior written consent of the other party:
(a) keep confidential at all times the other party’s Confidential Information;
(b) take adequate security measures to safeguard the other party’s Confidential Information from unauthorised 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 7.1(a) and (b).
7.2 Permitted disclosure: The obligations in clause 7.1 do not apply to any disclosure or use of Confidential Information:
(a) for the purpose of performing this Agreement or exercising a party’s rights under this Agreement;
(b) required by law;
(c) which is publicly available through no fault of the recipient of the Confidential Information;
(d) which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
(e) by CFL if required as part of a bona fide sale of its business to a third party, provided that CFL enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.
8.1 Mutual warranties: Each party warrants that it has full power to enter into and perform its obligations under this Agreement.
8.2 No implied warranties: To the maximum extent permitted by law:
(a) CFL’s warranties are limited to those set out in this Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Sale of Goods Act 1908) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to $1,000.00; and
(b) CFL makes no representation concerning the quality of the Services and does not promise that the Services will:
meet the Client’s requirements or be suitable for a particular purpose; or
be secure, free of viruses or other harmful code, uninterrupted or error free.
8.3 Consumer Guarantees Act: As the Client is acquiring the Services, and entering this Agreement, for the purpose of a business, the Consumer Guarantees Act 1993 does not apply to the supply of the Services.
8.4 Limitation of remedies: Where legislation or rule of law implies into this Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in this Agreement. However, the liability of CFL for any breach of that condition or warranty is limited, at CFL’s option, to supplying the Services again or paying the costs of having the Services supplied again.
9.1 Maximum liability: The maximum aggregate liability of CFL in connection with this Agreement, whether in contract, tort, breach of statutory duty or otherwise, will not in any Year exceed the SaaS Service Fees paid by the Client in the previous Year (which in the first Year is deemed to be the total SaaS Service Fees paid by the Client from the Start Date to the date of the first event giving rise to liability). The cap in this clause 9.1 includes the cap in clause 8.2(a).
9.2 Unrecoverable loss: Neither party is liable to the other in connection with this Agreement for any loss of profit, revenue, savings, business, use, data or goodwill; or consequential, indirect, incidental or special damage or loss of any kind.
9.3 Unlimited liability:
(a) Clauses 9.1 and 9.1 do not apply to limit CFL’s liability:
under the indemnity in clause (a); or
under or in connection with this Agreement for:
personal injury or death;
fraud or wilful misconduct; or
a breach of clause 7.
(b) Clause 9.1 does not apply to limit the Client’s liability:
to pay the Fees;
under the indemnity in clause 4.5; or
for those matters stated in clause 9.3(ii).
9.4 No liability for other’s failure: Neither party will be responsible, liable, or held to be in breach of this Agreement for any failure to perform its obligations under this Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under this Agreement, or by the negligence or misconduct of the other party or its personnel.
9.5 Mitigation: Each party will 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 this Agreement.
TERM, TERMINATION AND SUSPENSION
10.1 Duration: Unless terminated under clause 10.2 or 10.3, this Agreement will run from the Start Date to the End Date and will continue thereafter for successive terms of one Year each.
10.2 No fault termination: Either party may terminate this Agreement by giving the other party at least 90 days’ written notice prior to the end of the Initial Term or a subsequent anniversary of the Start Date or the contract will be deemed to have been renewed for another 12 months with fees payable. No refund of Fees will be paid where the Client has terminated the Agreement.
10.3 Other termination rights:
(a) Either party may, by notice to the other party, immediately terminate this Agreement if the other party:
breaches any material provision of this Agreement 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;
becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or Charge’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
is unable to perform a material obligation under this Agreement for 30 days or more due to Force Majeure.
(b) If the remedies in clause 6.5(c) are exhausted without remedying or settling the IP Claim, CFL may, by notice to the Client, immediately terminate this Agreement.
10.4 Consequences of termination:
(a) Termination of this Agreement does not affect either party’s rights and obligations that accrued before that termination.
(b) On termination of this Agreement, the Client will pay all Fees for Services provided prior to termination and return the Access Key to CFL.
(c) Except to the extent that a party has on-going rights to use Confidential Information, at the other party’s request following termination of this Agreement, a party will 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 two months following the date of termination, the Client may request:
a copy of any Data stored using the SaaS Service, provided that the Client pre-pays CFL’s a cost of $360.00 of providing that copy. On receipt of that request, CFL will provide a copy of the Data in a common electronic form but does not warrant that the format of the Data will be compatible with any software; and/or
deletion of the Data stored using the SaaS Service, in which case CFL will use reasonable efforts to promptly delete that Data.
(e) CFL is not required to comply with clause 10.4(d)(i) to the extent that the Client previously requested deletion of the Data.
(f) The Client acknowledges that all data will be deleted after 2 months following the date of termination
10.5 Obligations continuing: Clauses which, by their nature, are intended to survive termination of this Agreement, including clauses 4.5, 6, 7, 9, 10.4, 10.5 and 11, continue in force.
10.6 Suspending access: Without limiting any other right or remedy available to CFL, CFL may restrict or suspend the Client’s access to the SaaS Service where the Client (including any of its personnel):
(a) undermines, or attempts to undermine, the security or integrity of the SaaS Service or any Underlying Systems;
(b) uses, or attempts to use, the SaaS Service:
for improper purposes; or
in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service; or
(c) has otherwise materially breached this Agreement (in CFL’s reasonable opinion).
(d) The client has overdue account balances in excess of 60 days for any and all related services from CFL
10.7 Notice: CFL will notify the Client where it restricts or suspends the Client’s access under clause 10.6.
11.1 Good faith negotiations: Before taking any Court action, a party will use best efforts to resolve any dispute under, or in connection with, this Agreement through good faith negotiations.
11.2 Obligations continue: Each party will, to the extent possible, continue to perform its obligations under this Agreement even if there is a dispute.
11.3 Right to seek relief: This clause 11 does not affect either party’s right to seek urgent interlocutory or injunctive relief.
12.1 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under this Agreement 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.
12.2 Rights of third parties: No person other than CFL and the Client has any right to a benefit under, or to enforce, this Agreement.
12.3 Waiver: To waive a right under this Agreement, that waiver will be in writing and signed by the waiving party.
12.4 Notices: Any notice under this Agreement will be made in writing, email or by fax sent to the address the other party, as specified in Schedule 1. A notice sent by email or fax will be deemed to be received when sent to the correct email or fax address of the recipient. Any other notice will be deemed to be received when left at the recipient’s specified address or on the 5th day following the date of posting.
12.5 Severability: Any illegality, unenforceability or invalidity of a provision of this Agreement does not affect the legality, enforceability or validity of the remaining provisions of this Agreement.
12.6 Variation: Any variation to this Agreement will be in writing and signed by both parties.
12.7 Entire agreement: This Agreement 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 this Agreement that is not expressly set out in this Agreement, and no such representation, warranty or agreement has any effect from the Start Date. Without limiting the previous sentence, the parties contract out of sections 9, 12A and 13 of the Fair-Trading Act 1986.
12.8 Subcontracting and assignment:
(a) The Client may not assign, novate, subcontract or transfer any right or obligation under this Agreement without the prior written consent of CFL, that consent not to be unreasonably withheld. The Client remains liable for its obligations under this Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer will be in writing.
(b) Any change of control of the Client is deemed to be an assignment for which CFL’s prior written consent is required under clause (a). In this clause change of control means any transfer of shares or other arrangement affecting the Client or any member of its group which results in a change in the effective control of the Client.
12.9 Law: This Agreement is governed by New Zealand law. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with this Agreement.
12.10 Counterparts: This Agreement may be signed in counterparts, each of which constitutes an original and both of which constitute the same agreement. A party may enter this Agreement by signing and emailing a counterpart copy to the other party.
12.11 The Client agrees to update CFL in writing of any change in address, email, phone or other relevant contact details in a timely manner
12.12 Any trading company name or address change that requires re-registration of VetLinkSQL in terms of logo printout of the two lines on invoices will incur a fee of $150.00
12.13 The Client acknowledges that any sale of the Client’s business does not automatically transfer this contract to the new owners; a new agreement or a transfer of the current agreement, agreed to by CFL, must be executed to remove the Client’s liability after any such sale.