1 APPLICATION
1.1 These Terms and the PSA apply to all SonaSafe Products and/or Services supplied by SonaSafe to the Client.
1.2 Where the SonaSafe and the Client have entered into a PSA (as defined under clause 2.1 below), these Terms and the terms of the PSA will apply. In the event of any inconsistency between these terms and the terms of the PSA, the terms set out in the PSA will prevail.
1.3 Any additional or special terms will only apply if they are agreed in writing and signed by both parties.
1.4 Any terms and conditions of a Client will only apply if they are agreed in writing by SonaSafe, and in the event of any inconsistency between these Terms and the terms and conditions of the Client, these Terms will prevail.
2 DEFINITIONS
2.1 In these Terms, unless the context otherwise requires:
(a) Agreement means any written agreement between SonaSafe and the Client, including (without limitation) the PSA;
(b) Business Day means a day other than a Saturday, Sunday or public holiday in New Zealand;
(c) Client means the client of SonaSafe who is purchasing the SonaSafe Products or engaging SonaSafe for the provision of Services;
(d) Client Data means any data that:
(i) is provided by, or on behalf of, the Client for processing by SonaSafe or for the purpose of providing the Services, deliverables and/or access to the SonaSafe Dashboard; and
(ii) relates to the Client’s business and is generated in the course of receiving the Services, deliverables and/or access to the SonaSafe Dashboard;
(e) Client Responsibilities means the responsibilities of the Client as specified in these Terms, the Proposal and/orPSA that the Client is required to carry out to facilitate SonaSafe’s performance of the Services;
(f) Confidential Information means all information of a confidential nature, in any form whether tangible or not and whether visible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into the PSA and includes, without limitation, any information (including Personal Information) and material concerning the contractual or commercial dealings, financial details, products or services (current or proposed), customers, employees, internal policy or other proprietary information or material of a party or dealings under the PSA;
(g) Control means with respect to any entity or person, possession of the power, directly or indirectly, to direct or cause the direction of the management policies of such entity or person, whether through legal and/or beneficial ownership of shares or otherwise;
(h) Consequential Loss means any loss, damage, cost, or expense that does not arise directly from a breach of theseTerms but occurs as a secondary or indirect result of that breach, including, without limitation:
(i) loss of profits, revenue, or business;
(ii) loss of anticipated savings;
(iii) loss of use, production, or opportunity;
(iv) loss of reputation or goodwill; and
(v) loss of data or information.
(i) Covered Environment means the specific area(s) of the Site and/or the specific area(s) around the Client’s vehicles, plant or equipment, intended to be covered by the SonaSafe System;(j) Documentation means the specifications, operating manuals, user instruction manuals, technical literature, and all other materials relating to the installation, use, maintenance, support and/or servicing of the relevant SonaSafe Products and/or Services;
(k) End User means the Client’s personnel, agents and subcontractors who are granted access to the SonaSafe Products by the Client;
(l) Fees means the amounts payable by the Client to SonaSafe for the provision of the relevant SonaSafe Products and/or Services;
(m) Force Majeure Event means any of the following events:
(i) epidemic or pandemic;
(vi) act of terrorism, war (either declared or not declared), civil disorders, revolution or act of public enemies;
(vii) flood, storm, tempest, earthquake, fire, explosion or other act of God;
(viii) act or restraint of any national or governmental authority; or
(ix) strike or lock-out, and any other event or factor (similar to the events described above) beyond the reasonable control of the party adversely affected, which prevents, delays or hinders the performance by either or both parties of their obligations under these Terms;
(n) Generated Data means new data other than the ClientData generated or derived as part of providing the SonaSafe Products and/orServices;
(o) GST means goods and services tax payable under the Goods and Services Tax Act 1985;
(p) HSAW means the Health and Safety at Work Act 2015, associated regulations and any relevant codes of practice, as may be updated from time to time;
(q) Insolvency Event means where
(i) the Client is or becomes or is deemed to be insolvent or bankrupt;
(ii) the Client goes into receivership or has a receiver, administrator, trustee and/or manager (including a statutory manager)or any analogous official appointed in respect of all or any of the Client’s property or assets;
(iii) any resolution is passed by the Client or any other corporate body for its dissolution or liquidation (except for the purposes of a solvent reconstruction), or a distress, attachment, execution or other legal process in respect of indebtedness of the Client is levied or enforced on the Client and is not discharged or stayed within 15 Business Days; or
(iv) any other insolvency event or proceedings analogous to any of the foregoing occurs in relation to the Client;
(r) IP Rights means any registered or unregistered, intellectual property including any and all rights to and interests in, or protecting, any and all industrial and intellectual property of any kind, whether or not in a material form, including but not limited to copyrights, patents, trademarks, brandnames, designs, (or equivalent in any jurisdiction), any processes, formulae, designs, reports, drawings, specifications, software, blue prints, know-how, experiences, characteristics, inventions, discoveries, improvements and research data, in relation to any industry;
(s) Minimum Standards means the minimum technical and functional standards of hardware and software specified by SonaSafe to enable effective performance of the Services, as set out in the Documentation, and as may be updated or otherwise notified by SonaSafe to the Client from time to time;
(t) Personal Information means “PersonalInformation” or “Personal Data” as defined under the Privacy Act 2020, andwhich the SonaSafe has received or has access to;
(u) PPSA means the Personal PropertySecurities Act 1999;(v) PPSR means the Personal Property Securities Register established under the PPSA;
(w) PSA means the Products and Services Agreement between SonaSafe and the Client setting out the specific SonaSafe Products the Client will purchase from SonaSafe and/or Services that the Client will engage SonaSafe for, as well as the terms on which SonaSafe will provide ongoing support to the Client, including the Service Level Indicators;
(x) Proposal means any proposal, quotation, offer, statement of work, scope of work or other document submitted by SonaSafe to the Client describing the SonaSafe Products and/or Services to be supplied, including any specifications, proposed pricing, invoicing, payment terms, deliverables, timelines or other related information;
(y) Quote means the statement issued by SonaSafe specifying the price and scope for the supply of the SonaSafe Products and/orServices. A Quote will be provided to the Client with the Proposal and/or PSA.
(z) Related Company has the same meaning as in section2(3) of the Companies Act 1993 (read as if the expression “company” in that subsection included anybody corporate of any jurisdiction);(aa) Related Party in respect of a person (first person) means, a Related Company of the first person, and any person that Controls or has a direct or indirect equity or ownership interest in the first person, is Controlled or directly or indirectly part owned by the first person, or is Controlled or part owned by the same person that Controls or directly or indirectly part owns the first person, and includes, if the first person is an individual, any spouse, partner or relative of the first person or any relative of the spouse or partner of the first person;
(bb) Security Interest has the meaning given to that term in the PPSA;
(cc) Service Level Indicators means the specific service level indicators set out in the PSA;
(dd) Services means the services SonaSafe will provide to the Client, including installation and Support Services;
(ee) Site means the Client’s Site;
(ff) SonaSafe Dashboard means SonaSafe’s software-as-a-service, cloud, or another hosted platform;
(gg) SonaSafe Products means the hardware, software and equipment, including the SonaSafe System and the SonaSafe Dashboard;
(hh) SonaSafe System means the advanced machine operator awareness system which is fitted to the Client’s vehicles and other plant and equipment, and which includes the SonaSafe Dashboard;
(ii) Support Services means the support services provided by SonaSafe as part of the Services in accordance with the PSA;
(jj) Terms means these SonaSafe Terms and Conditions, as may be updated by SonaSafe from time to time;
(kk) Third Party Applications means third party hardware, software, or other accessories that may be required to facilitate the Client’s use of the SonaSafe Products;
(ll) Trial means the temporary, limited or pilot access to or use of the SonaSafe Products and/or Services for evaluation, testing or assessment purposes;
(mm) Trial Commencement Date means the date on which a Trial begins, being the date on which the SonaSafe Equipment is installed at the Site for Trial purposes;
(nn) Trial Term means the period of time that theTrial is active for the Client’s assessment of the SonaSafe Products and/orServices, commencing on the Trial Commencement Date and continuing until the end date specified in the Proposal or the date on which SonaSafe terminates the Trial by written notice to theClient; and
(oo) Workers means SonaSafe’s personnel, agents and subcontractors engaged in the performance of the Services.
3 INTERPRETATION
3.1 The following provisions shall apply to theseTerms and any Agreement:
(a) a reference to an Agreement or another instrument includes any variation or replacement of either of them;
(b) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;(c) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day; and
(d) If any obligation under an Agreement is required to be performed on a day other than a Business Day, that obligation is to be performed on the next Business Day.
4 PROPOSAL
4.1 SonaSafe will issue the Client with aProposal, including (where applicable) any Trial arrangements, including the anticipated Trial Commencement Date, the Trial Term and a Quote. Upon the Client’s acceptance of the Proposal, the Proposal will form a contract and will be governed by these Terms.
4.2 SonaSafe will deliver to, and make accessible for the Client, the SonaSafe Products and/or Services by the delivery date specified in the Proposal.
4.3 For the avoidance of doubt, where the Proposal includes a Trial, the parties’ rights and obligations during the Trial are governed solely by the Proposal and these Terms. The continued use of the SonaSafe Products following the Trial will be on the basis set out in clause
5 TRIAL
5.1 The Trial Term will be indicated on the Proposal. Any Trial is carried out for the Client’s limited use within its business for the purpose of evaluating, testing and assessing the SonaSafe Products and Services during the Trial Term. The Client acknowledges that theTrial is not a full commercial deployment and is provided on a temporary and evaluative basis only.
5.2 For the purposes of the Trial, the Client will purchase, and SonaSafe will arrange for SonaSafe Products to be installed at the Site on a temporary basis. The Client will give SonaSafe and its Workers access to the Site for the Trial installation. SonaSafe will issue an invoice to the Client for the Trial installation and the SonaSafe Products provided, and the Client shall pay the invoice by the 20th day of the month following the month in which it is issued.
5.3 SonaSafe grants the client a non-exclusive, non-transferable, revocable and royalty-free licence to use SonaSafe’s IP Rights solely for the purposes of the Trial. All of SonaSafe’s IP Rights remain the sole property of SonaSafe (or its licensors), and this licence will automatically terminate on expiry or termination of the Trial Term.
5.4 The Client must promptly return or delete all Trial materials on request or at the end of the Trial.
5.5 The Trial is provided “as is” and without any warranties, representations or guarantees. To the maximum extent permitted bylaw, SonaSafe excludes all liability arising from or in connection with theTrial.
5.6 If, at any time during the Trial Term, theClient notifies SonaSafe in writing that it does not wish to proceed:
(a) unless the parties agree otherwise, the SonaSafe Products will be returned to SonaSafe;
(b) the Client must allow SonaSafe and/or its contractors reasonable access to the Site to remove the SonaSafe Products;
(c) the Client must ensure the SonaSafe Products are returned in substantially the same condition as supplied;
(d) upon the SonaSafe Products being returned (or removed) to SonaSafe’s satisfaction, SonaSafe will refund to the Client the amounts paid for the hardware components of the SonaSafe Products, less any reasonable costs of return, removal, decommissioning, or damage; and
(e) for clarity, any fees paid for Services(including installation, training, configuration or support) are non-refundable.
5.7 The Client agrees that:
(a) risk in the SonaSafe Products passes to theClient on delivery and remains with the Client throughout the Trial Term until the SonaSafe Products are returned to SonaSafe to its nominated location or removed by SonaSafe; and
(b) the refund described in clause 1.6 is the Client’s sole and exclusive remedy in respect of termination of the Trial and the SonaSafe Products, and the Client is not entitled to any further claims, damages or compensation.
6 PRODUCTS AND SERVICES AGREEMENT
6.1 If the Client wishes to continue using the SonaSafe Products following the Trial, the specific terms on which the Client may continue using the SonaSafe Products and engage SonaSafe for the Services will be set out in the PSA.
6.2 These Terms apply to the PSA.
6.3 If there is any inconsistency between theseTerms and the specific terms of the PSA, those specific terms of the PSA will prevail.
7 TITLE AND RISK
7.1 Where the Client has entered into a PSA, theClient agrees that:
(a) risk in the SonaSafe Products passes to the Client on the date and at the time of delivery of the SonaSafe Products at the Site. The Client will be responsible for insuring the SonaSafe Products on delivery; and
(b) title to the SonaSafe Products passes to the Client on payment fort hose SonaSafe Products;
7.2 The parties agree that SonaSafe retains a SecurityInterest in the SonaSafe Products until full payment is received. The Client acknowledges that this clause creates a Security Interest for the purposes of the PPSA and agrees that SonaSafe may register, at the Client’s cost, a financing statement on the PPSR to protect its interest. The Client will do all things reasonably required by SonaSafe to perfect and maintain the Security Interest.
7.3 The Client must not change its name, company number or NZBN or other details required on the PPSR, without first notifying SonaSafe in writing.
7.4 The Client acknowledges and agrees to waive its right to receive any notice under the PPSA (including notice of a verification statement under section 145) unless the notice is required by the PPSA and cannot be excluded. To the fullest extent permitted by the PPSA, the parties agree to contract out of sections 114(1)(a), 116, 120(2), 121, 122,125, 126, 127, 129, 131, 133 and 134 of the PPSA.
8 SONASAFE'S OBLIGATIONS
8.1 SonaSafe will:
(a) perform the Services described in any Proposal and/or PSA with due skill, care and diligence, in accordance with these Terms and all applicable laws and industry standards;
(b) ensure that all personnel engaged in the performance of the services are suitably qualified, experienced and supervised;
(c) when attending the Site, comply with, and procure that its Workers comply with, all reasonable and notified Site rules, and theClient’s health and safety requirements and security procedures;
(d) provide the Services in accordance with any applicable Service Level Indicators; and
(e) use reasonable endeavours to carry out the Services so as to avoid unnecessary disruption to the Client’s operations.
9 THE CLIENTS OBLIGATIONS
9.1 The Client will:
(a) give SonaSafe all necessary cooperation and assistance in connection with these Terms, including timely access to all information, Client Data, personnel, systems, and the Site as may reasonably be required by SonaSafe to enable it to perform the Services;
(b) fulfil all of the Client Responsibilities and in compliance with all applicable laws and regulations;
(c) ensure that each End User possesses reasonable level of relevant knowledge and experience to use the Services and the SonaSafe System effectively;
(d) procure that each End User, uses the SonaSafe Products and Services in accordance with the Documentation and these Terms;
(e) be solely responsible for the accuracy, quality, integrity, and legality of the Client Data, and the means by which the Client acquires the Client Data;
(f) use all reasonable efforts to prevent unauthorised access to or use of the SonaSafe Products, the Services and the SonaSafe Dashboard, and notify SonaSafe promptly of any unauthorised access or use;
(g) implement and maintain IT security measures that meet the Minimum Standards. The Minimum Standards may include, without limitation, antivirus protection, firewalls, password policies, encryption, access controls, and multi-factor authentication. The Client must ensure ongoing compliance with such standards as a condition of receiving theServices;
(h) where applicable, ensure that any parameters set by SonaSafe in respect of which the Fees are determined are not exceeded;
(i) ensure that each End User is either an employee or agent of the Client, that each End User is assigned with individual and unique access credentials, and that such access credentials are not shared between individuals. The Client shall be liable for any unauthorised use exceeding the permitted number of End Users and may be required to pay additional Fees for such use. A reduction in End Users shall not reduce or otherwise affect the Client’s obligations in respect of any Fees or other amounts payable under these Terms and the PSA, unless agreed in writing by the parties;
(j) promptly disable any login account if SonaSafe discovers (through undertaking any monitoring and audits or otherwise) that any login details have been provided to any party that is not Client or an EndUser;
(k) not request, permit or authorise anyone other than SonaSafe or an entity that SonaSafe has approved in writing, to provide any services similar to the Services in connection with the SonaSafe Products;
(l) carry out all other responsibilities of the Client set out in these Terms in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, SonaSafe may adjust any agreed timetable or delivery schedule as reasonably necessary;
(m) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the SonaSafe Dashboard, and for all problems, conditions, delays, delivery failures and all other loss or damage caused by or relating to the Client’s network connections or telecommunications link; and
(n) be responsible for all acts and omissions of its End Users as if those acts and omissions were the Client’s. To the maximum extent permitted by law, the Client will indemnify SonaSafe against all costs, losses, damages, and expenses arising out of or in connection with each End Users’ use of the SonaSafe Products.
10 CLIENT RESPONSIBILITIES
10.1 In providing the Services, SonaSafe may require assistance from the Client and access to the Site. The Client will:
(a) carry out the Client Responsibilities to an adequate standard, and in a timely, competent, efficient, and professional manner, using appropriate care and skill;
(b) ensure that SonaSafe and its Workers have:
(i) reasonable access to the Client’s Site, network, vehicles and machines; and
(ii) reasonable access to all electrical connection points to any machine that is to be fitted to any components of the SonaSafeSystem, including ground, ignition, handbrake (if applicable), and reverse (if applicable), as required by SonaSafe;
(c) ensure, so far as reasonably practicable, the health and safety of the Workers attending the Client's Site for the purposes of providing the Services; and
(d) comply with any reasonable instructions specified by SonaSafe to facilitate its performance of the Services;
10.2 If SonaSafe fails to provide, or is delayed in providing, any Services and/or access to the SonaSafe System, due to:
(a) the Client’s failure to comply with clause 1.1; and/or
(b) any latent defect in any of the Services that is not the fault of SonaSafe, then:
(c) SonaSafe will not be liable for any failure or delay in providing the Services; and
(d) the parties will use reasonable endeavours to agree an extension of time to any timetable set out in the PSA.
10.3 The Client will provide at its cost, any specialist equipment such as an elevated work platform (EWP) if requested by SonaSafe.
11 THIRD PARTY APPLICATIONS
11.1 The Client acknowledges that certain Servicesand/or the SonaSafe System rely on or incorporate Third Party Applications.SonaSafe is the sub-licensor of the Third Party Applications and grants the Client a non-exclusive, non-transferable licence to use the Third PartyApplications solely for the Client’s internal business purposes and in accordance with these Terms and the applicable Third Party Applications licence agreement. The Client will obtain rights to use such Third Party Applications solely through the sub licence granted by SonaSafe under these Terms and not directly from the third party licensor. The Client agrees to comply with all applicable licence terms and conditions governing the use of such Third Party Applications.
11.2 All Services provided by SonaSafe in relation to the relevant Third Party Applications are strictly limited to the account and licence provisions granted by the applicable third party licensor. TheClient acknowledges that SonaSafe’s ability to deliver the Services is subject to, and constrained by, the scope, terms, and limitations of the third party licensor’s account and licence rights for such Software.
11.3 SonaSafe shall remain responsible for ensuring that the Third Party Applications remains fully licensed and available for theClient’s use under the terms of the applicable software licence agreement. TheClient shall immediately notify SonaSafe if it becomes aware of any issues affecting the Third Party Application’s availability or functionality.1.4 The Client agrees to promptly install, orallow SonaSafe to install, any updates, patches, or upgrades to Third PartyApplications as may be required by the applicable third party licensor or as reasonably requested by SonaSafe to ensure the continued functionality, compatibility, performance, or security of the Services. SonaSafe shall not be liable for any failure or degradation in the Services arising from the Client’s failure to install such updates in a timely manner. 1.5 SonaSafe will provide reasonable assistance to the Client in relation to the configuration or integration of Third PartyApplications that is necessary for the operation of the Services. However, SonaSafe does not guarantee compatibility or functionality of any Third PartyApplications and is not responsible for ongoing support unless otherwise stated as being included in the Services.1.6 The Client acknowledges that Third PartyApplications licensors may update, modify, or discontinue their products at anytime. SonaSafe shall not be liable for any impact such changes may have on theServices.1.7 SonaSafe makes no warranties or representations regarding the performance, security, or availability of any ThirdParty Applications and shall not be liable for any loss or damage arising from the failure, malfunction, or discontinuation of such software.
11.4 The Client agrees to promptly install, or allow SonaSafe to install, any updates, patches, or upgrades to Third PartyApplications as may be required by the applicable third party licensor or as reasonably requested by SonaSafe to ensure the continued functionality, compatibility, performance, or security of the Services. SonaSafe shall not be liable for any failure or degradation in the Services arising from the Client’s failure to install such updates in a timely manner.
11.5 SonaSafe will provide reasonable assistance to the Client in relation to the configuration or integration of Third PartyApplications that is necessary for the operation of the Services. However, SonaSafe does not guarantee compatibility or functionality of any Third PartyApplications and is not responsible for ongoing support unless otherwise stated as being included in the Services.
11.6 The Client acknowledges that Third PartyApplications licensors may update, modify, or discontinue their products at anytime. SonaSafe shall not be liable for any impact such changes may have on theServices.
11.7 SonaSafe makes no warranties or representations regarding the performance, security, or availability of any ThirdParty Applications and shall not be liable for any loss or damage arising from the failure, malfunction, or discontinuation of such software.
12 SERVICE LIMITATIONS
12.1 SonaSafe shall have no obligation to provideServices in connection with:
(a) failures caused by the Client’s misuse, negligence, or unauthorised modification of the SonaSafe Products;
(b) the Client’s failure to carry out the Client Responsibilities;
(c) damage resulting from power surges, environmental conditions, or acts of nature;
(d) software or hardware not supplied, supported, or approved by SonaSafe; or
(e) network or internet connectivity issues outside SonaSafe’s reasonable control.
12.2 SonaSafe will use reasonable efforts to meetresponse and resolution times as outlined in the PSA. However, such times are estimates only and are not guaranteed, unless expressly stated as binding in the PSA.
12.3 SonaSafe reserves the right to carry out routine maintenance during scheduled maintenance windows, which may result in temporary unavailability of the Services. SonaSafe will use reasonable efforts to notify the Client in advance of any such maintenance.
13 PRICES
13.1 The estimated prices for SonaSafe Products andServices will be as set out in the Quote. Estimated prices are subject to variation based on a further review of the Site and the Covered Environment.
13.2 SonaSafe may withdraw a Quote before it is accepted. A Quote will lapse, without notice, 20 Business Days after it is given.
14 FEES AND PAYMENTS
14.1 The Client will pay the price for the SonaSafe Products and any Fees, any agreed disbursements, and any other agreed charges to SonaSafe in accordance with the relevant Quote.
14.2 Unless SonaSafe has previously approved a credit application for the Client’s purchase of the SonaSafe Products, the Client must pay a 50%deposit for the SonaSafe Products before delivery or installation and the balance immediately without deduction or set-off upon delivery or installation.
14.3 Where SonaSafe has approved the Client’s credit application for the SonaSafe Products, the Client must pay for the SonaSafe Products in full, without deduction or set off, by the 20th day of the month following the date of invoice.
14.4 The Client must pay each invoice for the Fees and any reimbursable expenses in full, without deduction or set off, and in the manner and at the times specified in the relevant Quote, or, if not specified, by the 20th of the month following the month in which the invoice is issued. The Client will reimburse SonaSafe for all actual and reasonable travel and accommodation expenses incurred in connection with theServices, to the extent such expenses are specified in the Quote. SonaSafe will provide receipts or other evidence of such expenses upon the Client’s request.14.5 If Client disputes any invoice, it will give SonaSafe notice of that dispute within 10 Business Days of receipt of the relevant invoice but will otherwise pay the undisputed part of the invoice in accordance with the required timeframes in clauses 14.3 and 14.4. Any disputed amount will be referred for resolution in accordance with clause 23.
14.6 Subject to clause 14.5, If the Client fails to pay any amounts due, SonaSafe may without prejudice to its other rights or remedies under these Terms or at law:
(a) charge interest on that amount owing from the due date until the date of actual payment at 5% per annum over the base overdraft rate charged by SonaSafe’s principal bankers from time to time and will be payable on demand; and/or
(b) suspend the provision of the Service, access to the SonaSafe System under any PSA and/or further delivery of the SonaSafe Products, all without liability to the Client.
14.7 SonaSafe may, at each anniversary of the date of these Terms or PSA (as applicable), review the Fees payable by the Client toSonaSafe. SonaSafe may, at its discretion, adjust the Fees following such review, and any such adjustment will apply automatically from the anniversary date of the PSA. The Client agrees to pay the Fees as adjusted.
14.8 SonaSafe may accept and apply payments from the Client in respect of any indebtedness at SonaSafe’s discretion.
14.9 If the Client has been approved for credit, all payments shall become immediately due and payable if SonaSafe reasonably believes that the information in the Client’s credit application is not corrector no longer correct, or if the Client defaults under any agreement with SonaSafe, suffers an InsolvencyEvent or makes or attempt to make an arrangement or composition with the Client’s creditors.
15 CANCELLATION
15.1 The Client may not cancel an order for SonaSafe Products or Services without SonaSafe’s written consent. As a condition of giving consent, SonaSafe may require reimbursement of any costs incurred by SonaSafe as a result of the Client’s order and cancellation.
15.2 SonaSafe may cancel or suspend all or part of an order for SonaSafe Products or Services without liability to the Client, in any of the circumstances set out in clause 14.9 or if fulfilling the order becomes impractical or uneconomic due to any cause beyond SonaSafe’s control.
16 HEALTH AND SAFETY
16.1 The Client must ensure that the Site is safe and complies with all applicable provisions of the HSAW before granting SonaSafe and its Workers access to perform the Services.
16.2 The Client must promptly inform SonaSafe of any known hazards, risks or Site-specific health and safety requirements that may affect SonaSafe personnel while on the Client’s premises.
16.3 The Client acknowledges and agrees that it isa “person conducting a business or undertaking” (PCBU) for the purposes of the HSAW in respect of its Site, operations and work environment. The Client accepts primary responsibility for ensuring, so far as is reasonably practicable, the health and safety of all persons(including the Workers) while they are on the Client’s premises or otherwise engaged in work under the Client’s management or control.
16.4 The Client must, so far as is reasonably practicable, consult, cooperate and coordinate with SonaSafe in respect of health and safety matters relating to the Services and the presence of the Workers at the Site.
16.5 SonaSafe will ensure, and procure that itsWorkers, take all reasonable steps to comply with the Client’s health and safety requirements.
16.6 The Client must promptly notify SonaSafe of any accident, near miss, incident, or unsafe condition affecting or involving the Workers while on the Site.
17 WARRANTIES
17.1 SonaSafe warrants that, unless otherwise agreed in writing:
(a) the SonaSafe Products will be free from defects in materials and workmanship for a period of 12 months from the date the SonaSafe Products are delivered to the Client at the Site, provided that the Client notifies SonaSafe in writing of any defect within 10 Business Days of discovering the defect (time being of the essence); and
(b) to the best of its knowledge and belief, that the Client’s access to the SonaSafe System, does not, and will not, infringe any third party IP Rights.
17.2 SonaSafe will, at its option, replace or, at its option, repair the SonaSafe Products supplied to the Client which are accepted to be within the terms of the warranty in this clause 17.
17.3 SonaSafe will not be liable under a warranty for any attempt to install, calibrate, maintain or repair defective SonaSafe Products that have been made by any person other than SonaSafe or any of its Workers. Any replacements or repairs necessitated by:
(a) inadequate or incorrect maintenance, calibration or storage;
(b) use of unauthorized spare parts;
(c) physical misuse or abuse or use in unsuitable environmental conditions;
(d) incorrect or negligent use of equipment to which the SonaSafe Products are installed;
(e) any other condition proven to be caused by factors outside SonaSafe’s control;
(f) if the warranty seal has been tampered with, or broken; or
(g) a failure of the Third-Party Software and/or the failure of the Client to satisfy its Client Responsibilities, shall void the warranty.
17.4 The decision as to whether the warranty claim is accepted or not is at SonaSafe’s reasonable discretion.
17.5 To the fullest extent permitted by law:
(a) SonaSafe’s liability under these Terms is in substitution for, and to the exclusion of, all other warranties, representations, conditions or obligations imposed or implied by law, statute or otherwise in relation to the SonaSafe Products; and
(b) all liability for any indirect, special or Consequential Loss or damage of any kind or for liability arising out of or in connection with the supply of the Services, is expressly excluded.
18 LIMITATION OF LIABILITY
18.1 TheClient accepts that the SonaSafe System does not constitute a guarantee or assurance, and is not intended to be, nor can it be relied upon as, a guarantee or assurance of the personal safety of any person, or the prevention of damage toor loss of any tangible property in which the SonaSafe System is operated. Ensuring the safety of any people or property in or in the vicinity of, theCovered Environment is ultimately the responsibility of the Client. SonaSafe does not assume any of the Client’s legal health and safety responsibilities as a consequence of the provision of the Services, the SonaSafe Products and/or the SonaSafe System.
1.2 SonaSafewill not be liable to Client under the law of tort, contract or otherwise forany:
(a) indirect or Consequential Loss arising out of, or in connection with, these Terms and the provision of the SonaSafe Products and/or Services; and
(b) loss of revenue, loss or profit, data loss, liquidated damages, penalties, fines, implementation delays, arising out of, or in connection with, these Terms and the provision of the SonaSafe Products and/or Services. 1
18.3 SonaSafe’s total liability to the Client in respect of all losses suffered or incurred will not exceed the Fees paid and/or payable by the Client to SonaSafe.
19 CONFIDENTIALITY AND PRIVACY
19.1 Each party must keep any Confidential Information provided by the other confidential and ensure that, without the other's prior written consent, Confidential Information provided by the other party is not disclosed except as expressly authorised in these Terms.
19.2 Eachparty must take all reasonable steps necessary or desirable in order tosafeguard the confidentiality of the Confidential Information provided by theother.
19.3 Neither party may use the Confidential Information provided bythe other except for the purpose(s) that the Confidential Information wasprovided.
19.4 Eachparty may disclose the Confidential Information provided by the other to itsofficers, employees, agents or advisers who:
(a) are necessary to enable the performance of theServices under these Terms;
(b) are advised of the confidential nature of theConfidential Information; and
(c) except in the case of officers or employees approved by the other, sign an undertaking acknowledging the confidentiality requirements of these Terms.
19.5 Each party acknowledges that damages may not be sufficient remedy for the providing party for any breach of the provisions of these Terms and accordingly the other party is entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach by it, in addition to any other remedies available to the other party at law or in equity.
19.6 Tothe extent that any of the Client Data constitutes Personal Information asdefined in section 7 of the Privacy Act 2020, the Client authorises SonaSafe tocollect, use, store, disclose and otherwise process such Personal Informationto the extent reasonably required to provide the Services, perform itsobligations under these Terms, comply with applicable law, and exercise itslegalrights.
19.7 SonaSafe will process the Personal Information in accordance withits privacy policy, available at PrivacyPolicy
20 LICENSING AND INTELLECTUAL PROPERTY
20.1 The Client is granted a non-exclusive, non-transferable, revocable licence to use the SonaSafe Products, including the SonaSafe Dashboard for the purposes of receiving the Services.
20.2 The Client will not, and will not allow its End Users or other third parties under Client’s control to:
(a) provide access to the SonaSafe Dashboard to any third party through operation of a bureau or like service;
(b) copy, modify, duplicate, create a derivative work from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the SonaSafe Dashboard and/or Documentation (as applicable) in any form or media or by any means;
(c) attempt to reverse engineer, decompile, transfer, disassemble, or otherwise attempt to extract any or all of the source code of the SonaSafe Dashboard;
(d) remove, alter or obscure any copyright trade mark or other proprietary notices on the SonaSafe Dashboard;
(e) upload to the SonaSafe Dashboard any material that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy or right of publicity, hateful, or otherwise objectionable;
(f) circumvent the user authentication or security of the SonaSafe Dashboard or any related host, network, or account;
(g) without prior written consent from SonaSafe, perform any penetration testing on or with respect to the SonaSafe Dashboard, including use of any tools, code or instruction intended to fuzz, damage, destroy, alter, reveal any portion, or expose vulnerability of the SonaSafe Dashboard;
(h) sublicense, resell, or distribute any or all of the SonaSafe Dashboard;
(i) create multiple accounts to simulate or act as a single account or otherwise access the SonaSafe Dashboard in a manner intended to avoid incurring the payment of any fees for the SonaSafe Dashboard;
(j) access all or any part of the SonaSafe Dashboard to build a product or service which competes with the SonaSafe Dashboard; or
(k) make any use of the SonaSafe Dashboard that violates any applicable local, national, international, or foreign law.
20.3 Each party retains all right, title and interest in and to its pre-existing IP Rights. Nothing in these Terms transfers ownership of any pre-existing IP Rights. For clarity, all IP Rights in the Client Data remains the sole property of the Client, and all IP Rights in the SonaSafe Products, SonaSafe Dashboard and Documentation remains the sole property of SonaSafe.
20.4 All IP Rights created or generated by SonaSafe in the course of providing the Services, including the Generated Data and including any analytics, reports, performance metrics or aggregated information, remains the sole property of SonaSafe.
20.5 The Client grants to SonaSafe a non-exclusive, royalty-free licence to use, store, copy and process Client’s pre-existing IP Rights for the purposes of:
(a) performing SonaSafe’s obligations under these Terms, a PSA or Trial;
(b) understanding how the Client is using the SonaSafe Dashboard and Services; and
(c) performing data analysis on an aggregated and/or anonymous basis.
20.6 Where Generated Data contains Client Data, the Client hereby grants to SonaSafe a non-exclusive, royalty-free licence to use, store, copy and process the Client Data solely for the purposes stated at clause 20.5(a) to (c) above.
20.7 The Client may be granted access to Generated Data relevant to its operations as part of the Services, subject to the terms of the Agreement and any applicable confidentiality restrictions in accordance with clause 19.
21 TERMINATION
21.1 SonaSafe may terminate a PSA without cause by providing the Client with 40 Business Days written notice or such lesser period as may be mutually agreed.
21.2 Either party may terminate a PSA with immediate effect by giving written notice to the other party if the other party commits a material breach of this Agreement, including without limitation any breach of its obligations relating to Confidential Information or IP Rights, and, where the breach is capable of remedy, fails to remedy that breach within the period specified in the notice.
21.3 Neither party will be liable for any delay or failure to perform its obligations under these Terms or a PSA to the extent that such delay or failure is caused by a Force Majeure Event. If a Force Majeure Event continues for a period of more than 45 Business Days, either party may terminate these Terms by giving written notice to the other party, without liability for any loss or damage resulting from such termination.
21.4 Upon termination of these Terms or a PSA:
(a) The Client will return to SonaSafe any property, the Documentation and any other materials belonging to SonaSafe within 5 Business Days of termination. To the extent necessary, SonaSafe may enter the Site and recover any property which belongs to SonaSafe;
(b) the Client must immediately pay to SonaSafe any amounts owing by the Client to SonaSafe under these Terms; and
(c) both parties must immediately return or destroy any of the other party’s Confidential Information and must not use or disclose such information after termination.
21.5 Termination or expiry of these Terms shall not affect any rights, obligations, or liabilities of the parties that have accrued prior to termination, or any provisions which by their nature are intended to survive, including without limitation clause 17 (Warranties), clause 18 (Limitation of Liability), clause 19 (Confidentiality and Privacy), clauses 20.2 to 20.6 (Licensing and Intellectual Property), this clause 21 (Termination), clause 23 (Dispute Resolution), clause 29 (Notices) and clause 34 (Governing Law). These provisions shall remain in effect notwithstanding termination or expiry.
22 INDEMNITIES
22.1 The Client indemnifies, and must keep indemnified, SonaSafe and its Related Parties against all liabilities, losses, damages, costs and expenses (including legal costs on a full indemnity basis) arising from or in connection with:
(a) any breach by the Client of these Terms, including any failure to comply with its obligations, representations or warranties;
(b) any act or omission of the Client, its employees, agents or contractors;
(c) any claim by a third party arising from the Client’s use of the Services or SonaSafe Products, except to the extent caused by SonaSafe’s gross negligence or wilful misconduct; and
(d) any infringement or alleged infringement of any third party’s IP Rights arising from the Client’s Data or materials provided to SonaSafe.
22.2 SonaSafe indemnifies, and must keep indemnified, the Client against all liabilities, losses, damages, costs and expenses (including legal costs on a full indemnity basis) arising from or in connection with any claim by a third party that the Services or SonaSafe Products infringe any third party IP Rights, except to the extent the claim arises from the Client’s Data, instructions or specifications.
22.3 Neither party is liable to indemnify the other to the extent that the loss arises from:
(a) the other party’s negligence, misuse, or breach of these Terms;
(b) any use of the Services or Products outside the scope of the Terms or contrary to instructions provided; or
(c) any modification or combination of the Services or Products by the other party or a third party without SonaSafe’s prior written consent (for SonaSafe’s indemnity) or without the Client’s written consent (for Client indemnity).
23 DISPUTE RESOLUTION
23.1 If a dispute arises out of or relates to these Terms (“Dispute”) neither of the parties may commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause, except where the party seeks urgent interlocutory relief.
23.2 A party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute.
23.3 On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
23.4 If the Dispute is not resolved within 15 Business Days of the notice being given pursuant to clause 23.2 (or within such further period agreed in writing by the parties) either party may, by giving written notice to the other party, require the Dispute to be referred to mediation in accordance with the standard mediation rules of the Arbitrators and Mediators Institute of New Zealand (“AMINZ”). If, within 10 Business Days of the Dispute being referred to mediation the parties have not appointed a mediator, either party may request AMINZ to nominate a suitable mediator. The parties must agree to the appointment of any mediator nominated by AMINZ on the mediator’s standard terms of appointment.
23.5 If, within 15 Business Days after the commencement of mediation, the Dispute has not been resolved, the Dispute shall be referred to arbitration, in Auckland, before a single independent arbitrator subject to and in accordance with the provisions of the Arbitration Act 1996. If the parties are unable to agree on an arbitrator within 10 Business Days of referral of the Dispute to arbitration, one shall be appointed by AMINZ upon application by either party. The arbitrator’s decision shall be final and binding on the parties.
24 CONSUMER GUARANTEES ACT 1993
24.1 The parties agree that the SonaSafe Products and/or the Services are acquired for the purposes of a business and that the Consumer Guarantees Act 1993 does not apply.
25 CURRENCY
25.1 Unless otherwise agreed in writing, all prices, charges, invoices and payments under these Terms are stated and must be paid in New Zealand dollars (NZD) and are exclusive of GST and any other applicable taxes, duties or levies.
26 NO ASSIGNMENT OR SUBCONTRACTING
26.1 SonaSafe may assign all or any of its rights or obligations under these Terms or subcontract the Services in whole or in part to any other person or entity without the prior written consent of the Client. The Client may not assign all or any of its rights or obligations under these Terms to any other person or entity without the prior written consent of SonaSafe. A change in Control shall be deemed to be an assignment for the purposes of these Terms. SonaSafe may provide, deny or withhold its consent and impose any condition it considers necessary in its sole discretion. SonaSafe shall not be required to provide any reasons for its provision, denial, withholding or imposing of conditions of its consent.
27 INDEPENDENT CONTRACTOR
27.1 The parties acknowledge that SonaSafe is engaged as an independent contractor. Nothing in these Terms or the PSA creates or implies a relationship of employment, partnership, joint venture, agency, trust, or any other fiduciary relationship between the parties.
28 PUBLICITY
28.1 The Client agrees that SonaSafe may use or refer to its name and identify the Client as a current or former customer of SonaSafe, in any publicity or marketing collateral including any case studies, including after termination of this Agreement, unless otherwise agreed between the parties.
29 NOTICES
29.1 Notices must be in writing and are deemed received:
(a) on delivery to the party’s address;
(b) 5 Business Days after posting by pre-paid mail; or
(c) when sent to the party’s nominated email address.
29.2 SonaSafe’s notice details are:
Address: C/O BDO Auckland, Level 10, 19 Como Street, Takapuna, Auckland 0622
Attention: Paul Sills
Email: paul.sills@paulsills.co.nz
29.3 The Client’s details are as set out in the Proposal and/or PSA.
30 NO WAIVER
30.1 No failure by SonaSafe to exercise any right under these Terms will operate as a waiver of that right.
31 AMENDMENTS AND VARIATIONS
31.1 These Terms may be amended by SonaSafe from time to time by written notice to the Client. By receiving the SonaSafe Products and/or Services, the Client is deemed to accept and agree to the Terms in force at the time of such receipt. If the Client does not agree to the amended Terms, the Client may terminate this Agreement by giving 20 Business Days written notice, in which case SonaSafe will provide the Client with any Services or SonaSafe Products already ordered in accordance with the Terms in force immediately prior to the amendment.
32 PARTIAL INVALIDITY
32.1 The illegality, invalidity or unenforceability of a provision of these Terms under any law will not affect the legality, validity or enforceability of another provision.
33 ENTIRE AGREEMENT
33.1 These Terms, any Proposal or Agreement constitute the entire agreement between the parties and supersedes and replaces all previous agreements, understandings, representations and arrangements, whether written or oral, relating to the subject matter of these Terms.
34 GOVERNING LAW
34.1 These Terms will be governed by and construed in accordance with the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
