Client Agreement
Nextspace agrees to provide and you agree to buy Nextspace products and services as described on the terms outlined in this Agreement. The Agreement comprises:
- The Agreement below, including Appendices as applicable which are to be provided separately.
- Additional Schedules, Statements of Work, and Work Requests that will accumulate over time through further discussions with Nextspace and you or your Customer’s usage of Nextspace products and services.
Terms of this agreement
1. Interpretation
1.1 Definitions
In this Agreement the following terms have the stated meaning:
Account
a unique database instance within the PaaS, accessible via a unique URL. An Account Holder may have more than one Account.
Accepted Lead
a Direct Customer or Partner lead introduced by a Referrer and accepted in writing as a prospect by Nextspace.
Account Holder
you, if it is agreed in writing that you are a Direct Customer;
if it is agreed in writing that you are a Partner, your Customer to whom you are providing your Partner Services and Nextspace’s Services and Subscriptions in accordance with this Agreement;
or if it is agreed in writing that you are a Referrer, your Accepted Lead who purchases a Subscription in accordance with this Agreement.
if it is agreed in writing that you are a Partner, your Customer to whom you are providing your Partner Services and Nextspace’s Services and Subscriptions in accordance with this Agreement;
or if it is agreed in writing that you are a Referrer, your Accepted Lead who purchases a Subscription in accordance with this Agreement.
Agreement
this Agreement, including Schedules, Statements of Work and Work Requests.
Brands
subject to clause 5.8b, the brands, trademarks, logos and/or designs of a party.
Business
if it is agreed in writing that you are a Partner, the use of the PaaS to provide Partner Services to Customers and Account Holders including the resale of Nextspace Services and Subscriptions;
if it is agreed in writing that you are a Referrer, the promotion and marketing of Nextspace Services and Subscriptions.
if it is agreed in writing that you are a Referrer, the promotion and marketing of Nextspace Services and Subscriptions.
Confidential information
the terms of this Agreement and any information that is not public knowledge and that is obtained from the other party during, or in connection with this Agreement. Nextspace’s Confidential Information includes the Nextspace Software.
Customer
if it is agreed in writing that you are a Partner, the Account Holder to whom you provide Partner Services and/or to whom you resell Services and Subscriptions.
Direct Customer
an organization that works directly with Nextspace without engagement of a Partner and is an end-user utilising Nextspace technology without on-selling Nextspace Services and Subscriptions to other organizations.
Discount
if it is agreed in writing that you are a Referrer or Partner, the Discount (if any) agreed in writing between you and Nextspace.
Documentation
the documentation designed to enable proper use and operation of the PaaS (if any) and includes any update of the documentation.
Fees
- for the PaaS, the Subscription Fees; and
- for Professional Services, the Fees calculated in accordance with clause 6.1.
Force Majeure
an event that is beyond the reasonable control of a party, excluding:
- an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
- a lack of funds for any reason.
Good Industry Practice
in relation to an undertaking, the exercise of a degree of skill and care which would reasonably be expected from an experienced operator engaging in the same or a similar undertaking.
Initial Term
unless subsequently agreed in writing, the initial term is one month.
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 trademarks 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.
Nextspace Software
the software owned by Nextspace (and its licensors) that is used to provide the PaaS.
Nextspace Website
the internet site at www.nextspace.com or such other site notified to you by Nextspace.
Order
a written request by you for Nextspace to provide the PaaS for an Account Holder.
PaaS
the software platform as a service having the core functionality described on the Nextspace Website, as the Nextspace Website is updated from time to time.
Partner Services
if it is agreed in writing that you are a Partner, the services, other than the Services that you provide to Customers using or in connection with the PaaS, including development, integration, implementation, training, support, design, content production, and other consulting and professional services.
Professional Services
the services provided by Nextspace (e.g.development, integration, implementation, training, support, design, content production, and other consulting and professional services) as set out in a Statement of Work or Work Request.
Purpose
the purpose agreed in writing for which a Direct Customer or Account Holder may use the PaaS. If no purpose is agreed in writing, a Direct Customer or Account Holder may use the PaaS for any purpose provided it complies with the Nextspace Terms of Use as described on the Nextspace Website.
Referrer
an organization that identifies and introduces Direct Customer and Partner leads to Nextspace.
Renewal Term
unless otherwise agreed in writing, this Agreement renews for successive one-month terms.
Sales Tax
sales tax, goods and services tax, value added tax or equivalent tax payable under any applicable law.
Service Partner
an organization that on-sells the combined output of their own services/software and Nextspace Subscriptions and Services.
Services
the PaaS and the Professional Services.
Start Date
the date of this Agreement.
Statement of Work
a document titled Statement of Work that references this Agreement and is signed by both parties.
Subscription
a subscription to the PaaS, online and in-person training, or such other subscriptions as may be detailed on the Nextspace Website. Each Subscription will detail rights to access relevant Account/s and use the PaaS for the purposes of utilizing data stored in that Account.
Subscription Fees
the Fees for a Subscription, as set out in, and calculated in accordance with any written agreement between you and Nextspace, or where there is no such agreement, the Fees, and calculated in accordance with the terms and rates set out on the Nextspace Website, as updated from time to time in accordance with clause 6.4.
Subscription Minimum Term
one month, or longer if agreed in writing between the parties.
Terms of Use
the terms of use set out on the Nextspace Website, as those terms are updated from time to time by Nextspace.
Territory
Any specific territory agreed in writing.
Underlying Systems
the Nextspace Software, IT solutions, systems, and networks (including software and hardware) used to provide the PaaS Service, including any third-party solutions, systems, and networks.
Work Request
any request (including email and verbal requests) from you for Nextspace to perform Professional Services (e.g. development, integration, implementation, training, support, design, content production, and other consulting and professional services) which are not included in a Statement of Work, which has been accepted by Nextspace either in writing or by commencing the provision of the relevant Professional Services.
Year
a 12-month period starting on the Start Date or the anniversary of that date.
1.2 Interpretation
In this Agreement:
- clause and other headings are for ease of reference only and do not affect the interpretation of this Agreement;
- words in the singular include the plural and vice versa;
- a reference to:
- a clause or a Schedule is to a clause in or a Schedule to this Agreement;
- a party to this Agreement includes that party’s permitted assigns;
- personnel includes officers, employees, contractors, and agents, but a reference to Nextspace’s personnel does not include you;
- a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
- including and similar words do not imply any limit; and
- a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements, or other changes to any of them; and
- no term of this Agreement is to be read against a party because the term was first proposed or drafted by that party.
2. Agreement structure
2.1 Statements of Work and Work Requests
Each Statement of Work and each Work Request forms part of, and is governed by, this Agreement.
2.2 Order of precedence
If there is any conflict between the documents that form part of this Agreement, they will have the following precedence in the descending order of priority:
- Section B (General Terms);
- Section A (Agreement, including the cover page and the signature clause);
- Additional Schedules: Statements of Work and Work Requests that accumulate over time through further discussions with Nextspace and your or your Customer’s Account usage.
3. Ordering Subscriptions
3.1 Orders
If you require a Subscription, you must place an Order with Nextspace in writing, which must include:
- the details of the Account Holder (to avoid doubt, if it is agreed in writing that you are a Partner, you must provide the prospective Account Holder (and not your own) details as requested by Nextspace);
- the proposed start date for the Subscription;
- the Subscription Minimum Term (if any); and
- any other information reasonably required by Nextspace to determine Subscription Fees.
3.2 Accepting orders
Nextspace has the right to accept or reject each Order on reasonable grounds. If Nextspace rejects an Order, it must provide you with its reasons for doing so.
3.3 Order acceptance
If an Order is accepted by Nextspace:
- if it is agreed in writing that you are a Direct Customer, it becomes a binding contract for Nextspace to provide, and for you to receive and pay for, the PaaS set out in the Order for the Subscription Fee set out in the Order and on the terms set out in this Agreement and the Terms of Use. For clarity, if you are a Partner and require access to your own Account, you must become a Direct Customer as well; and
- if it is agreed in writing that you are a Partner:
- you must, as soon as practicable after Nextspace accepts the Order:
- procure that the Account Holder accepts the Terms of Use via the Nextspace Website; or
- enter into a written agreement with the prospective Account Holder (Account Holder Agreement) in which you agree that Nextspace will provide, and the Account Holder will receive and pay for, the PaaS set out in the Order for the Subscription Fee set out in the Order and on the terms set out in the Terms of Use, and that, except as set out in clause 3.3bii, does not include anything that is inconsistent with the Terms of Use;
- despite clause 3.3bi, you will be responsible for billing and debt collection of the Subscription Fees; and
iii. Nextspace will have no obligation to provide the relevant PaaS until you have complied with clause 3.3bi including, where the second bullet point of clause 3.3bi applies, providing Nextspace with a copy of the Account Holder Agreement; and
- unless otherwise agreed by the parties in writing, the Subscription Fees apply from the date that Nextspace provides you or the Account Holder (as applicable) with access to the relevant Account within the PaaS environment.
4. Provision and use of services
4.1 Nextspace obligations
Nextspace will use reasonable efforts to provide:
- the Services:
- in accordance with the Agreement and applicable law;
- exercising reasonable care, skill and diligence; and
- using suitably skilled, experienced and qualified personnel; and
- the PaaS in accordance with the Terms of Use.
4.2 Your obligations
You must:
- where you are the Account Holder under a Subscription, comply with the Terms of Use and only use the PaaS for the Purpose;
- perform your obligations under each Statement of Work and Work Request; and
- promptly make decisions (including approvals) and provide all information, instructions, and assistance as and when reasonably required by Nextspace to enable Nextspace to perform its obligations under each Statement of Work and Work Request.
4.3 Fair use policy
The Account Holder’s use of the PaaS (and any use of the PaaS by a Partner on behalf of an Account Holder or Customer) is subject to Nextspace’s fair use policy, which is as follows:
- Nextspace may apply its fair use policy where, in its reasonable opinion, the Account Holder’s use of the PaaS is excessive and/or unreasonable as detailed below.
- Nextspace has developed its fair use policy by reference to average customer profiles and estimated customer usage of the PaaS.
- If the Account Holder’s usage of the PaaS materially exceeds Nextspace’s range of estimated use patterns taking into account both separately and the combined use of data, data storage and user traffic, or is likely to impair the operation of the PaaS or the ability of any other user to use the PaaS, Nextspace will consider the Account Holder’s use of the PaaS to be excessive and/or unreasonable, in which case Nextspace may:
- contact you to advise you that the Account Holder’s use of the PaaS is in breach of Nextspace’s fair use policy; and
- request that you stop or alter your use of the PaaS (or, if you are not the Account Holder, that you ask the Account Holder to stop or alter the Account Holder’s use of the PaaS) to come within Nextspace’s fair use policy.
- If the excessive or unreasonable usage continues after receipt of a request to stop or alter the nature of such usage, Nextspace may restrict or suspend the Account Holder’s access to and use of the PaaS and/or delete, edit, or remove the Account Holder’s data.
- Nextspace must notify you where it restricts or suspends the Account Holder’s access, or deletes, edits, or removes data, under clause 4.3d.
5. Partner appointment
5.1 Application
This clause 5 only applies if it is agreed in writing that you are a Partner.
5.2 Right to conduct the Business
- Nextspace grants to you the non-exclusive, non-transferable right to conduct the Business in accordance with this Agreement for the duration of this Agreement.
- You must use best efforts to conduct the Business.
5.3 Territory
You must not market, promote, resell, or distribute the PaaS or Partner Services outside any Territory agreed. You will promptly pass to Nextspace details of any inquiry or order received by you from a prospective Customer, user, or Partner outside your Territory.
5.4 Non-exclusive arrangement
To avoid doubt, the rights granted to you under this Agreement are non-exclusive. Nothing in this Agreement applies to limit or restrict Nextspace’s right to conduct the Business (and to authorize third parties to conduct the Business).
5.5 General
You must, at your own expense:
- work diligently to promote and protect Nextspace’s interests, enhance and maintain the reputation of the PaaS and Nextspace, and act loyally and faithfully towards Nextspace, including:
- without limiting clause 8.6, representing the PaaS and Nextspace’s Brands to Customers and Account Holders and prospective Customers and Account Holders in the most favorable manner at every reasonable opportunity; and
- maintaining good relationships with all of the Customers and Account Holders and prospective Customers and Account Holders in the Territory; and
- use best efforts to maximize sales of Subscriptions in the Territory;
- conduct the Business in accordance with Good Industry Practice;
- comply with:
- all applicable laws, regulations, rules and professional codes of conduct or practice when conducting the Business and performing your other obligations in this Agreement; and
- reasonable guidance from Nextspace on the conduct of the Business, as updated by Nextspace from time to time;
- procure all licenses, authorizations and consents necessary for you to conduct the Business;
- promptly notify Nextspace of:
- any breach of your obligations under this Agreement or any matter which may impact on your ability to perform your obligations under this Agreement; and
- any complaint relating to the PaaS or Partner Services that is received by you, together with all available information relating to the complaint; and
- undertake, and procure your personnel to undertake technical training related to the PaaS as is reasonably required by Nextspace, including to become familiar with the PaaS.
5.6 Channel programs
Without limiting clause 5.5g, Nextspace may, in its sole discretion, offer channel programs and promotions (Programs) under which you may earn benefits, including additional payments, enhanced training and support, market development funding, and other benefits as determined by Nextspace. Nextspace may modify or discontinue any Program at any time, and may determine the continuation or expiration of any Program benefits in its sole discretion.
5.7 Insurance
At your own expense, you must maintain in effect at all times during the term of this Agreement the insurance policies, with a reputable third-party insurance company, that a prudent entity conducting the Business would maintain, taking into account your risks and potential liabilities under this Agreement. On request by Nextspace, you must provide evidence of your compliance with this clause.
5.8 Branding
- Nextspace grants to you a non-exclusive, non-transferable license for the duration of this Agreement to use the Nextspace Brands in the Territory to conduct the Business in accordance with this Agreement.
- Unless otherwise agreed by the parties, the PaaS must be marketed and sold by you using the Nextspace Brands. Nextspace may add or remove a Nextspace Brand from the scope of this Agreement at any time by notice to you.
- You must use the Nextspace Brands only in accordance with any usage and marketing guidelines provided by Nextspace from time to time.
- All goodwill generated through your use of the Nextspace Brands accrues to the benefit of Nextspace.
5.9 Requirements and restraints
You must:
- avoid entering any arrangement which would result in a conflict of interest with its obligations under this Agreement, including reselling any software, service or other product that competes with the PaaS; and
- without limiting clause 5.9a, during the term of this Agreement and for a period of 6 months after its termination or expiry, not directly or indirectly operate or otherwise be involved in a business that competes with Nextspace’s business or the PaaS, whether as a principal, employee, partner, agent, shareholder or however else.
5.10 Prohibition
Other than the warranties referred to in clause 10.2a and any other warranties or representations authorized by Nextspace in writing, you must not give any warranty or make any representation relating to the PaaS, including that the PaaS will be exclusively licensed or made available to a Customer or Account Holder or prospective Customer or Account Holder.
5.11 Your indemnity
You indemnify Nextspace from and against any claim, proceeding, damage, loss, liability, cost and expense (including legal costs on a solicitor and own client basis) suffered or incurred by Nextspace resulting from any warranty given or representation made by you to a Customer or Account Holder or prospective Customer or Account Holder in breach of clause 5.10.
5.12 Records
You must maintain complete and accurate written records of all information relating to your conduct of the Business and which may be required to enable Nextspace or its authorized representative to verify your compliance with this Agreement and any payment made by or to you under or in connection with this Agreement. On request, you must make available those records to Nextspace, including allowing Nextspace to copy those records.
5.13 Reporting
If requested by Nextspace you must provide a written report to Nextspace within 30 days. The report must include:
- details of your actual performance;
- details (including names and contact details) of current sales leads, prospects and planned promotional activity, including a rolling forecast of proposed Subscriptions for the next 6 calendar months; and
- any other information reasonably requested by Nextspace.
5.14 Marketing review
If requested by Nextspace, the parties shall meet within 30 days to:
- review the sales made by you;
- discuss opportunities and risks, your marketing plans and forecast purchases of Subscriptions; and
- discuss what assistance may be required from Nextspace to support those marketing plans.
5.15 Nextspace obligations
In addition to complying with its other obligations in this Agreement, Nextspace must:
- use reasonable efforts to support and assist your conduct of the Business;
- at your reasonable request, provide you with:
- any existing marketing material to enable you to conduct the Business; and
- reasonable technical training and guidance about the PaaS at dates and times agreed by the parties; and
- use reasonable efforts to keep you informed about any new version of the PaaS and other products and services that Nextspace may be making available to you.
6. Fees
6.1 General
- You must pay Nextspace the Fees plus Sales Tax (if any) in accordance with this clause 6.
- To avoid doubt, if it is agreed in writing that you are a Partner, you are required to pay Nextspace the Fees calculated according to this Agreement regardless of whether the relevant Fees have been paid for by your Customer or Account Holder (as applicable).
- Unless otherwise agreed in a Statement of Work or Work Request, Nextspace’s Fees for the performance of Professional Services will be calculated on a time and materials basis in accordance with the standard rates agreed in writing between you and Nextspace, or if no such individual agreement exists, the rates set out on the Nextspace Website.
- Nextspace’s Fees are reviewed and updated from time to time. Nextspace may increase the Fees as follows.
- Where those Fees are agreed in writing between you and Nextspace, by giving at least 30 days’ notice, provided that Nextspace does not increase the Fees more than once each Year.
- Where those Fees are set out on the Nextspace Website, by advising of the increase on the Nextspace Website at least 30 days before those Fees become effective. You acknowledge and agree that you are responsible for regularly checking the Nextspace Website for any Fees updates.
6.2 Invoicing and payment
- Nextspace will provide you with valid Sales Tax invoices monthly.
- The Fees exclude Sales Tax, which you must pay on taxable supplies under this Agreement.
- You must pay the invoice in full:
- unless otherwise agreed between the parties, within 30 days of the date of invoice; and
- subject to clause 7.2d (if applicable) without set-off or deduction. If you are required by law to make any deduction relating to the Fees, you must pay Nextspace any additional amount that is necessary to ensure receipt by Nextspace of the full amount which Nextspace would have received but for the deduction.
6.3 Overdue amounts
Nextspace may:
- charge interest on any overdue amount. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by Nextspace’s primary trading bank as at the due date (or, if Nextspace’s primary trading bank ceases to quote such a rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum; and
- recover all costs incurred in recovering overdue amounts and interest from you, including the actual Fees charged by its lawyers and any debt collection agency.
6.4 Subscription Fee increases
- If you do not (or, if it is agreed in writing that you are a Partner, your Account Holder does not) wish to pay the increased Subscription Fees, you (or the Account Holder) may terminate the Subscription on no less than 10 days’ notice, provided the notice is received by Nextspace before the effective date of the Subscription Fee increase. If you do not (or the Account Holder does not) terminate the Subscription in accordance with this clause, you are (or the Account Holder is) deemed to have accepted the increased Subscription Fees.
7. Discount
7.1 Application
This clause applies if:
- if it is agreed in writing that you are a Referrer or Partner; and
- any Discount has been agreed between you and Nextspace.
7.2 Invoicing and payment
- Within 7 working days of the end of any given month, Nextspace shall provide you with a reconciliation of the Discount due to you based on relevant payments made to Nextspace, including all information reasonably required to verify that Discount.
- You must notify Nextspace in writing of any error in the calculation of the Discount within 7 days of receiving the reconciliation or you are deemed to have accepted that reconciliation. Clause 13 applies to any dispute relating to a calculation error.
- Once you have accepted a reconciliation per clause 7.2a, you will provide a valid tax invoice for the same. To avoid doubt, the amount stated in the invoice must be the amount in the reconciliation provided under clause 7.2a or as determined/agreed under clause 12.5.
- If you are a Partner, subject to you providing a valid tax invoice for the Discount that complies with this clause 7.2, you may set off the Discount against your payment of your Account Holder’s Service and Subscription Fees to which the Discount relates. If you are a Referrer, Nextspace will pay your invoice on or around the 20th of the month following the date of that tax invoice.
- Should your Account Holder advise Nextspace that, for any reason, they do not want you to continue to receive the Discount, Nextspace will advise you and give you the opportunity to reconfirm the arrangement with your Account Holder.
- If you are a Partner and your Account Holder terminates their relationship with you, this will terminate the Discount arrangement agreed upon with Nextspace. You agree that this does not affect the Account Holder’s rights to their Account and data, and that it is your responsibility to resurrect the relationship or agree a transition arrangement with your Account Holder or any replacement Partner. Once an outcome is determined, you will advise Nextspace accordingly.
7.3 Sales Tax and deductions
- Other than Sales Tax, you are responsible for paying all taxes, duties, Fees or other government charges relating to the Discount.
- Nextspace may deduct any withholding tax required to be withheld by law from the Discount payments made. If withholding occurs, Nextspace will advise you of the amount withheld at the time each payment is made.
8. Intellectual Property
8.1 Services
Subject to clause 8.4, Nextspace (and its licensors) owns all Intellectual Property Rights including Software, Services and Documentation. You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
8.2 Reservation of rights
This Agreement does not transfer or license any Nextspace Intellectual Property to you, except as expressly set out in this Agreement.
8.3 New Intellectual Property
Subject to clause 8.4, as between the parties, from the date it is created, Nextspace solely owns all new Intellectual Property developed by Nextspace in the course of providing the Services or otherwise in connection with this Agreement.
8.4 Client Branding
To the extent that the PaaS enable customization (e.g. as at the Start Date, the user interface is customizable), and you incorporate your Brands into that customization, you will continue to own all Intellectual Property Rights in those Brands. To avoid doubt, all Intellectual Property Rights in all customization beyond the incorporation of your Brands, including frameworks, functionality, templates, generic code, utility classes, and processes, are owned by Nextspace and may be used by Nextspace for any purpose.
8.5 Feedback
If you or any Customer or Account Holder provides Nextspace with ideas, comments or suggestions relating to the Services or the Documentation (together feedback):
- all Intellectual Property Rights in that feedback, and anything created because of that feedback (including new material, enhancements, modifications, or derivative works), are owned solely by Nextspace; and
- Nextspace may use or disclose the feedback for any purpose.
8.6 Restrictions
You must not:
- use Nextspace’s Intellectual Property other than to exercise your rights and carry out your obligations under this Agreement; or
- alter, remove, or otherwise interfere with any copyright or proprietary marking on the Documentation.
8.7 Notifying of issues
- You must promptly notify Nextspace:
- where you become aware, or reasonably suspect, that Nextspace’s Intellectual Property Rights are being infringed, or are likely to be infringed, including any circumstance that suggests a person may have unauthorized knowledge or use of the PaaS; and
- of any proceeding or known intention to bring proceedings against you and/or Nextspace in relation to the PaaS, including for infringement of Intellectual Property Rights.
- Nextspace has the sole right to take, defend or settle any proceeding for any alleged infringement of any Intellectual Property Right of any third party relating to the Intellectual Property of Nextspace.
- You must provide Nextspace with all assistance reasonably requested by Nextspace, at Nextspace’s reasonable cost, relating to any action taken by Nextspace on a matter notified by you under clause 8.7a.
8.8 Publicity rights
You agree that Nextspace may identify you as a Direct Customer, Referrer, or Partner (as applicable) on the Nextspace Website and in its marketing and other promotional materials, including generally displaying or describing your, your Customers and your Account Holder’s work under this agreement (provided that no commercially sensitive information is used). You grant Nextspace a non-exclusive, royalty-free license to use, publish and display your Brands for these purposes. Nextspace will use your Brands only in accordance with any usage and marketing guidelines provided by you from time to time. You may withdraw Nextspace’s rights under this clause at any time by written notice to Nextspace.
8.9 IP indemnity
- Nextspace indemnifies you from and against any claim or proceeding brought against you in the Territory to the extent that claim or proceeding alleges that the PaaS or your use or resale (as permitted under this Agreement) of the PaaS by you in accordance with this Agreement constitutes an infringement of a third party’s Intellectual Property Rights in the Territory (IP Claim). The indemnity in this clause is subject to you:
- promptly notifying Nextspace of the IP Claim;
- making no admission of liability and not otherwise prejudicing or settling the IP Claim, without Nextspace’s prior written consent; and
- giving Nextspace complete authority and information required for Nextspace to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for Nextspace’s account.
- The indemnity in clause 8.9a does not apply to the extent that the IP Claim arises from or in connection with:
- your breach of this Agreement;
- any customization of the PaaS made by you; or
- the use of the PaaS in a manner or for a purpose not reasonably contemplated by this Agreement or otherwise not authorized in writing by Nextspace.
- Without limiting the indemnity in clause 8.9a, if at any time an IP Claim is made, or in Nextspace’s opinion is likely to be made, then in defense or settlement of the IP Claim, Nextspace may modify or replace the items the subject of the IP Claim so they become non-infringing.
9. Confidentiality
9.1 Security
Each party must, unless it has the prior written consent of the other party:
- keep confidential at all times the Confidential Information of the other party;
- effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorized access or use; and
- disclose Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that the personnel or professional advisor is aware of, and complies with, clauses 9.1a and 9.1b.
9.2 Permitted disclosure
The obligation of confidentiality in clause 9.1a does not apply to any disclosure or use of Confidential Information:
- for the purpose of performing this Agreement or exercising a party’s rights under this Agreement;
- required by law (including under the rules of any stock exchange);
- which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
- which was rightfully received from a third party without restriction and without breach of any obligation of confidentiality; or
- by Nextspace if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that Nextspace enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 9.
10. Warranties
10.1 Mutual warranties
Each party warrants that it has full power and authority to enter into and perform its obligations under this Agreement which, when signed, will constitute binding obligations on the warranting party.
10.2 Services
Nextspace does not give any warranty to either you or any Customer or Account Holder relating to the Services, other than the warranties:
- that Nextspace makes in this Agreement or the Terms of Use; or
- for which Nextspace cannot exclude its liability.
10.3 No implied warranties
To the maximum extent permitted by law:
- Nextspace’s warranties are limited to those set out in this Agreement and the Terms of Use, and all other conditions, guarantees or warranties, whether expressed or implied by statute or otherwise, are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to an amount equal to the Fees paid or payable by you to Nextspace in relation to the relevant Services; and
- Nextspace makes no representation concerning the quality of the Services and does not promise that the Services will operate without error or interruption.
10.4 Parties in trade
You agree and represent that you are acquiring the Services and, where applicable, the right to conduct the Business, and entering this Agreement, for the purposes of trade. The parties agree that:
- to the maximum extent permissible by law, no consumer protection legislation applies to the supply of the Services, that right or this Agreement; and
- it is fair and reasonable that the parties are bound by this clause 10.4.
11. Liability
11.1 Maximum liability
The maximum aggregate liability of Nextspace under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise:
- relating to any Services or Subscriptions must not, in any Year, exceed an amount equal to the Fees (net of Discount, if a Discount has been paid in respect of those Fees) paid by you to Nextspace under this Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid to you from the Start Date to the date of the first event giving rise to liability);
11.2 Unrecoverable loss
- Neither party is liable to the other under or in connection with this Agreement for any:
- loss of profit, revenue, savings, business, data and/or goodwill; or
- consequential, indirect, incidental, or special damage or loss of any kind.
- To avoid doubt, your liability to a Customer or Account Holder (if applicable) or any other person is a type of loss excluded under clause 11.2a.
11.3 Unlimited liability
- Clauses 11.1 and 11.2 do not apply to limit Nextspace’s liability:
- to pay the Discount (if applicable);
- under the indemnity in clause 8.9; or
- under or in connection with this Agreement for:
- personal injury or death;
- fraud or wilful misconduct; or
- breach of clause 9.
- Clause 11.1 does not apply to limit your liability:
- to pay the Fees;
- for breach of clause 3.3b, 5.3, 5.5di, 5.5e, 5.8, 5.9b, 5.10 or 8.6;
- under the indemnity in clause 5.11; or
- for those matters stated in clause 11.3aiii.
11.4 No liability for other’s failure
Neither party will be responsible, liable, or held to be in breach of this Agreement for any failure to perform its obligations under this Agreement or otherwise, to the extent the failure is directly caused by the other party failing to comply with its obligations under this Agreement, or by the negligence or misconduct of the other party or its personnel.
11.5 Mitigation
Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with this Agreement.
12. Term and termination
12.1 Duration
- Unless terminated under this clause 12, this Agreement:
- starts on the Start Date and will be in effect for the Initial Term; and
- at the expiry of the Initial Term, continues for successive Renewal Terms unless a party gives 10 days’ notice that this Agreement will terminate on the expiry of the then-current term.
- Each Subscription starts on the Start Date and continues until a party gives at least 30 days’ notice that the Subscription will terminate on the expiry of that notice, provided that, if there is a Subscription Minimum Term for the Subscription, the earliest date for termination of the Subscription will be the expiry of that Subscription Minimum Term.
- Each Statement of Work starts on the start date set out in the Statement of Work and, unless set out in the Statement of Work, ends on the date of delivery of all the Professional Services under the Statement of Work.
- Each Work Request starts when Nextspace accepts your request for services in writing or by commencing the provision of the relevant services and, unless agreed in writing, ends on the date of delivery of all the Professional Services under the Work Request.
12.2 Other Agreement termination rights
- Either party may, by notice to the other party, immediately terminate this Agreement if the other party:
- breaches any material provision of this Agreement and the breach is not:
- remedied within 10 days of the receipt of the notice from the first party requiring it to remedy the breach; or
- capable of being remedied;
- becomes insolvent, liquidated, or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
- is unable to perform a material obligation under this Agreement for 30 days or more due to Force Majeure.
- Nextspace may, by notice to you, immediately terminate this Agreement if the exercise of the remedy in clause 8.9c does not remedy or settle the IP Claim.
12.3 Termination of Subscriptions, Statements of Work and Work Requests
- Subject to clause 12.3a, each Subscription will terminate on expiry or termination of this Agreement under clause 12.1 or 12.2.
- Each Statement of Work and Work Request will terminate:
- on expiry or termination of this Agreement under clause 12.1 or 12.2; or
- in accordance with any additional rights to terminate set out in the Statement of Work or Work Request.
- Where a party has a right to terminate this Agreement under clause 12.2 it may, at its discretion and to the extent practicable, instead of terminating this Agreement in full, terminate an affected Subscription, Statement of Work or Work Request.
- Clause 12.4 applies, with all necessary changes, to termination of a Subscription, Statement of Work or Work Request.
12.4 Consequences of termination or expiry
- Termination or expiry of this Agreement does not affect either party’s rights and obligations accrued before that termination or expiry.
- On termination or expiry of this Agreement, you must:
- immediately cease to:
- conduct the Business (if applicable); and
- use the PaaS, the Documentation, the Nextspace Brands (if applicable) and all other Nextspace Confidential Information;
- promptly return, destroy or erase (at Nextspace’s option) all copies of Nextspace Intellectual Property in your possession (including the Documentation, and (if applicable) all signs, stationery, sales brochures and promotional and support materials supplied to or used by you in relation to the conduct of the Business), and (if requested by Nextspace) certify in writing your compliance with this clause 12.4bii; and
- If it is agreed in writing that you are a Partner, where this Agreement is terminated by Nextspace under clause 12.2a, no further Discount is payable by Nextspace to you from the termination date. In all other cases, Nextspace must continue to pay the applicable Discount in accordance with this Agreement.
- No compensation is payable by Nextspace to you because of termination of this Agreement for whatever reason.
12.5 Obligations continuing
Clauses which, by their nature, are intended to survive termination or expiry of this Agreement, including clauses 5.9b, 5.12, 8.1 to 8.4, 9, 5.11, 11, 12.4, 12.5 and 13 continue in force.
13. Disputes
13.1 Good faith negotiations
Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, this Agreement through good faith negotiations.
13.2 Obligations continue
Each party must, to the extent practicable, continue to perform its obligations under this Agreement even if there is a dispute.
13.3 Right to seek relief
This clause 13 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
14. General
14.1 Force Majeure
Neither party is liable to the other for any failure to perform its obligations under this Agreement to the extent caused by Force Majeure, provided that the affected party:
- promptly notifies the other party and provides full information about the Force Majeure;
- uses best efforts to overcome the Force Majeure; and
- continues to perform its obligations to the extent practicable.
14.2 Rights of third parties
No person other than Nextspace and you has any right to a benefit under, or right to enforce, this Agreement.
14.3 Independent contractor
Except as set out in the Terms of Use (if you are the Account Holder under a Subscription), we are an independent contractor to you, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under this Agreement.
14.4 Waiver
To waive a right under this Agreement, that waiver must be in writing and signed by the waiving party.
14.5 Notices
A notice given by a party under this Agreement must be delivered to the other party via email using the email address provided by you and through a Nextspace email address listed on the Nextspace Website or otherwise notified by the other party for this purpose. If the notice is given under clause 12, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address.
14.6 Severability
- If any provision of this Agreement is, or becomes, illegal, unenforceable, or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability, or invalidity.
- If modification under clause 14.6a is not possible, the provision must be treated for all purposes as severed from this Agreement without affecting the legality, enforceability, or validity of the remaining provisions of this Agreement.
14.7 Variation
Subject to clause 5.8b, any variation to this Agreement must be in writing and signed by both parties.
14.8 Entire Agreement
This Agreement, together with the Terms of Use (if applicable), sets out everything agreed by the parties relating to the Services, the relationship between the parties, and the conduct of the Business (if applicable), and supersedes and cancels anything discussed, exchanged, or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of this Agreement that is not expressly set out in this Agreement, and no such representation, warranty or agreement has any effect from the Start Date.
14.9 No assignment
Neither party may assign, subcontract, or transfer any right or obligation under this Agreement without the prior written approval of the other (not to be unreasonably withheld). The first party remains liable for its obligations under this Agreement despite any approved assignment, subcontracting, or transfer.
14.10 Law
This Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the courts of New Zealand in relation to any dispute connected with this Agreement.
14.11 Counterparts
This Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter this Agreement by signing and emailing a counterpart copy to the other party.
Effective date—22 December 2022
Effective date—22 December 2022