The Provider is 100Rails Limited, the Customer is defined as the organisation who agrees to the Proposal by clicking the ACCEPT button on the Proposal.
A. Background

Provider has developed a software package that services various industries. The software is a framework and collection of applications, forms, reports and code that assists companies to manage quoting, staffing, jobs, scheduling, health and safety, compliance, equipment and other related aspects of the company.Customer wants Provider to develop and implement the version of software as outlined in the Proposal.Provider agrees to provide 100Rails software together with documentation (the "Provider's Service") to Customer on the terms and conditions set out on this web page and bound to the Proposal.

1. Agreement Definitions
The following terms have the following meanings:

"Customisation"means Provider's fee for development of additional functionality, integrations or enhanced applications which are not developed as part of the Initial Setup."Setup"means the fee for the initial design, build and setup as set out in the Proposal."Proposal"means the combination of these online terms and conditions and the most recent version of the document provided to the customer for the purposes of agreeing on the Provider Service."Commencement Date"means the commencement date listed in the Proposal."Customers Data"means the Customer's own data as input by Customer while using the Provider's Service."Initial Setup”means the work involved in developing and setting up the online cloud mobile software to the Customer’s initial specifications set out in the Proposal.“Initial Term”has the meaning set out in clause 3.1.“Intellectual Property Rights”means any intellectual property rights recognised by law including without limitation protected through legislation (such as patents, copyrights, trade marks) or arising from protection of information as a trade secret, confidential information, and all trade secrets, know-how and other intellectual property developed by Provider.“Provider’s Service”means the service as generally described in the Background paragraph A above.“Renewal Term”has the meaning set out in clause 3.1.“Monthly License”means the monthly fee for the use of Provider’s Service as set out in the Proposal.“Term”means the Initial Term together with any Renewal Terms.

2. Provider Service

During the Term, Provider grants to Customer a non-exclusive and non-transferrable right to use the Provider’s Service.The Provider’s Service is to be made available by the Provider to the Customer using the Internet.Provider may from to time and at its discretion introduce upgrades and updates to the Provider Service at no additional charge provided that such upgrades and updates will not detrimentally affect the core functionality of the Provider’s Service.Provider will provide hours of initial training as per the Proposal at the beginning of the Term and as requested by the customer during the Term with an additional agreed charge rate from the Provider.

3. Term

This Agreement starts on the Commencement Date and continues for a period of 12 months (“Initial Term”). It is automatically renewed by Customer for additional 12-month terms (“Renewal Term”) unless Customer gives Provider 60 days’ notice in writing before the expiry of the then current Term.

4. Fees Structure and Payment Terms

There are two components to the regular fees that Customer must pay to Provider:The Setup, which is payable monthly in advance for the number of months specified in the Proposal beginning on the Commencement Date, and is for the work involved with the licenses and setup of the system.The Monhtly License, payable during the Term monthly in advance as described in and calculated in accordance with the Proposal, beginning on the Commencement Date.The Customer will also pay to the Provider:Any Customisation fees, in each case where development work not included in the Initial Setup (for example, additional data conversions, integrations, forms or reports) is requested by Customer and Provider agrees to carry out that additional development. Customisation fees will be charged at Provider’s then current time and materials rates.Fees for additional training will be charged at Provider’s then current time and materials rates.An additional monthly fee for access to additional functionality that Provider has developed independently of Customer, if Provider offers such functionality to Customer, informs Customer of the additional monthly fee that will be charged, and if Customer agrees to pay the additional monthly fee. Thereafter, the additional functionality will then be deemed included as a part of the Provider Service provided under this Agreement, the Monthly License will be increased to include the additional monthly fee from the date the next Monthly License is payable, and access to the additional functionality will commence from the date the fee is paid.Out-of-pocket expenses incurred by Provider, as a result of a request by Customer and which are in addition to those incurred in the usual course of providing the Provider’s Service, for example travel and accommodation costs for additional site visits unless included in the Proposal.All fees and charges payable by Customer under this Agreement are exclusive of GST. Customer must pay GST (if any) to Provider on the day it pays the fees or charges under this Agreement.In the event that payment in full is not made by Customer within 20 days of the date of an invoice, Provider or its agent may send Customer a written requirement for payment and if payment is not received within 10 days of the date of that notice, Provider may terminate this Agreement and Access to the Data of the Customer pending a successful payment of invoices. A Late fee will be charged to the Customer of 10% of the invoice value if the invoice remains unpaid after the first month, then a further 2% of the outstanding amount will be charged for every month after the first month overdue.Provider may increase its pricing by giving written notice to Customer by giving Customer at least 60 days’ prior notice in writing detailing the price increase and the pricing set out in the Proposal is deemed amended accordingly.

5. Technical Requirements

Customer acknowledges that it must use modern and up-to-date mobile devices, computers and web browsers in order to access the Provider Service.

6. Intellectual Property Rights

As between Customer and Provider, all rights, title and interest, including all Intellectual Property Rights, relating to the Provider Service, including software and documentation (including without limitation all upgrades, updates, improvements, enhancements, modifications and derivative works of any of them) remain with Provider. Nothing in this Agreement grants to either party any ownership or other Intellectual Property Rights of the other party other than as expressly set out in this Agreement.Customer must not:disclose or display the Provider Service to any person other than Customer or Customer’s employees or contractors unless written email approval is obtained from the Provider;attempt to sublicense, modify, adapt, reverse engineer the software used to provide the Provider Service.Subject to clause 7 Customer grants to Provider a worldwide, non-exclusive, royalty-free license to store, process, adapt, transmit, and display Customer Data to the Customer for the purposes of providing the Provider’s Service and fulfilling its obligations under this Agreement.

7. Confidential Information and Privacy

In this clause:“Confidential Information”means information relating to the technology, technical processes, business affairs or finances of the other or of any affiliate of the other or of any suppliers, agents, distributors, licensees or customers of the other where such Confidential Information was received during the period of this Agreement.“Recipient party”means the party receiving such Confidential Information.Each party, in its capacity as recipient party, undertakes and agrees to treat as secret and confidential and not at any time for any reason whatsoever to disclose or permit to be disclosed to any person or otherwise make use of or permit to be made use of any Confidential Information of the other party.The obligations of confidence referred to in this clause do not extend to any Confidential Information which:is or becomes generally available to the public otherwise than by reason of a breach by the recipient party of the provisions of this subclause;is known to the recipient party and is at its free disposal prior to its receipt from the other party;is subsequently disclosed to the recipient party without obligation or confidence by a third party owing no such obligations to the other party in respect of such information;provided that if the recipient party is legally required to disclose any Confidential Information the recipient party will:immediately notify the other party of such requirement;fully co-operate, at the other party’s cost, with all legal actions taken by the other party to avoid or limit such disclosures;if the recipient party cannot avoid such disclosure, the recipient party will;only disclose such portions of the Confidential Information as is legally required;immediately notify the other party of such requirement;fully co-operate, at the other party’s cost, with all legal actions taken by the other party to avoid or limit such disclosures;if the recipient party cannot avoid such disclosure, the recipient party will:only disclose such portions of the Confidential Information as is legally required;use its reasonable endeavours to obtain assurances that such information will be treated as confidential by any person to whom it is disclosed.The obligations of the parties under this clause survive the expiry or the termination of this Agreement for whatever reason.The Service Provider will keep private to the Customers users all Data stored in the service providers software with appropriate security settings limiting access to various security levels and sections of the software as the Customer sees fit and informs the Service Provider with 5 days notice of any user security level changes.

8 Warranties and Liabilities

Provider warrants that:it is legally incorporated under the laws of New Zealand;it has the power and authority to enter into this Agreement;it will use its commercially reasonable efforts to maintain its systems associated with the Provider Service free from viruses and other harmful code; andit will use its reasonable efforts to ensure the Provider Service is performed in a professional, workmanlike manner commensurate with the industry practices in the industry in which Provider operates.Except as is expressly set out above, all terms, conditions, representations and warranties are excluded to the maximum extent permitted by law. In particular (but without limitation), Provider does not warrant that:the Provider Service is error free; orthe use of the Provider Service will be uninterrupted; orThe Provider Service may include or support integration with various third-party services. Provider gives no warranty as to the functionality, accessibility, availability or reliability of such third party services or the integration of the Provider Service with such third party services.The Customer warrants that it has the power and authority to enter into this Agreement.Customer acknowledges that it has carried out appropriate investigations and relied on its own knowledge or independent advice or both in assessing the risk, contingencies and circumstances that could affect its decision to enter into this Agreement and use the Provider Service.Customer acknowledges that in entering into this Agreement:it is acquiring the Provider Service for the purposes of a business; andthe Consumer Guarantees Act 1993 will not apply except as expressly set out in this Agreement.Except to the extent excluded by law, Provider excludes all liability to Customer (whether by damages or otherwise) for any consequential, economic or indirect loss or damage arising out of this Agreement or the Provider Service or in connection with either of them. This exclusion applies whether Provider’s liability arises in contract, tort (including negligence) or otherwise.Subject to clause 8.9, Provider’s liability to Customer or breach of any term of this Agreement or arising out of the provision of the Provider Service and whether in contract, tort or otherwise is limited to the Staff Workpack received by Provider for provision of the Provider Service in the 12 months preceding the date on which Customer’s claim arose.Provider is not responsible for any failure to provide the Provider Service where such failure is caused, or contributed to, by an event outside Provider’s reasonable control.Provider does not provide any guarantee and has no liability to Customer in respect of the communications and computer links between Customer and Provider allowing access to the Provider Service.

9. Intellectual property indemnities

Subject to clauses 9.2 to 9.3, Provider indemnifies Customer against liability under any final judgment in proceedings brought by a third party against Customer determining that Customer’s use Provider’s Service breaches the intellectual property rights of a third party.Provider is not liable to indemnify Customer unless Customer:notifies Provider in writing as soon as practicable of any infringement or alleged infringement; andgives Provider the option to conduct the defence of such a claim, including negotiations for settlement or compromise; andprovides Provider with reasonable assistance in conducting the defence of such a claim, at Provider’s expense; andpermits Provider to modify, alter or substitute Provider’s Service, at the Provider’s expense, to render the Provider’s Service non-infringing but provided that the Provider’s Service continues to provide similar functionality; andauthorises Provider in consultation with Customer to procure for Customer the authority to continue to use and possession of Provider’s Service.Provider is not liable to indemnify Customer if the infringement, suspected infringement or alleged infringement arises from:use of the Provider’s Service in a manner or for a purpose or in a combination by any means and in any form with computer software or equipment other than that for which it was developed; ormodification or alteration of the Provider’s Service without the prior consent in writing of Provider; orsoftware, data information or equipment provided to Provider by Customer the use or possession of which infringes the rights of third parties.Customer agrees to indemnify Provider against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging such infringement if:the claim arises from an event specified in clause 9.3; orthe ability of Provider to defend the claim has been prejudiced by the failure of the Customer to comply with the provisions in clause 9.2; orinformation provided to Provider by Customer to enable Provider to develop the Provider’s Service breaches any intellectual or property rights of a third party.

10 Termination

10.1 Either party may terminate this Agreement by giving the other party 14 days’ notice in writing to the other party if a party materially breaches any clause of this Agreement and such breach is not remedied within 14 days of written notice by the other party to the first party to remedy that breach.

10.2 Provider may terminate this Agreement by giving not less than 30 days’ notice to Customer.

10.3 Customer may terminate this Agreement:

(a) Subject to clause 10.5, by giving not less than 90 days’ notice to Provider.

10.4 On termination or expiry of this Agreement:

(a) Customer must immediately cease to use the Provider Service and must immediately, upon request of Provider, return to Provider any end user documentation or other materials associated with Customer’s use of the Provider Service;

(b) the Provider will KEEP A COPY of the Customer’s Data For the Customer for a period of 12 months.

(c) If the Customer cannot be contacted then the Provider will store a copy of the Customer’s Data for a period of 12 months but will then delete it after that.

10.5 If this Agreement is terminated pursuant to clause 10.3(1), then Customer shall pay Provider an early termination fee. The early termination fee shall be calculated by:

(a) Taking the CURRENT Monthly License fee and multiplying it by three (3)

(b) This amount will be invoiced and must be paid immediately or access to the data in the system will immediately cease.

10.6 Termination or expiry of this Agreement is without prejudice to any obligations or rights of either party approved prior to such termination or expiry, and does not affect any provision of this Agreement which is intended to come into effect on or continue in effect after such termination.

11 Force Majeure

Neither party will be responsible for any act, omission or failure to fulfil its obligations under this Agreement if such act, omission or failure arises from any cause reasonably beyond its control (“Force Majeure Event”) which includes floods, earthquakes and other acts of God but excludes any industrial actions or business trading risk.The party who cannot carry out its obligations under this Agreement must give the other Party notice as soon as practicable of the cause and, insofar as it is known, the probable extent to which the party giving the notice will be unable to perform or will be delayed in performing its obligations under this Agreement.On the issue of notice of a Force Majeure Event, the obligations of the party giving the notice will be suspended insofar as that party is prevented during the continuance of such cause to carry out its obligations under this Agreement.The party giving notice which is affected by the Force Majeure Event must take all reasonable steps to mitigate the effects of, and eliminate, the intervening event and must resume performance of the supply of Services as promptly as possible.Should the Force Majeure Event continue for a period exceeding twenty (20) Business Days, then the party being the recipient of the Force Majeure Event notice may cancel this Agreement by giving written notice to the other party.Where a Force Majeure Event gives rise to the need for a variation to the terms of this Agreement, it will be recorded as a Variation.

12 General

Provider may assign its rights and obligations under this Agreement with or without Customer’s consent. Customer must agree to any such assignment if requested to do so.Customer may not assign its rights under this Agreement without the prior consent of Provider, to be given at its sole discretion.This Agreement is governed by the laws of New Zealand and the parties agree to submit to the non-exclusive jurisdiction of the Courts of New Zealand.In the event that any one or more of the provisions in this Agreement is declared invalid by any Court of competent jurisdiction, this Agreement will be read as if such provision had not been inserted.This Agreement constitutes the entire agreement between the parties relating to its subject matter and replaces or prior agreements or undertakings between them. Each party confirms that on entering into this Agreement it has not relied upon any statement, warranty or other representation made or information supplied by or on behalf of the other party.No right under this Agreement will be deemed to be waived except by notice in writing signed by each party. A waiver does not prejudice rights in respect of any subsequent breach.The obligations set out under clauses 6, 7 and 9 will continue in force notwithstanding termination or expiry of this Agreement.References to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended, re-enacted or consolidated and to all statutory instruments made pursuant to it.Words denoting the singular will include the plural and vice versa.The words “in particular”, “include” and “including” will not be construed as terms of limitation. The words “day” and “month” mean “calendar day” and “calendar month” unless otherwise stated. The words “writing” and “written” mean “in documented form”, whether electronic or hard copy, unless otherwise stated. The symbol “$” means New Zealand dollars.The headings in this Agreement are for convenience only and will not affect the interpretation of any provision of this Agreement.References to this Agreement or any other document will include any permitted and authorised variation, amendment or supplement to such document.These terms form part of a full agreement with Customer that has accepted the Proposal via an Email or Acceptance link within a Xero proposal or invoice.