Terms

1. APPOINTMENT AND TERM

1.2 Term of Agreement: This Agreement begins on the Start Date and will continue until it is terminated in accordance with its terms (Term).

1.3 Term for Services: Max Novus will provide each Service for the duration specified in the Key Terms (Service Term). You may cancel a Service before the end of the applicable Service Term by giving Max Novus at least 30 days’ prior written notice (Cancellation Period). If you do not notify us within the Cancellation Period, the Service Term will be automatically extended for an equivalent period.

1.4 Early Termination Fee: If you cancel during the “cooling-off period,” there will be no penalties. However, if you cancel outside the “cooling-off period,” an Early Termination Fee of 60% of the remaining contract value will apply.

2. OBLIGATIONS

2.1 Max Novus: In addition to any other obligations set out in this Agreement, Max Novus will provide the Services to you:

(a) in accordance with the Specification in all material respects, the terms of this Agreement and all applicable laws;

(b) exercising reasonable care, skill, and diligence; and

(c) using suitably skilled, experienced, and qualified staff.

2.2 Customer: You will:

(a) provide Max Novus with all necessary information, materials, and feedback on the Services and Deliverables in a timely manner that Max Novus may reasonably require to provide the Services, ensuring such information, materials, and feedback are complete, accurate, and up to date in all material respects;

(b) cooperate with Max Novus in all matters relating to the provision of the Services;

(c) obtain and maintain all necessary licenses, permissions, and consents that may be required for the provision of the Services before the Start Date and during the Term, including in accordance with clause 5;

(d) notify Max Novus of any change made by you or any third party to any website in relation to which we are providing the Services, as any such change may impact the performance of the Services, particularly the tracking of any advertising campaign;

(e) only use the Services and Deliverables or any part of them for the express purposes for which they have been provided by Max Novus, and you will not access or use the Services and Deliverables for any purpose that is illegal or prohibited by these Terms; and

(f) comply with all applicable laws and clause 2.4(a) at all times in relation to your use of the Services.

2.3 Third Party Platforms: Where shown in the relevant Service description, certain Services may be delivered through or are dependent upon the use of certain Third Party Platforms or systems (Third Party Platforms). You agree that:

(a) you will provide Max Novus (and its employees, agents, consultants, and subcontractors as applicable) with access to your accounts on any Third Party Platforms as reasonably requested and required by us so we can provide the Services to you;

(b) you will ensure, and be solely responsible for ensuring, that any previously paid services that you have established in your name in relation to the Services that have not been set up or are not managed by Max Novus have been closed or deactivated before Max Novus commences provision of the Services;

(c) your use of those Services is subject to the terms and conditions of the relevant Third Party Platform referred to in the Services Description or as otherwise notified to you by Max Novus;

(d) where Max Novus has established an account on a Third Party Platform in relation to the provision of Services to you, such account(s) will remain the property of Max Novus and will not be transferable to you on the termination or expiry of the Services or this Agreement;

(e) Max Novus does not control the Third Party Platforms and will not be liable for any system errors (including application, software, hardware, downtime, loss of access or information, or other damage except to the extent caused directly by Max Novus’s negligence or willful misconduct), the quality or performance of the Third Party Platform or its services, or any acts or omissions of the operator of the Third Party Platform;

(f) the Fees payable may include certain charges or costs relating to use of the Third Party Platform or its services as set out in the Services Description at Schedule 1, or otherwise as notified to you by Max Novus. You are responsible for any other charges or costs related to the use of Third Party Platforms in relation to the provision of the Services, for which you will promptly reimburse Max Novus on receipt of a valid invoice where those costs are initially incurred by Max Novus; and

(g) you will not use, or misuse, any Third Party Platform or any Service in any way that could impair the functionality of any Third Party Platform, the delivery of the Service, or other systems or networks used to host or make available the Service, or that could impair the ability of any other user to access or use the Third Party Platform or any Service; and

(h) you will not attempt to view, access, or copy any deliverables, materials, or data other than that which you are authorized to access.

2.4 Customer Default: Subject to clause 7.3 and without prejudice to any other right or remedy available to Max Novus, if a Customer’s act, omission, or failure to perform any of its relevant obligations (Customer Default) prevents, delays, or otherwise interferes with Max Novus’s performance of any of its obligations under the Agreement, then:

(a) Max Novus will be entitled to suspend its performance of the Services until you remedy the Customer Default, during which time Max Novus will continue to invoice you for the provision of the Services subject to the Term being extended by the length of time the Services were suspended;

(b) Max Novus will be entitled to rely on a Customer Default to relieve it of its obligations under this Agreement in each case to the extent a Customer Default prevents or delays Max Novus’s performance of any such obligations;

(c) Max Novus will not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from Max Novus’s failure or delay to perform any of its obligations to the extent a Customer Default prevents or delays Max Novus’s performance of any such obligations; and

(d) you will reimburse Max Novus on written demand for any costs or losses sustained or incurred by Max Novus arising directly or indirectly from the Customer Default.

3. FEES AND INVOICING

3.1 Fee payment: In consideration of the provision of the Services by Max Novus, you will pay Max Novus the Fees by credit card as indicated in the Key Terms or by any other method the parties may agree from time to time and in accordance with this Agreement.

3.2 The Fees for the Services are calculated on a monthly basis and exclude Goods and Services Tax unless otherwise stated.

3.3 Invoicing: Max Novus will provide you with valid tax invoices for the Fees on a monthly basis in advance or as otherwise agreed by the parties in writing.

3.4 Subject to clause 3.5 below, you will pay in full any invoice received from Max Novus on or before the specified due date on the invoice or in accordance with any other arrangements previously agreed in writing between the parties (Due Date).

3.5 If you have a genuine dispute with an invoice or any part of it, you will notify Max Novus of the reasons for such dispute within 7 Business Days of receipt of the invoice. You agree to pay the part of the invoice that is not in dispute and any further dispute will be addressed pursuant to clause 10.

3.6 Overdue amounts: Subject to clause 3.5, if you fail to make full payment of any invoice by the Due Date, Max Novus may, at its sole discretion:

• (a) charge a 10% late payment fee on all overdue amounts (excluding interest under this clause 3.6(a));
• (b) charge an administrative fee to cover any administrative costs incurred by Max Novus in respect of your failure to make full payment by the Due Date;
• (c) cancel or suspend access to the Services, Customer accounts and/or any phone number connected to a Customer’s account;
• (d) terminate this Agreement in accordance with clause 6;
• (e) cancel any rebate, discount or allowance due or payable by Max Novus as at the date the invoice becomes overdue;
• (f) institute any recovery process as Max Novus thinks fit at your cost for amounts owing by the due date(s) on any invoice(s), the customer will indemnity Max Novus Limited against all costs incurred in the collection/recovery of the overdue amount(s). This includes but is not limited to debt collection costs and solicitor costs on an indemnity basis.

4. EXCLUSIONS

4.1 All warranties, terms, guarantees and conditions that are not expressly set out in this Agreement are excluded to the extent permitted by law.

4.2 You agree and represent that you are acquiring the Services for the purposes of trade. The parties agree that:

• (a) to the maximum extent permissible by law, the New Zealand Consumer Guarantees Act 1993 does not apply to the supply of the Services or the Agreement; and
• (b) it is fair and reasonable that the parties are bound by this Agreement, including this clause.

5. INTELLECTUAL PROPERTY

5.1 IP owned by Max Novus: All pre-existing Intellectual Property Rights in or used by Max Novus in delivering the Services, and any Intellectual Property Rights of general application developed or created in delivering the Services (in each case other than Intellectual Property Rights in any materials provided by you) are and shall remain the exclusive property of Max Novus or its licensors, unless otherwise agreed by the parties in writing.

5.2 IP owned by you: As between the parties to this Agreement, all Intellectual Property Rights in the following will remain your property:

• (a) any content you supply to us (including without limitation copy, images and video) in connection with the Services; and
• (b) any Deliverables or content created by Max Novus specifically for you as part of the Services (together the Customer IP).

5.3 Licence of content: You grant to Max Novus, or shall procure the direct grant to Max Novus of, a fully paid-up, worldwide, non-exclusive, royalty-free licence to use, copy, adapt, modify and make available any Deliverables that Max Novus produces for you, and any other materials or content that you provide to Max Novus in relation to the provision of the Services (including any content supplied by you including text, images and video) for the purpose of enabling Max Novus to provide the Services and/or the Deliverables and in relation to the operation of its business.

5.4 Our use of Customer IP: You represent and warrant that you hold all rights necessary to provide the Customer IP to Max Novus for use by Max Novus in performing the Services and that such use will not infringe the rights of any third party. You indemnify and hold Max Novus harmless from and against any claim, cost, proceeding or liability brought against or incurred by Max Novus as a result of any claim by a third party of infringement of their Intellectual Property Rights relating to Max Novus’s use of any Customer IP as part of the provision of the Services.

6. TERMINATION

6.1 Mutual termination rights: Without affecting any other right or remedy available to it, either party may terminate this Agreement at any time with immediate effect upon written notice to the other party, if that other party:

• (a) commits a material breach of any term of this Agreement and, where the breach is remediable, fails to remedy the breach within 10 Business Days of being notified in writing to do so; or
• (b) has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of external administration, or ceases to continue business for any reason.

6.2 Max Novus termination rights: Without affecting any other right or remedy available to it, Max Novus may:

• (a) terminate this Agreement at any time without cause by giving you not less than 30 days’ written notice; or
• (b) terminate this Agreement with immediate effect on written notice to you if:
• (i) you fail to pay any amount due under this Agreement to Max Novus by the Due Date; or
• (ii) you undergo a change of control.

6.3 Suspension of Services: Without affecting any other right or remedy available to it, Max Novus may suspend the supply of Services under this Agreement or any other contract between you and Max Novus if:

• (a) you fail to pay any amount due under this Agreement by the Due Date; or
• (b) you become subject to any of the events listed in clauses 6.1(b) or Max Novus reasonably believes you are about to become subject to any of them.

6.4 Consequences of termination: On termination of this Agreement:

• (a) you will immediately pay to Max Novus all of Max Novus’s outstanding unpaid invoices and interest;
• (b) in respect of Services supplied but for which no invoice has been submitted, Max Novus may submit an invoice, which will be payable by you immediately on receipt;
• (c) you will return all of Max Novus’s materials and any Deliverables which have not been fully paid for. If you fail to do so, then Max Novus may enter your premises and take possession of them. Until they have been returned, you will be solely responsible for their safe keeping and will not use them for any purpose not connected with this Agreement.

6.5 Survival: Any provision of this Agreement that, expressly or by implication, is intended to come into or continue in force on or after termination or expiry of this Agreement will remain in full force and effect.

7. LIMITATION OF LIABILITY

7.1 Exclusion of certain losses: Neither party will be liable to the other party for any special, indirect or consequential loss arising under or in connection with this Agreement, including but not limited to any loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of or damage to goodwill or loss of use or corruption of software, data or information.

7.2 Maximum liability: Each party's total liability to the other party arising under or in connection with this Agreement will not exceed 100% of the total Fees paid by you to Max Novus in the 12-month period immediately preceding the event giving rise to the claim.

7.3 Consumer Guarantees Act: If you are a consumer within the meaning of the New Zealand Consumer Guarantees Act 1993, then nothing in this Agreement will limit your rights under that Act.

8. CONFIDENTIALITY

8.1 Confidential Information: Each party undertakes that it will not at any time during this Agreement, and for a period of five years after termination of this Agreement, disclose to any person any confidential information disclosed to it by the other party concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 8.2.

8.2 Permitted disclosure: Each party may disclose the other party's confidential information:

• (a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under this Agreement. Each party will ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 8; and
• (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

9. FORCE MAJEURE

9.1 Force Majeure event: Neither party will be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.

10. DISPUTE RESOLUTION

10.1 Good faith discussions: If any dispute arises in connection with this Agreement, the parties will attempt to resolve it in good faith by senior level discussions. If the dispute is not resolved within 30 days of it being referred to senior management, either party may initiate mediation.

10.2 Mediation: If the parties cannot resolve the dispute through good faith discussions, they will attempt to resolve it by mediation before having recourse to any other dispute resolution process.

11. GOVERNING LAW

11.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of New Zealand.

12. DEFINITIONS

12.1 Business Day: a day other than a Saturday, Sunday or public holiday in New Zealand when banks in Wellington are open for business.

12.2 Confidential Information: all information (in any form) designated as confidential by either party together with any information which relates to the business, affairs, developments, trade secrets, know-how, personnel, customers and suppliers of either party.

12.3 Customer: the individual, company or other legal entity that has engaged Max Novus to provide the Services.

12.4 Deliverables: any output of the Services to be provided by Max Novus to you and any other documents, products and materials provided by Max Novus in relation to the Services.

12.5 Fees: the charges payable by you for the supply of the Services in accordance with clause 3.

12.6 Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, topography rights, moral rights and any other intellectual property rights, in each case whether registered or unregistered and including all similar or equivalent rights or forms of protection in any part of the world.

12.7 Key Terms: the key terms set out at the beginning of this Agreement.

12.8 Services: the services provided by Max Novus to you as described in the Services Description.

12.9 Services Description: the description or specification of the Services provided in writing by Max Novus to you.

12.10 Specifications: the description or specification of the Services provided in writing by Max Novus to you.