1.       Agreement

1.1.          Terms of Service: These Terms of Service govern:

(a)    your access and use of the Platform Services, including for the avoidance of doubt, access to the Platform Services on a free-trial basis; and

(b)    any related services provided, or to be provided, to you by Cotiss pursuant to an Order.

By executing an Order or otherwise accessing and using the Platform Services, you agree to these Terms of Service. If you do not agree to these Terms of Service, you are not authorised to access and use the Platform Services. In these Terms of Service, any reference to the "Agreement" means these Terms of Service, together with the applicable Order (if any). 

1.2.          Effective Date: Except to the extent expressly agreed otherwise in an Order, the commencement date of this Agreement is the date which is the earlier of: 

(a)    your initial access to the Platform Services through any online provisioning, registration or order process; or 

(b)    if applicable, the date on which the Order is fully executed,

(Effective Date).

2.      The Platform Services

2.1.          Permitted Use: During the Subscription Term, you may access and use the Platform Services in accordance with these Terms of Service, including any usage restrictions set out in the applicable Order and solely for your own internal business purposes.

2.2.         Users:

(a)    Without limiting clause 2.6, only your Users may access or use the Platform Services. 

(b)    You may authorise any member of your personnel to be a User, in which case you will provide Cotiss with the User’s name and any other information that Cotiss reasonably requires in relation to the User.

(c)    Each User must keep their login credentials confidential and not share them with anyone else. 

(d)    You are responsible for your Users’ compliance with this Agreement and all acts and omissions of your Users in connection with their access to and use of the Platform Services. Any breach of this Agreement by your personnel (including, to avoid doubt, a User) is deemed to be a breach of this Agreement by you. 

(e)    You will promptly notify Cotiss if you become aware of any compromise of your User login credentials or any breach of this Agreement by any of your Users.

(f)     Except to the extent otherwise expressly provided in this Agreement, you are responsible for procuring all licences, authorisations and consents required for you and your personnel to access and use the Platform Services, including to use, store and input Content into, and process and distribute Content through, the Platform Services.

2.3.         Administrators: 

(a)    You may designate certain Users as administrators with control over your Platform Services account, including management of Users and your Content, as described in the Documentation. You are fully responsible for your choice of administrators and all of their acts and omissions in connection with their access to and use of the Platform Services.

(b)    Cotiss is entitled to rely upon any representation of your administrator(s) without further verification of authority. Cotiss may, from time to time, in its sole discretion, require written documentation from you verifying the authority or continued authority of any administrator, which you shall provide upon request.

2.4.        Registration Using Corporate Email: You warrant that your employee who opens an account on your behalf has the requisite authority to do so. You acknowledge that the administrator controlling the account may be able to: 

(a)    access, disclose, restrict or remove information from the Platform Services; and 

(b)    restrict or terminate Users’ access to the Platform Services.

2.5.         Individual User Account Takeover: The Platform Services may contain functionality allowing you to convert accounts previously registered by individuals using email addresses from your domain into User accounts under your control. You represent and warrant that you have all necessary rights and consents to the extent you convert any existing accounts registered using email addresses from your domain into accounts under your control.

2.6.         Restrictions: You will not (and will not permit anyone else to) do any of the following: 

(a)    provide access to, distribute, sell or sublicense the Platform Services to a third party (except to the extent expressly permitted by this Agreement); 

(b)    use the Platform Services on behalf of, or to provide any product or service to, third parties;

(c)    use the Platform Services to develop a similar or competing product or service; 

(d)    scrape, data mine, reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to or unauthorised data from the Platform Services, except to the extent expressly permitted by law (and then only with prior written notice to Cotiss);

(e)    modify or create derivative works of the Platform Services or copy any element of the Platform Services;

(f)     remove or obscure any proprietary notices in the Platform Services or otherwise misrepresent the source of ownership of the Platform Services; 

(g)    except with Cotiss' prior written consent, publish benchmarks or performance information about the Platform Services; 

(h)    interfere with the operation of the Platform Services, circumvent its access restrictions or conduct any security or vulnerability test of the Platform Services; 

(i)      transmit any viruses or other harmful materials to the Platform Services; 

(j)      allow Users to share User seats or access credentials; 

(k)    engage in any fraudulent, misleading, illegal or unethical activities related to the Platform Services; 

(l)      post or upload any Content or other information or material that contains any viruses, or infringes any third party’s rights of privacy or Intellectual Property Rights; or 

(m)   use the Platform Services for any illegal, immoral, indecent or inappropriate purpose or to store or transmit material which contains illegal, immoral or indecent content.

2.7.         Compliance with policies: You must comply with (and ensure that your Users comply with) all applicable and reasonable security and operational guidelines and procedures in respect of the Platform Services that are made known to you by Cotiss, including without limitation, the Policies.

3.      Participating Parties

3.1.          Sharing settings: 

(a)    You acknowledge that the Platform Services may allow you to grant Participating Parties access to the Cotiss platform to submit and create Content on your behalf and/or to receive your Content within the Platform Services.

(b)    Through the Platform Services you control the Participating Parties with whom you share links with, or grant access to view and/or share your Content. Without limiting Cotiss' obligations under this Agreement, you acknowledge and agree that Cotiss is not responsible, and shall have no liability to you (or any third party) in respect of any Participating Party's access to and use of your Content to the extent that Participating Party has been granted access to your Content by you or any of your Users.

3.2.         Acknowledgement: This clause 3.2 shall apply to you if you are granted access to the Platform Services or any Platform Services features as a "Participating Party" by another User of the Cotiss platform (Referring User):

(a)    If you are granted access to the Platform Services or any Platform Services features by a Referring User as a Participating Party (Participating Party Access), you acknowledge and agree that without limiting clause 2 of these Terms of Service, your access to and use of the Platform Services (and any Content made available to you by the Referring User) is limited to the scope of access to the Cotiss platform granted by the Referring User. Participating Party Access is not guaranteed and Cotiss or the applicable Referring User may terminate any Participating Party Access at any time for any reason.

(b)    Notwithstanding anything to the contrary in these Terms of Service, you acknowledge and agree that your access to and use of the Platform Services is provided on an “AS IS” basis without any warranty, indemnity or support and to the fullest extent permitted by law, Cotiss shall have no liability to you or any other person in respect of the Platform Services provided on a Participating Party Access basis. To the extent such exclusion of liability is not enforceable under applicable law, then Cotiss' total liability in respect of any Platform Services provided on a Participating Party Access basis shall be limited to NZ$50.

(c)    Notwithstanding anything to the contrary in these Terms of Service, you remain liable to Cotiss for any loss, liability, damage, cost or expense suffered or incurred by Cotiss to the extent arising out of, or in connection with your, or your Users', use of and access to the Platform Services or breach of these Terms of Service.  

4.      Support Services
During the Subscription Term, Cotiss will provide the Support Services in accordance with the Support Policy. Cotiss warrants that the Support Services, as described in the Support Policy, may change but will not materially degrade during the Subscription Term.

 

5.      Your Content  

5.1.          Responsibility for your Content: Without limiting Cotiss' obligations under this Agreement, you acknowledge that you are solely responsible for the accuracy, quality, integrity and legality of your Content and of the means by which you acquired such Content. You represent and warrant that you have made all disclosures and have all rights, consents and permissions necessary to use your Content with the Platform Services without violating or infringing any applicable law, third-party rights (including Intellectual Property Rights, publicity or privacy rights) or any terms or privacy policies that apply to the Content.

5.2.         Prohibited and High Risk Uses: Your Content must not include Prohibited Data and you must not use the Platform Services for High Risk Activities. You acknowledge that the Platform Services are not intended to meet any legal obligations for these uses and Cotiss has no liability for Prohibited Data or use of the Platform Services for High Risk Activities.

5.3.         Data Use: You grant Cotiss the non-exclusive, worldwide right to use, copy, store, transmit and display your Content, but only as necessary to perform the Services or otherwise comply with its obligations, or enforce its rights, under this Agreement.

5.4.         Security: Cotiss will use reasonable technical and organisational measures designed to protect the Service and your Content. You may request a copy of Cotiss’ latest System and Organisation Controls (SOC) report. 

5.5.         Data Export: During the Subscription Term and within 30 days thereafter the end of the Subscription Term, you may export all your Content from the Platform Services using the export features described in the Documentation. After this export period ends, Cotiss may delete all remaining Content in accordance with its standard backup schedule and procedures. If you elect to proactively delete your account at any time, all associated Content may be deleted permanently.

6.      Suspension of access to Platform Services 
Cotiss may suspend your or a User’s access to and use of the Platform Services and related services in the event that Cotiss considers (acting reasonably) that you or any of your Users (as applicable) has breached the terms of this Agreement. Cotiss will provide you with reasonable prior notice in advance of any proposed suspension (such period of notice having regard to the nature of the breach), provided that Cotiss is not obliged to give you prior notice of suspension where your or your User’s actions giving rise to the suspension risk harm to other customers or the security, availability or integrity of the Platform Services. Once the breach giving rise to Cotiss' right to suspend access to the Platform Services is resolved to Cotiss' reasonable satisfaction, Cotiss will promptly restore access to the Platform Services. 

7.      Third-Party Platforms
You may choose to use the Platform Services with Third-Party Platforms. Use of Third-Party Platforms is subject to your agreement with the relevant provider and not this Agreement. Cotiss does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability or interoperability or how the Third-Party Platforms or their providers use your Content. If you enable a Third-Party Platform with the Platform Services, Cotiss may access and exchange your Content with the Third-Party Platform on your behalf.

8.      Technical Services
Any purchased Technical Services are as described in the relevant Order. You will give Cotiss timely access to your Materials reasonably needed for the Technical Services, and if you fail to do so, Cotiss’ obligation to provide Technical Services will be excused until access is provided. Cotiss will use your Materials only for purposes of providing the Services or Technical Services. Any Technical Services deliverables relate to the configuration or use of the Platform Services. You may use Technical Services deliverables only as part of its authorised use of the Platform Services, subject to the same terms as for the Platform Services in clause 2 (The Platform Services).

9.      Commercial Terms

9.1.          Renewal: Except where otherwise provided in the Order, subscriptions for Platform Services automatically renew at the end of the Initial Subscription Term (and each Renewal Term) for further successive periods equal to the Initial Subscription Term (each period being a Renewal Term) unless either party notifies the other in writing at least thirty (30) days prior to the expiry of the then current Subscription Term terminating this Agreement and your access to and use of the Platform Services. Except to the extent expressly set out in this Agreement (including the applicable Order), your subscription for Platform Services, and all corresponding payment obligations in respect of such subscriptions are non-cancellable during the applicable Subscription Term, and all fees paid are non-refundable. Subscription downgrades in respect of the Platform Services are only permissible at the end of the then-current Subscription Term.

 

9.2.         Fees and Taxes: Fees are as described in each Order. Fees are invoiced on the schedule in the Order. Expenses may be payable and will be outlined in the Order. Unless the Order provides otherwise, all fees are payable on the 20th of the month following the start date specified in the applicable Order. Fees for renewal Subscription Terms are at the rate of the latest Order adjusted for the latest Reserve Bank of New Zealand Consumer Price Index, or as negotiated between the parties at the time of renewal. Late payments are subject to a service charge of 1.85% per month or the maximum amount allowed by Law, whichever is less. You shall be responsible to pay any reasonable collection expenses (including legal fees) incurred by Cotiss. Except to the extent expressly set out in this Agreement, all fees are non-refundable. Fees and expenses are exclusive of Taxes.

9.3.         Invoices: All fees will be invoiced to you by Cotiss on the dates or at the times specified in the relevant Order.  Each invoice will be:

(a)    a valid tax invoice for the country in which you are based; 

(b)    accompanied by such information reasonably requested by you from time to time to support the services and deliverables being invoiced,
(Valid Tax Invoice).

9.4.        Dispute over invoice: If you dispute in good faith the whole or any portion of any Valid Tax Invoice, you must notify Cotiss of such dispute as soon as practicable and no later than two Business Days prior to the due date for payment of the relevant Valid Tax Invoice and will pay the undisputed portion of the invoice by the due date for payment. The disputed portion of the invoice may be withheld by you and will be dealt with in accordance with the dispute resolution process in clause 18 (Dispute Resolution). If no dispute is raised in respect of a Valid Tax Invoice within the timeframe for such disputes set out in this clause, then the relevant invoice will be deemed to be accepted by you.

9.5.         Payment terms:  All sums due to Cotiss under this Agreement:

(a)    are exclusive of any GST which, where applicable, will be payable by you to Cotiss in addition to the fees stated, and

(b)    will be paid to the credit of a bank account to be designated in writing by Cotiss.

10.    Warranties and Disclaimers

10.1.        Limited Warranty: Cotiss warrants to you that:

(a)    the functionality and features of the Platform Services will comply in all material respects with the Documentation and will not materially degrade from the functionality and features described in the Documentation during the Subscription Term (the Performance Warranty); and 

(b)    Cotiss will perform any Technical Services in a professional and workmanlike manner (the Technical Services Warranty).

10.2.       Warranty Remedy: If you consider that Cotiss has breached either of the warranties given in clause 10.1 (Limited Warranty), you must promptly notify Cotiss of your claim (and in any event, within 30 days of discovering the issue giving rise to the claim). If it is determined that the relevant Service has been provided in breach of any warranty in clause 10.1, then Cotiss will use reasonable efforts to correct the non-conformity. If Cotiss cannot do so within 60 days of your warranty claim, either party may terminate the affected Order as relates to the non-conforming Service. If this Agreement is terminated in accordance with this clause 10.2, Cotiss will then refund to you any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Technical Services (for the Technical Services Warranty). The remedies outlined in this clause 10.2 shall constitute Cotiss' entire liability and your (and your Users') exclusive remedy for the breach of the warranties set out in clause 10.1.

10.3.       Warranty exclusions: Cotiss is not responsible for any claimed breach of any warranty set out in clause 10.1 to the extent caused by or relating to:

(a)    issues caused by misuse or unauthorised modifications;

(b)    defects caused by bespoke configurations to the Platform Services required by you; 

(c)    defects or errors caused by or related to internet connections;

(d)    issues in or caused by Third-Party Platforms or other third-party systems;

(e)    any matter or circumstance which is beyond Cotiss' reasonable control, including force majeure events (as defined in clause 19.8); or 

(f)     your access to the Platform Services on a Trial and Beta Access basis, Participating Party Access basis or other free or evaluation use of the Platform Services.

10.4.       Disclaimers: Except as expressly provided in clause 10.1 (Limited Warranty), the Platform Services, Support Services, Technical Services and all related Cotiss services provided, or to be provided under this Agreement are provided “AS IS”. Cotiss and its suppliers make no other warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title or noninfringement. Without limiting its express obligations in clause 3 (Support Services), Cotiss does not warrant that your use of the Platform Services will be uninterrupted or error-free or that the Platform Services will meet your requirements, operate in combination with third-party services used by you or maintain your Content without loss. Cotiss is not liable for delays, failures or problems inherent in use of the Internet and electronic communications or other systems outside Cotiss’ control. You may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.

11.     Term and Termination

11.1.         Term: This Agreement shall commence on the Effective Date and shall continue until expiry of the Subscription Term unless prior terminated in accordance with its terms.

11.2.        Termination for Cause: Either party may terminate this Agreement immediately upon written notice to the other party, if the other party:

(a)    commits a material breach of this Agreement which is incapable of remedy or commits a material breach of this Agreement (including a failure to pay fees) and fails to cure such breach within 30 days after notice;

(b)    the other party ceases to carry on business activities;

(c)    the other party:

i)        goes into receivership or has a receiver, trustee and manager (or either of them) (including a statutory manager) appointed in respect of all or any of its property;

ii)      is unable to pay its debts as they fall due, or is presumed to be unable to pay its debts as they fall due, in terms of section 287 of the Companies Act 1993 (whether that party is incorporated under that Act or not);

iii)     makes an assignment for the benefit of, or enters into or makes any arrangement or composition with, its creditors;

iv)     any resolution is passed or any proceeding is commenced for the liquidation of the other party (whether on a voluntary or involuntary basis); or

v)      any event which is analogous to those listed in paragraphs (i) or (iv) of this clause 11.2(c) occurs.

If the Agreement is terminated by you in accordance with this clause 11.2, then you will be entitled to a refund of any pre-paid fees for the Platform Services in respect of the remaining portion of the then-current Subscription Term. 

11.3.        Effect of Termination: 

(a)    Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry. 

(b)    Upon expiration or termination of this Agreement: 

i)        the Client must pay all fees for Services provided prior to that termination or expiry; 

ii)      your access to the Platform Services will cease, other than limited use of the Platform Services to export your Content as described in clause 5.5 (Data Export);

iii)     at the disclosing party’s request, the receiving party will delete all of the disclosing party’s Confidential Information (excluding your Content). Your Content and other Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions.

11.4.        Survival: The following clauses together with any other clauses which by their nature are intended to survive expiration or termination of this Agreement will survive expiration or termination of this Agreement: 2.6 (Restrictions), 5.5 (Data Export), 9.2 (Fees and Taxes), 10.4 (Disclaimers), 11.3 (Effect of Termination), 11.4 (Survival), 12 (Intellectual Property), 13 (Limitations of Liability), 14(Indemnification), 15 (Confidentiality), 16 (Personal Information), 17 (Trial and Beta Access), 18 (Dispute Resolution) and 19 (General Terms). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

12.    Intellectual Property

12.1.        Cotiss Intellectual Property: Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for the rights of use expressly granted under this Agreement, Cotiss and its licensors retain all Intellectual Property Rights in the Platform Services, any Technical Services deliverables and related Cotiss technology, templates, formats and dashboards, including any modifications or improvements to these items made by Cotiss. You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.

12.2.       Ownership of Content: Title to, and all Intellectual Property Rights in, your Content (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Content for any purpose in connection with the exercise of our rights, and performance of our obligations, in accordance with this Agreement. 

 

12.3.       Usage Data: You acknowledge and agree that:

 

(a)    Cotiss may:

 

i)        use your Content, Materials and information about your and your Users' use of the Platform Services to generate anonymised and aggregated statistical and analytical data (Usage Data); and

 

ii)      use Usage Data for our internal research and product development purposes (including to improve the provision of the Cotiss services to other customers and enhance overall performance of the Cotiss platform) and to conduct statistical analysis and identify trends and insights; 

 

(b)    our rights under clause 12.3(a) will survive termination or expiry of this Agreement; and

 

(c)    title to, and all Intellectual Property Rights in, Usage Data is and remains our property.

 

12.4.       Feedback: If you provide us with ideas, comments or suggestions relating to the Platform Services or any related Cotiss services (Feedback), 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 Cotiss and Cotiss may use or disclose the Feedback for any purpose. 

 

13.    Limitations of Liability

13.1.        Consequential loss: Neither party (nor its suppliers) (first party) will have any liability whether in contract or tort (including negligence) or otherwise, to the other party arising directly or indirectly out of or related to this Agreement for, loss of use of data, loss of profits, loss of revenue, loss of goodwill, loss of anticipated savings, loss of opportunity, loss of production, interruption of business due to an event of force majeure, or any loss, damage, cost or expense of any kind whatsoever that is indirect, special, or incidental, or consequential in nature of any kind, even if such loss, damage, cost or expense was reasonably foreseeable by the first party or if the first party was informed of the possibility of such loss, damage, cost or expense in advance.

13.2.       Liability Cap: The maximum aggregate liability of Cotiss arising under or in connection with this Agreement or relating to the Services, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, will not in any Year exceed the amount of any fees paid or payable by you for Services under the Agreement during the relevant Year.

13.3.       Exclusions to liability cap: Clause 13.2 will not limit Cotiss' liability:

(a)    in respect of any breach of its obligations under clause 15 (Confidentiality), 

(b)    in respect of Cotiss' fraud or wilful misconduct;  

(c)    arising under the indemnity given in clause 14.1; or 

(d)    in respect of any death or personal injury resulting from Cotiss' breach of this Agreement.

13.4.       Consumer Guarantees Act: You acknowledge and agree that you are acquiring the Services, and entering into this Agreement, for the purposes of trade.  The parties agree that:

(a)    to the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Services or this Agreement; and

(b)    it is fair and reasonable that the parties are bound by this clause 13.4.

13.5.       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 the Agreement.

14.    Indemnification

14.1.        Indemnification by Cotiss: Cotiss will defend you from and against any claim or proceeding brought against you by a third party to the extent that claim or proceeding alleges that your use of the Platform Services in accordance with this Agreement, infringes that third party’s Intellectual Property Rights (Third Party IP Claim), and will indemnify and hold harmless you against any damages or costs finally awarded against you (including reasonable attorneys’ fees) or agreed in settlement by Cotiss resulting from the Third Party IP Claim.

14.2.       Indemnification by you: You will defend Cotiss from and against any third-party claim to the extent resulting from your Content, your Materials or your breach or alleged breach of this Agreement, and will indemnify and hold harmless Cotiss against any damages or costs finally awarded against Cotiss (including reasonable attorneys’ fees) or agreed in settlement by you resulting from the claim.

14.3.       Procedures: The indemnifying party’s obligations under clauses 14.1 and 14.2 are subject to the indemnified party: 

(a)    providing the indemnifying party prompt notice of the relevant claim or proceeding; 

(b)    granting the indemnifying party the exclusive right to control and direct the investigation, defence and settlement of the claim; 

(c)    making no admission of liability and not otherwise prejudicing or settling the claim, without the indemnifying party's prior written consent; and 

(d)    providing to the indemnifying party all reasonably necessary cooperation in respect of the claim, at the indemnifying party’s expense for reasonable out-of-pocket costs. 

The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Platform Services, when Cotiss is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.

14.4.       Mitigation and Exceptions: In response to any notified Third Party IP Claim, if required by settlement or injunction or as Cotiss determines necessary to avoid material liability, Cotiss may, at its option:

(a)    procure rights for your continued use of the Platform Services;

(b)    replace or modify the allegedly infringing portion of the Platform Services to avoid infringement without reducing the Platform Services' overall functionality; or

(c)    terminate the affected Order and refund to you any pre-paid, unused fees for the Platform Services in respect of the remainder of the then-current Subscription Term. Cotiss’ obligations under the indemnity in clause 14.1 do not apply to the extent the Third Party IP Claim arises from or in connection with:

i)        your modification of the Platform Services or use of the Platform Services in combination with items not specified in the Documentation or provided by Cotiss (including Third-Party Platforms);

ii)      Software other than the most recent release provided by Cotiss; 

iii)     your unauthorised use of the Platform Services or use of the Platform Services in a manner or for a purpose not reasonably contemplated by this Agreement; 

iv)     your continued use the Platform Services (or any element thereof) after being notified of allegedly infringing activity or informed of modifications that would have avoided the alleged infringement; or

v)      your use of the Platform Services on a free-trial basis or your use of any beta-version of the Cotiss platform for evaluation purposes. 

This clause 14 sets out your exclusive remedy and Cotiss’ entire liability regarding infringement of third-party intellectual property rights.

15.    Confidentiality

15.1.        Definitions: For the purposes of this clause: 

(a)    Disclosing Party means the party disclosing the relevant Confidential Information under this Agreement.

(b)    Receiving Party means the party receiving the relevant Confidential Information under this Agreement.

15.2.       Confidentiality obligations:  The Receiving Party must:

(a)    use the Disclosing Party’s Confidential Information solely for the purpose of, and solely to the extent necessary for, exercising the Receiving Party’s rights and complying with the Receiving Party’s obligations under this Agreement; and

(b)    only disclose the Disclosing Party’s Confidential Information to those of the Receiving Party’s employees, agents and contractors to whom, and to the extent that, such disclosure is reasonably necessary for the purpose of exercising the Receiving Party’s rights and complying with the Receiving Party’s obligations under this Agreement.

15.3.       Exclusions: These confidentiality obligations do not apply to Confidential Information that the Receiving Party can document: 

(a)    is or becomes public knowledge through no fault of the Receiving Party or any of the Receiving Party’s employees, agents or subcontractors; 

(b)    it rightfully knew or possessed prior to receipt under this Agreement without breaching any obligations of confidence including to the Disclosing Party; 

(c)    it rightfully received from a third party who has not derived it, directly or indirectly, from the Disclosing Party without breach of confidentiality obligations; 

(d)    is required to be disclosed by law, or to the courts of any competent jurisdiction, or to any government regulatory or financial authority; or 

(e)    it independently developed without breaching any of the Receiving Party’s obligations under this Agreement and without using the Disclosing Party’s Confidential Information. 

15.4.       Disclosure to Personnel:  Cotiss must ensure that any person to whom Cotiss makes any disclosure in accordance with clause 15.2(b):

(a)    is made aware of, and subject to, the Cotiss’ obligations under clause 15.2; and

(b)    has entered into a written undertaking of confidentiality in favour of Cotiss that is at least as restrictive as the undertakings set out in clause 15.2 and that applies to the Confidential Information,

(c)    and Cotiss remains responsible to you for any unauthorised use or disclosure of your Confidential Information by such persons as if the use or disclosure was made by Cotiss under this clause 15.

15.5.       Misuse or breach:  Cotiss will notify you in writing immediately upon becoming aware of any:

(a)    potential, threatened or actual misuse or unauthorised disclosure of Confidential Information by any person to whom Cotiss makes any disclosure in accordance with clause 15.2(b); or

(b)    breach of Cotiss’ obligations under this clause 15,

(c)    and will co-operate with you in preventing or limiting such misuse, unauthorised disclosure or breach, at the cost of Cotiss.

15.6.       Remedies: Each party acknowledges that any breach of this clause 15 by the Receiving Party may cause the Disclosing Party substantial harm for which damages alone are an insufficient remedy. The Disclosing Party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this clause 15 by the Receiving Party.

15.7.       Required Disclosures: Nothing in this Agreement prohibits either party from making disclosures, including of your Content and other Confidential Information, if required by Law, subpoena or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

15.8.       Publicity: Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by law, provided that you acknowledge and agree that Cotiss may include your name and trademarks in Cotiss’ customer lists, on the cotiss.com website and in promotional materials. For the purpose of this clause 15.8, you grant Cotiss a non-exclusive, royalty-free, worldwide license to use your name, logo, and trademarks (Brand) on the Cotiss website and in any associated marketing collateral, including but not limited to case studies, press releases, and presentations. Cotiss is also granted permission to use any quotes or testimonials provided by you for promotional purposes. Cotiss will ensure that any use of your Brand and service feedback is in a manner that is consistent with your Brand guidelines, as provided to Cotiss from time to time.

16.    Personal Information

16.1.        You acknowledge and agree that to the extent your Content contains Personal Information, in collecting, holding and processing that information through the Platform Services, Cotiss is acting as your agent for the purposes of the Privacy Act and any other applicable Privacy Law.  You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with this Agreement.

17.     Trial and Beta Access

17.1.        This clause 17 shall apply if you receive access to Platform Services on a trial basis free of charge or if you are granted access to a beta version of the Platform Services for evaluation purposes. 

17.2.       If you receive access to the Platform Services or Platform Services features on a free, pilot or trial basis or as an alpha, beta or early access offering (Trial and Beta Access), use is permitted only for your internal evaluation during the period designated by Cotiss (or if not designated, 30 days). 

17.3.       Trials and Betas are optional and either party may terminate any Trial and Beta Access at any time for any reason. The Platform Services or Platform Services features provided on a Trial and Beta Access basis may be inoperable, incomplete or include features that Cotiss may never release, and their features and performance information are Cotiss’ Confidential Information. 

17.4.       You acknowledge that any Content entered into the Platform Services during any Trial and Beta Access period will be permanently lost unless you purchase a subscription to the Platform Services covered by the trial. 

17.5.       Notwithstanding any other term of this Agreement, during the Trial and Beta Access period, the Platform Services are provided “AS IS” without any warranty, indemnity or support and to the fullest extent permitted by law, Cotiss shall have no liability to you or any other person in respect of the Platform Services provided on a Trial and Beta Access basis. To the extent such exclusion of liability is not enforceable under applicable law, then Cotiss' total liability in respect of any Platform Services provided on a Trial and Beta Access basis shall be limited to NZ$50.

17.6.       Notwithstanding any other term of this Agreement, you remain liable under this Agreement to Cotiss for any damages arising out of, or in connection with, your or your Users' use of and access to the Platform Services during any Trial and Beta Access period, any breach of this Agreement by you, or your Users, or your indemnification obligations under this Agreement.  

18.    Dispute resolution

18.1.        Disputes: The parties shall use reasonable endeavours to resolve any and all disputes arising under or in connection with this Agreement by good faith negotiation.

18.2.       Mediation: If the parties cannot resolve the dispute by negotiations under clause 18.1 within 10 Business Days, a party may, by written notice to the other party, require that the dispute be dealt with by mediation under the following terms:

(a)    The mediation shall be conducted in accordance with the Mediation Protocol of AMINZ then in force (or any protocol or mediation agreement which replaces it).

(b)    The mediation shall be conducted by a mediator and at a fee jointly agreed in writing by the parties. Failing agreement between the parties within 10 Business Days of the giving of the notice requiring mediation, the mediator will be selected and his or her fee determined by the chairperson for the time being of AMINZ (or his or her nominee).

(c)    The mediation shall take place in Auckland, New Zealand at such address as determined by the mediator, provided that any party may, if permitted by the mediator, attend via telephone conference, video conference or any similar means of electronic, audio or audio-visual communication.

(d)    If the dispute is settled at or following mediation under this clause 18.2, such settlement shall be recorded in writing and be signed by the parties, whereupon it shall be final and binding on the parties.

(e)    The costs of the mediation, excluding the parties’ own legal and preparation costs, will be shared equally by the parties.

18.3.       Urgent relief: No party may initiate or commence court or arbitration proceedings relating to a dispute unless it has complied with the procedure set out in this clause 18, provided that application may still be made to the courts:

(a)    for interlocutory relief;

(b)    to recover or enforce a debt payable; or

(c)    to enforce a settlement agreed to by the parties under clause 18.2.

19.    General Terms

19.1.        Assignment: Neither party may assign this Agreement without the prior consent of the other party, provided that Cotiss may assign its rights and obligations under this Agreement without your prior consent to a related body corporate, to a successor by operation of law, or by reason of the sale or transfer of all or substantially all of its stock or assets to another entity. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

19.2.       Governing Law, Jurisdiction and Venue: This Agreement is governed by the laws of New Zealand without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be in New Zealand Courts and parties submit to the personal jurisdiction of those courts.

19.3.       Notices: Except as set out in this Agreement, any notice or consent under this Agreement must be in writing and will be deemed given: 

(a)    upon receipt if by personal delivery, 

(b)    upon receipt if by certified or registered New Zealand mail (return receipt requested) or 

(c)    one day after dispatch if by a commercial overnight delivery service. 

If to Cotiss, notice must be provided to legal@cotiss.com, Attention: Matthew Whiting. All notices to Cotiss must include a copy emailed to harry.w@cotiss.com. If to you, Cotiss may provide notice to the address you provided at registration. Either party may update its address with notice to the other party. Cotiss may also send operational notices to you by email or through the Platform Services.

19.4.       Entire Agreement: This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.

19.5.       Conflict: In the event of any conflict or inconsistency between the documents comprising an Agreement, the following descending order of precedence shall apply: (i) the Order, (ii) the Terms of Service; and (iii) the Policies and any other document incorporated into the Agreement by reference.

19.6.       Amendments: Cotiss may amend these Terms of Service at any time by posting a revised version at https://www.cotiss.com/terms-conditions, provided that the amendments will only be effective immediately upon the start of the next Renewal Term (defined in clause 9.1). If you object to any proposed amendment to the Terms of Service, then as your sole and exclusive remedy you may elect not to renew the Platform Services beyond the then-current Subscription Term.

19.7.       Waivers and Severability: Waivers must be signed by the waiving party’s authorised representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary, so the rest of this Agreement remains in effect.

19.8.       Force Majeure: Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, pandemic, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster. The party seeking to rely on this clause 19.8 must:

(a)    notify the other party as soon as practicable after the force majeure event occurs and provided full information concerning the force majeure event, including an estimate of the time likely to be required to overcome it;

(b)    use its best endeavours to overcome the force majeure event and minimise the loss to the other party; and

(c)    continue to perform its obligations under this Agreement as far as practicable.

19.9.       Subcontractors: Cotiss may use subcontractors to perform the Services and permit them to exercise Cotiss’ obligations. Cotiss will remain liable to you for all acts or omissions of each subcontractor as if they were the acts or omissions of Cotiss.

19.10.     Definitions

Business Day means any day other than a Saturday, Sunday or statutory holiday in Auckland, New Zealand.

Confidential Information means all non-public information disclosed by or on behalf of a party to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, and includes without limitation: (a) the terms of this Agreement, but not (for the avoidance of doubt) the existence of this Agreement; and (b) in respect of Cotiss, Cotiss' business and marketing plans, business processes, product plans and designs and other non-public technical information proprietary to Cotiss (e.g., any aspect of the Platform Services not disclosed to the general public, the Platform Services user interface design and layout, out-of-the box workflows/automated processes, API, source code, object code, and pricing information). Content will not be considered to be your Confidential Information unless such data, content, material or information is expressly marked or designated as confidential and provided directly to Cotiss personnel by you or your Users.  

Content means any data, content, materials or information (including Personal Information) that you (including your Users and Participating Parties) create within and/or submit to the Platform Services, including from Third-Party Platforms.

Documentation means any Cotiss’ usage guidelines or technical documentation for the Service provided to you.

Effective Date has the meaning given to that term in clause 1.2.

Error means a material failure of the Platform Services to conform with the Specifications that is subject of a Support Request and replicable by Cotiss.

Fair Use Policy means the Cotiss Fair Use Policy, the current version of which is at https://www.cotiss.com/fair-use.

High Risk Activities means activities where use or failure of the Platform Services could lead to death, personal injury, environmental or property damage.

Initial Subscription Term means the Initial Subscription Term identified in the Order (with such term commencing on the Effective Date).

Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and 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.

Knowledge Base means the website available at https://knowledge.cotiss.com/knowledge, or such other site notified by us to you. 

Materials means materials, systems and other resources that you provide to Cotiss in connection with Technical Services.

Order means any Cotiss-provided ordering document, online registration, order description or order confirmation referencing these Terms of Service.

Participating Parties means vendors or suppliers who interact with or provide responses to your Content via the Cotiss platform.

Personal Information has the meaning given to the term 'personal information' or 'personal data' under Privacy Law.

Platform Services means Cotiss’ proprietary SaaS cloud services as identified in the relevant Order, having the core functionality described in the Knowledge Base, as the Knowledge Base may be updated from time to time.

Policies means the Cotiss Privacy Policy, Fair Use Policy, and Support Policy, as each may be amended by Cotiss from time to time.

Privacy Act means the Privacy Act 2020 (including any codes or regulations issued under that Act).

Privacy Breach has the meaning given to that term in the Privacy Act. 

Privacy Law means, in respect of a party, all laws and regulations relating to privacy and/or protection of personal information applicable to that party, and includes the Privacy Act.  

Privacy Policy means the Cotiss Privacy Policy, the current version of which is at https://www.cotiss.com/privacy-policy.

Prohibited Data means any (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation, (b) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented), (c) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (PCI DSS), (d) other information subject to regulation or protection under specific laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations), (e) social security numbers, driver’s license numbers or other government ID numbers or (f) any data similar to the above protected under foreign or domestic laws.

Request for Information means a request made by you to Cotiss in accordance with the Support Policy for information or advice relating to the application of New Releases or use of the Platform Services.

Services means the products and services that are ordered by you pursuant to an Order, and for the avoidance of doubt, includes any services provided to you on a free trial basis.

Software means any Cotiss client software, scripts, apps or other code provided to you by Cotiss for use with the Platform Services.

Specifications means the functional specifications of the Platform Services set out in the Knowledge Base, which may be updated from time to time by Cotiss posting new or revised specifications in the Knowledge Base. 

Subscription Term means the term for your use of the Platform Services, being the Initial Subscription Term, together with any Renewal Term (as defined in clause 9.1).

Support Services means the support services provided, or to be provided, by Cotiss under this Agreement in respect of Requests for Information and Errors, in each case as set out in the Support Policy. Your Support level will be identified in your Order.

Support Policy means the Cotiss Support Policy, the current version of which is at available at https://www.cotiss.com/support-policy.

Technical Services means any training, enablement or other technical services provided, or to be provided, by Cotiss under this Agreement in relation to the Platform Services, as identified in an Order.

Terms of Service means these Cotiss General Terms of Service, the current version of which is available at https://www.cotiss.com/terms-conditions.

Third-Party Platform means any platform, add-on, service, product, app or integration not provided by Cotiss that you elect to integrate or enable for use with the Platform Services, including platforms of Participating Parties.

Usage Data has the meaning given in clause 12.3(a).

User means any individual that you permit or invite to use the Platform Services on your behalf.

Year means a 12 month period starting on the Effective Date or the anniversary of that date.

You or your means both you and the person or organisation on whose behalf you are acting (if any) (for example, the entity set out in the applicable Order).