OCTOZOO LIMITED

1. Definitions

Confidential Information means any information that is not public knowledge and that is obtained from the other party in connection with our supply of Services to you, including all Intellectual Property owned by us or our licensors including the Software.

Data means all data, content, and information owned, held, used or created by you, that is stored or inputted into the Services.

Fees means the amount payable by you for the supply of the Services and is in US Dollars (USD) and exclusive of GST unless otherwise stated.

Force majeure means an event that is beyond the reasonable control of a party, but excluding an event that could have been avoided by a party taking reasonable steps or care, or a lack of funds for any reason.

Intellectual Property includes copyright and all rights existing anywhere in the world conferred under statue, 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, and including any enhancement, modification, or derivative work of the intellectual property.

Octozoo Limited ("we," "us," or "our").

Personal Information has the meaning given in the Privacy Act 2020.

Software means the software owned by us (and our licensors), Application Processing Interface, and website that is used to provide the Services.

Software as a service Terms of trade (“Terms”)

Software Services (“Services”) means the tools supplied by us to assist development teams to develop high quality software, including but not limited to our cloud-based service platform, including any updates, features, and support services we may offer.

Underlying Systems means our software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems, and networks.

You or your means you as the customer/client

4. Fees and Payment

4.1 Fees: You agree to pay the fees for our Services ("Fees") pursuant to your pricing plan, as outlined under these Terms, and on our website (unless otherwise agreed).

4.2 Payment Terms: Our fees must be paid electronically, in cleared funds, without any set off or deduction. Unless otherwise agreed, our fees are payable as follows:

a) Payment will be due monthly in advance for our Services. At our discretion, we may choose to offer you an initial complimentary 30-day free trial.

c) Any outstanding Fees which we may invoice you on completion, termination, or suspension of the Services. Payment of the same will be due within seven (7) days following the date of the invoice, or as otherwise specified on our invoice.

4.3 Late Payments: If you fail to pay on time:

a) You acknowledge and agree that we may charge you interest on any amount you owe to Us after its due date at 2% per annum and expenses and costs incurred by Us as a result of Us enforcing any of our rights contained in these Terms of Trade including maintenance fees, debt collection and legal fees.

b) All payments You are required to make to Us under clause 4 are essential terms of these Terms and you acknowledge that if you fail to make any such payment to Us by its due date, then we have the right to suspend the provision of Services and We will not be liable for any loss or damage suffered by You or any third party as a result of such suspension. You further acknowledge that we are entitled to retain Your Data until payment is received in full.

4.4 Increases:

a) We retain the right to increase the Fees payable by you, without notice, if you utilise our Services in excess of agreed usage limits, or ‘fair use’ to be determined at our sole discretion but acting reasonably;

b) By giving you at least 30 days’ notice, we may increase the Fees payable by you. If you do not wish to pay the increased Fees then you are entitled to terminate your subscription by providing 20 days’ notice, provided the notice is received by us before the effective date of the Fee increase, otherwise you shall be deemed to have accepted the increased Fees.

5. Licence and Usage Restrictions

5.1 Grant of Licence:

(a) We grant you a non-exclusive, non-transferable, revocable licence to use the Services for your internal business purposes, more specifically for tracking purposes with the intent of improving your code coverage over time, and the use of reports which we generate for you as long as attribution is clearly provided, in accordance with these Terms and any terms of use on our Website which may be updated from time to time.

(b) You grant us a non-exclusive, non-transferable, revocable licence to access and use your source code as required by us to carry out the Services.

5.2 Restrictions: You may not:

(a) utilise our Services in excess of the agreed usage limits, or in excess of ‘fair-use’ to be determined at our sole discretion but acting reasonably;

(b) re-bundle the Services;

(c) reverse engineer or attempt to extract the source code;

(d) use the Services for unlawful purposes;

(e) sublicense, resell, or redistribute the Services to any third party, or otherwise commercially exploit the Services.

(f) Not attempt to undermine the security or integrity of the Software or Underlying Systems.

(g) Not use, or misuse the Services in any way which may impair the functionality of the Software or Underlying Systems, or the ability of any other user to use the Services;

(h) Not attempt to view, access, or copy any material or data, other than that which you are authorised to access, and as necessary for you to use the Services in accordance with these Terms, or use, transmit, input, or store any material or data which may breach any third party rights (including Intellectual Property or Personal Information).

5.3 The Start and End Date for the licence will be as agreed, but where no End Date is agreed prior to the Start Date, then the supply of Services will continue in effect until terminated by one of the parties in accordance with these terms.

6. Service Levels and Support

6.1 Availability: We will use reasonable efforts to ensure the Services are available on a 24/7 basis. However, on occasion the Services may be unavailable due to maintenance or other development activity, as a result of a third party service feature being unavailable, or in the event of Force Majeure.

6.2 Support: Technical support is available via email. Response timeframes will be as per your pricing plan.

6.3 Third party websites, fees, and service features: You acknowledge that our Services may link to third party websites, feeds, or service features that are connected or relevant to the Services. Any link does not imply Our endorsement, approval or recommendation of, or responsibility for, those websites, feeds or features or their content or operators. We may from time to time cease the availability of a third party feature (if for example this feature is no longer made available to us on reasonable terms). To the maximum extent permitted by law, we exclude all responsibility or liability for any third party websites, feeds or service features, and you will not be entitled to any compensation with respect to the same (including the removal of a third party service feature).

7. Intellectual Property, Data Ownership and Privacy

7.1 Your Data: You retain ownership of all data you input into the Services and grant us a worldwide, non-exclusive, fully paid-up, transferable, irrevocable licence to use, store, copy, modify, make available, and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations under these Terms.

7.2 Responsibilities:

a) We will handle Your Data in compliance with the Privacy Act 2020 and our Website host’s Privacy Policy. You acknowledge and agree that where Data contains Personal Information, we are acting as your agent for the purposes of the Privacy Act 2020 and any other applicable privacy law.

b) You warrant that you hold and shall retain all consents necessary for us to access, collect, use, hold, and process that information as necessary (including but not limited to in relation to Intellectual Property rights and Personal Information) for us to exercise our rights and perform our obligations under these Terms.. 7.3 You authorise and agree to us:

a) Using Your Data to generate statistical and analytical data, and feedback from you, from time to time for the use of our internal research, product development and statistical analysis (“Analytical Data”), and to supply Analytical Data to third parties.

b) Retaining Your Data (at our discretion) as security until such time that we have received all amounts owing by you to us

7.4 Indemnity: You indemnify us against any liability, claim, proceeding, cost, expense, or loss of any kind arising from any actual or alleged claim by a third party, that any Data infringes the rights of a third party (or is objectionable, incorrect, or misleading).

7.5 Data Backup: While we take reasonable precautions to protect Your Data, you are responsible for maintaining backup copies of Your Data.

7.6 Intellectual Property

(a) You acknowledge and agree that title to all Intellectual Property Rights in the Services, Website, and all Underlying Systems (along with Analytical Data) is and remains our (and our licensors) property.

(b) We grant you, and you grant us, a revocable licence to use any new intellectual property jointly created specifically for the purposes as set out under clause 5.1(a) & (b) of these Terms.

7.7 Confidentiality –

(a) Unless prior consent is obtained, each party must keep all Confidential Information of the other party confidential, and maintain adequate security systems for the keeping of Confidential Information.

(b) Notwithstanding, either party may disclose Confidential Information to its personnel and professional advisors on a need to know basis, so long as the persons disclosed are aware of and agree to comply with the Confidentiality provisions in these Terms.

(c) The Confidentiality terms above shall NOT apply where:

i) disclosure is required for a party to perform obligations or exercise their rights under these Terms, if required by law,

ii) the Confidential Information has already been made publicly available by the owner party of the Confidential Information, or a third party,

iii) the Confidential Information was received from a third party without restriction or breach of any confidentiality obligation, or

iv) where we are required to disclosed the Confidential Information as part of a sale of business (assets or shares), provided the purchasing party enters a confidentiality agreement in relation to the same.

8. Termination – shall be on the prior agreed End Date (if any), OR -

8.1 Either party may terminate: at any time by providing 30 days’ written notice.

8.2 We may terminate immediately:

a) If you breach these Terms or fail to pay any Fees due, where such breach is not remedied within 10 days of notice of breach being served, or if such breach in incapable of being remedied.

b) If you become insolvent, liquidated, bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee, or chargee’s agent appointed, becomes subject to any form of insolvency action, or external administration, or ceases to continue business; or

c) If we are unable to perform a material obligation under these Terms for 14 days or more due to Force Majeure.

8.3 Post-Termination:

a) Termination does not affect either party’s rights and obligations which accrued prior to termination.

b) You must pay all Fees for Services provided prior to Termination. We reserve the right to issue you with an invoice to reflect any costs and losses incurred by us, and a proportion of the Fees reflective of any termination prior to any agreed End Date.

c) Unless a party has ongoing rights to use Confidential Information, subject to request the other party’s Confidential Information must be returned or destroyed.

d) Your access to the Services will cease. You will have 30 days to request:

i) a copy of Your Data which will be supplied in a common electronic form, following payment of our reasonable costs of providing that copy; OR

ii) for Your Data to be deleted, in which case we will make reasonable efforts to promptly delete Your Data.

e) Notwithstanding the above, we may immediately restrict, suspend your access, or delete/edit/remove any Data in particular if we consider you have undermined or attempted to undermine the security of the Service of Underlying Systems, or attempted to use the Service for improper purpose, in a manner other than for normal operational purposes that reduces the operational performance of the Service, acted to breach (or in a way that may breach) any third party rights (including in relation to Data that breaches Intellectual Property, privacy, or may be objectionable, incorrect, or misleading, or otherwise materially breach any of the Terms.

f) Termination of Suspension of these Terms by us will not affect our rights at the time to claim any amount due to us by you, including any damages, losses, or costs suffered by us.

g) Clauses relating to Your indemnity to us (7.4), our Intellectual Property (7.6), Confidentiality (7.7), Limitation of our liability (9), Exclusions/limitations of warranties (10), Termination (8.3), Dispute Resolution (11) and Guarantee 12.1 within these Terms, are intended to survive Termination and will continue in force.

9. Limitation of Liability

9.1 To the extent permitted by law, in no event will We be liable to You for any loss (including but not limited to loss of profits or other economic loss, indirect, special, consequential, general or other similar damages) which You suffer or incur for any reason whatsoever including arising out of any breach of these Terms of Trade or obligations under these terms.

9.2 To the extent permitted by law, Our liability (if any) for any loss arising from a breach of any guarantees, conditions and warranties, or Terms, is limited to the total Fees paid by you in the preceding 12 months.

9.3 We shall not be liable for any delay or failure to perform Our obligations if the cause of the delay or failure is beyond Our control.

9.4 You indemnify Us against any loss which We suffer, incur or are liable for in connection with any breach of these Terms of Trade, or negligence, by You or with Us exercising Our rights under these Terms of Trade.

9.5 Both parties must take reasonable steps to mitigate any loss, damage, cost, or expense it may suffer arising out of anything done or not done by the other party or in connection with these Terms.

10. Warranties – other than any warranties expressly provided within these Terms, we provide the Services "as is" without warranties of any kind (including any warranty that the Services will meet your requirements or be suitable for a particular purpose, role or responsibility of yours), except those warranties mandated by New Zealand law.

10.1 Notwithstanding, if the Consumer Guarantees Act 1993 applies to the supply of Services, You have all of the rights and remedies provided under that Act. If We are supplying the Services to You for the purposes of trade or a business you agree that the provisions of the Fair Trading Act 1986, the Consumer Guarantees Act 1993 and any other applicable customer protection legislation do not apply to the extent permissible by law and to the maximum extent permitted by law our warranties are limited to those set out in these Terms of Trade, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Contract and Commercial Law Act 2017) are expressly excluded.

10.2 Where legislation or rule of law means such condition or warranty cannot be excluded, then it is deemed included in these Terms, however our liability for breach is limited to the total Fees paid by you in the preceding 12 months.

10.3 Any warranties which we provide you under these Terms, or which We are required to give at law, shall not cover any alleged fault of ours which may be caused or partly caused by or arise through:

a. Failure on Your part to comply with any of your obligations under these Terms.

b. Failure on Your part to follow any instructions or guidelines provided by Us in relation to the Services.

c. Any use of the Services after any fault becomes apparent or would have become apparent to a reasonably prudent person.

11. Dispute Resolution

11.1 The parties must use best efforts to resolve any dispute under, or in connection with, this Terms of Trade through good faith negotiations.

11.2 In the event that resolution by good faith negotiations is not achieved to the satisfaction of both parties within 30 days of the dispute arising, such dispute will be referred to mediation or to the Disputes Tribunal (as may be appropriate) for resolution.

11.3 In the event that resolution is not achieved through mediation then either party may choose to refer the dispute to arbitration in accordance with the provisions of the Arbitration Act 1996.

11.4 This clause does not affect either party’s right to seek urgent interlocutory and / or injunctive relief.

12.1 Where you are a company or trust, the director/s, trustee/s, or authorised person/s accepting these Terms, unconditionally guarantee as principal debtor, to us, the due and punctual payment by you of all moneys owing to us, and the due observance and performance by you of all of your obligations under these Terms, inconsideration for us agreeing to supply the Services to You.

12.2 Any notice given under these Terms must be given by email to the addresses set out in the Quote or as otherwise notified in writing. You may not assign or transfer your rights or obligations under these Terms to any other party without Our written consent. Any change of control of the Client is deemed to be an assignment for which the Supplier’s prior written consent is required under this clause. In this clause change of control means any transfer of shares or other arrangement affecting the Client or any member of its group which results in a change in the effective control of the Client. The Client remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.

12.3 We may subcontract or assign any of our rights or obligations under these Terms to any other party without Your written consent.

12.4 If any of these Terms are determined to be invalid, void, illegal or unenforceable, the remaining terms will remain valid and binding

12.5 These Terms are governed by the laws of New Zealand. Any disputes will be resolved under New Zealand jurisdiction.

12.6 These Terms apply to any current instruction and to any future instruction, whether or not we send you another copy of them. We reserve the right to amend these Terms at any time. Changes will take effect when published on our website. Continued use of the Services indicates acceptance of the revised Terms.