Terms of Use

 

IT IS AGREED:

A.   These Terms of Use (“Terms”) explain Nomos One’s obligations as a service provider and the Client’s obligations as a customer, in relation to the Nomos One contract management and lease accounting tool.

B.    These Terms are binding and apply to the Client from the earlier of the date the Client executes a Subscription and Services Agreement or the date the Client first has access to the System. They govern the Client’s use of the System for as long as the Client maintains access to the System.

C.   By registering for a Subscription the Client acknowledges and represents that the Client has read and understood these Terms and has the authority to act on behalf of any person for whom the Client is using the System. If the Client uses the System on behalf of any Entity, the Client is deemed to have agreed to these Terms on behalf of that Entity.

D.  These Terms were last updated on and are effective from 29 January 2021.

 

1. Definitions and Interpretation

1.1 Definitions: Unless the context requires otherwise, capitalised words shall have these meanings:

Additional Service means an additional service provided, or to be provided, by Nomos One under a Subscription and Services Agreement, or under a separate written contract between the Client and Nomos One, including:

(a)  Development Services, being the creation of a custom feature in the Service;

(b)  Onboarding Services, being the migration and loading of Client Data onto the Service; and

(c)  Portfolio Management Services, being an extra administrative service in relation to leases.

Agreement means any lease, sublease, licence, franchise agreement, easement, contract or other arrangement entered into the System, including any agreement which may be expired, surrendered, terminated or inactive within the System.

Authorised Person means a director, employee or agent of the Client, who, based upon their position within the Client’s organisation or relationship with the Client is assumed by Nomos One to have authority to bind the Client in relation to the Client’s Contract with Nomos One.

Business Day means any day other than a Saturday, a Sunday or a public holiday within New Zealand, between the hours of 8.30 am and 5 pm NZT.

Client means the Client named in the Subscription and Services Agreement.

Client Data means any data, content, and information (including personal information) inputted by the Client or a User, or with the Client’s authority into the System or Website and stored by the System including Agreements.

Commencement has the meaning provided in the Subscription and Services Agreement.

Confidential Information means all information of a confidential nature directly or indirectly made available or exchanged between the parties to the Contract, whether in paper form, electronically or orally, including through use of the System, including any personal information provided or received, the terms of the Contract, a party’s business information, employee, contractor and customer affairs and, in the case of the Client, all Client Data. However Confidential Information does not include any information which is, or becomes, publicly available without breach of the obligations under the Contract or which a party can prove it independently created or acquired.

Contract means the contract between the Client and Nomos One, comprising these Terms and any Subscription and Services Agreement between the Client and Nomos One, any other terms and policies referred to in clause 17.2, and any notice sent by Nomos One or condition posted on the Website referred to under clause 5.1.

CPI means the New Zealand consumer price index (All Groups) (a measure of domestic inflation) published by Statistics New Zealand (or any successor government agency, and any revised, replacement or substituted index).

Entity means any company or corporation, trust, limited partnership, partnership or firm, agency of any government or authority, public, territorial or regional authority, or other incorporated or unincorporated body of persons.

Fee means any amount payable by the Client under the Contract, including any Subscription Fee, onboarding fee and other amounts under a Subscription and Services Agreement.

Insolvency Event in relation to a party means:

(a) it is, becomes, or is deemed to be, insolvent or bankrupt;

(b) it makes an assignment for the benefit of, or enters into, or makes any arrangement or composition with, its creditors;

(c) it goes into receivership or has a receiver, trustee and manager (or either of them) (including a statutory manager) appointed in respect of all or any of its property; or

(d) any resolution is passed, or any proceeding is commenced, for its winding up or liquidation (other than for the purposes of a solvent reconstruction).

Intellectual Property Right means any current and future intellectual property rights, whether registered or unregistered (including applications, and the right to apply, for any intellectual property rights), existing anywhere in the world under statute, common law or equity, including copyright, design rights, trademarks, service marks, trade names, domain names, rights in logos and get-up, patents, inventions, confidential information and know-how, all rights in computer software, design, privacy, and databases.

Nomos One means the Nomos One Entity that is listed as a party to the Subscription and Services Agreement.

Onboarding Service means the initial migration and loading of Client Data onto the System further described in the Subscription and Services Agreement.

Organisation means a self-contained structure within the System which stores the Client’s leasing portfolio and Client Data.

Related Entity means any company, corporation, or other Entity that controls, is controlled by, or is under common control with, a party.

Subscription means a subscription to use the System, subject to payment of the applicable Fee, with such subscription recorded in a Subscription and Services Agreement.

Subscription and Services Agreement means a subscription and services agreement between the Client and Nomos One that refers to, and is to be read in accordance with, these Terms.

Subscription Fee means the monthly fee payable by the Client for the Subscription, as set out in the applicable Subscription and Services Agreement, as adjusted under clause 6.8 and/or clause 14.1.

Support means the assistance provided by the Nomos One Support Service, further described in the Subscription and Services Agreement.

System means the Nomos One contract management and lease accounting tool (as updated from time to time in accordance with the Subscription and Services Agreement) provided under the Client’s Subscription and accessed and used using the Client’s login name and password.

User means each employee, agent, professional advisor, or contractor of the Client (or a Related Entity of the Client) who is registered to use the System from time to time.

Website means the Internet site at the domain www.nomosone.com, or any alternative site operated by Nomos One, as notified to the Client from time to time.

1.2  Interpretation: Unless the context requires otherwise, in the Contract:

(a) the headings in the Contract are for convenience only and have no legal effect;

(b) the singular includes the plural and vice versa;

(c) “including”, “such as” and similar words do not imply any limit;

(d) words denoting any gender include all genders; and

(e) monetary references refer to the currency that is listed in the Client’s Subscription and Services Agreement.

1.3  Precedence: If there is any conflict between the terms of the Contract, the following order of precedence will apply:

(a) any variation to the Contract agreed in writing;

(b) the terms of the Subscription and Services Agreement;

(c) these Terms; and

(d) other terms and policies referred to in clause 17.2.

 

2.   REGISTRATION FOR THE SYSTEM

2.1  Process for Client registration: To request registration to use the System the Client must provide Nomos One with:

(a) a duly executed copy of a Subscription and Services Agreement in the then-current form approved by Nomos One;

(b) the Client’s email address;

(c) the Client’s billing details; and

(d) other information requested by Nomos One, which may include the Client’s legal name, physical address and phone number.

2.2  Confirmation of Client registration: Following Nomos One’s receipt and approval of all required information, Nomos One will return a duly executed copy of a Subscription and Services Agreement to the Client and confirm Commencement of the Client’s Subscription using one of the Client’s email addresses provided.

2.3  Consents: The Client consents to:

(a) receive emails and newsletters from Nomos One about updates, downtime and other information about the System and the Website;

(b) receive emails and newsletters from Nomos One with the latest news, industry updates, information about additional products, resources and events, which can be unsubscribed from;

(c) provide access to a user maintained by Nomos One to all of the Client’s Organisations in the System to enable Nomos One to provide Support (at the Client’s request) and to allow for accurate billing; and

(d) being contacted via phone or email about their experience of Nomos One, the quality of the product and the service received.

2.4  User management by Client administrators: The System enables the Client to appoint administrators who can register individuals as Users who will be entitled to access and use the System through the Client’s Subscription. Those administrators are responsible, on behalf of the Client, for:

(a) creating, maintaining, and deleting the User accounts; and

(b) obtaining necessary consents from those individuals for their personal information to be associated with their User account.

 

3.  AUTHORISED PERSON

3.1  Authorised Person: Where an Authorised Person registers for the System on behalf of the Client, or elects to renew, modify or terminate the Contract on behalf of the Client, that person warrants, undertakes, and represents that they have authority from the Client to agree to the Contract on behalf of the Client and to access information and give instructions on the Client’s behalf in relation to the Contract.

3.2  Bound to performance: By registering to use the System on behalf of the Client, an Authorised Person binds the Client to the performance of any and all obligations (including payment obligations) of the Client under the Contract.

3.3  Instructions received: Nomos One may rely upon and act in accordance with any instructions received from an Authorised Person, as if they had been made by the Client and without checking the authority of an Authorised Person.

 

4. USE OF THE SYSTEM

4.1  Grant of access: Nomos One grants the Client the right to access and use the System via the Website in accordance with the Client’s Subscription. This right of use is non-exclusive, subject to the Contract.

4.2  Supported browser: The Client is permitted to access and use the System via the supported web browser, being the current version of Google Chrome.

4.3  New Organisation: The Client cannot create new Organisations within the System. To create a new Organisation, the Client must contact Nomos One, who will create a new Organisation within the System on the Client’s behalf.

4.4  Client requests: Nomos One has the right to action any request from a User in relation to Client Data within the System. Nomos One may rely upon and act in accordance with any instructions received from a User in relation to Client Data as if they had been made by the Client and without checking the authority of the User, unless:

(a) the User is requesting that they be provided administrative privileges within an Organisation;

(b) a read-only User is requesting that they be provided the ability to modify Agreements within an Organisation; or

(c) an Authorised Person has provided Nomos One with an approval list in accordance with clause 4.5, and the User is not included in that list.

4.5  Approval list: An Authorised Person can provide Nomos One with an exclusive list of Users whose instructions Nomos One may rely upon and act in accordance with.

4.6  Provision of access: If Nomos One receives a request from any of the Client’s agents or employees to create a User within the System and be provided access to the Client’s Organisations to view and modify Client Data, Nomos One reserves the right to action this request without checking the authority of the employee or agent. For practical purposes, the Client’s agents or employees will be defined as any individual with an email domain bearing the Client’s name or who is known to Nomos One to be acting as the Client’s agent. If an Authorised Person has provided Nomos One with an approval list in accordance with clause 4.5, no access will be provided to an employee or agent unless they are included in that list.

 

5.  THE CLIENT’S OBLIGATIONS

5.1  Internal business use only: The Client must only use the System and Website for the lawful internal business purposes of the Client or a Related Entity of the Client, and only in accordance with the Contract and any notice sent by Nomos One or condition posted on the Website. The Client must not use, nor allow any person (including any User) to use, the System and Website for any other purposes.

5.2  Users:

(a) the Client is responsible for determining who can be a User and what level of access to the System each User has. The Client must ensure that each User account is allocated to and used by only one person at any time.

(b) the Client is responsible for all Users’ use of the System. Nomos One has no responsibility or liability for the actions of any User, but is responsible for ensuring Nomos One’s own personnel act in accordance with the Contract.

(c) Nomos One will not be a party to any dispute between a Client and a User for any reason.

5.3  Usernames and passwords: The Client must ensure that all usernames and passwords required to access the System are kept secure and confidential. The Client must ensure that all Users select their passwords using strong password criteria. The Client must immediately notify Nomos One of any unauthorised use of their password (or any of the Client’s Users’ passwords), the System or the Website, or any other breach of security, and the Client must take all actions that Nomos One reasonably deems necessary.

5.4  Access conditions: When accessing and using the System or the Website, the Client must:

(a) not attempt to undermine the security or integrity of Nomos One’s computing systems or networks or, where the System is hosted by a third party, that third party’s computing systems and networks;

(b) not use, or misuse, the System in any way which may impair the functionality of the System or Website, or other systems used to deliver the System or impair the ability of any other User to use the System or Website;

(c) not attempt to gain unauthorised access to any materials other than those to which the Client has been given express permission to access or to access the computer system on which the System is hosted;

(d) not transmit, or input into the Website, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or Client Data in violation of any law or third party’s rights;

(e) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the System or to operate the Website except as permitted by law;

(f) ensure that no User accesses the System from more than one device at any one time; and

(g) comply with other reasonable directions of Nomos One.

 

6. FEES AND PAYMENT

6.1  Initial Fee: The Client must pay:

(a) any onboarding fee to Nomos One in full by the due dates specified in the Subscription and Services Agreement (or if no date is specified, by the Commencement of the Subscription); and

(b) the Client’s first month’s Subscription Fee to Nomos One in full by the Commencement of the Subscription.

6.2  Subscription Fee: The Client agrees to pay, on a monthly basis, all Subscription Fees incurred during the term of its Subscription at the amount specified in its Subscription and Services Agreement, as adjusted from time to time under clause 6.8 and/or clause 14.1.

6.3  Invoicing: The Client authorises Nomos One to invoice and receive payment from the Client in advance for the Subscription Fee on a monthly basis in accordance with the Subscription and Services Agreement. All billing is calculated on the basis of whole calendar months. Payment of each invoice is due on the 20th of each month.

6.4  Payment: The Client will pay the Subscription Fee by direct credit, direct debit, or electronic funds transfer. Nomos One may require the Client to provide alternative payment methods. In supplying the Client’s bank account details to Nomos One’s payment service, the Client authorises Nomos One to invoice and the payment service provider to process payment of the Client’s Subscription Fee and any other outstanding amounts (as applicable) as they become due. The Client agrees to pay all Fees and currency charges incurred or associated with completing payments so that Nomos One receives the full amount invoiced.

6.5  Interest: The Client must pay interest on any overdue amounts, at a rate equivalent to the monthly business interest rate of the Reserve Bank of New Zealand.

6.6  Alternative method: If the Client’s payment by one payment method fails, the Client acknowledges that Nomos One is authorised by the Client to take payment from the alternative payment method the Client has provided.

6.7  Taxes: The Fees are exclusive of all applicable taxes, duties, and levies (“taxes”). The Client agrees to pay all applicable taxes at the relevant rate, upon invoice, in addition to the Fees, whether such applicable taxes are invoiced at the same time as the Fees or subsequently.

6.8  Adjustment: Where Nomos One agrees to add new services or functionality to the Client’s Subscription, Nomos One will agree with the Client any additional costs payable by the Client for those new services or functionality. Those agreed additional costs will either be invoiced and payable by the Client as a one-off amount or added to the Client’s Subscription Fee on an ongoing basis.

 

7. UPTIME AND SUPPORT

7.1 Uptime: The System is managed to have an uptime target of 99.5%, excluding planned outages.

7.2  Planned outages: The System may be changed or updated from time to time by Nomos One. If for any reason Nomos One has to interrupt the System for longer periods than Nomos One usually anticipates, meaning an interruption of over one hour, Nomos One will use all reasonable endeavours to publish in advance details of such activity by email or on the Website.

7.3  Unplanned outages: The System may, from time to time, experience technical issues which prevent the Client from being able to reliably access the System. In these circumstances, Nomos One will inform the Client of this outage within a reasonable timeframe following the identification of the outage by Nomos One. Nomos One will undertake all reasonable endeavours to keep the Client notified of any work being undertaken to resolve the issue during the outage period. Notice will also be provided to the Client following the resolution of this outage.

7.4  Technical problems: In the case of technical problems the Client should make all reasonable efforts to investigate and diagnose problems before contacting Nomos One. If the Client still needs technical help, please check the Support provided online by Nomos One on the Website or contact the helpdesk at:

(a) email: support@nomosone.com; or

(b) telephone:
0800 002 332 (for New Zealand Clients)
1800 012 222 (for Australian Clients)
+64 3 470 1912 (for international Clients)

7.5  Minor technical problem: Where the technical fault only has a minor effect on the function of the System or there is a viable workaround, or where the fault is a cosmetic fault, Nomos One may elect to fix such fault by way of an update when available.

7.6  Support: Support will be available from the helpdesk from 9:00am until 5:00pm Monday to Friday NZT/AEST excluding New Zealand public holidays.

 

8.  WARRANTIES AND ACKNOWLEDGEMENTS

8.1  Acknowledgements: The Client acknowledges that:

(a) the Client is responsible for authorising any person who is given access to information or Client Data, and the Client agrees that Nomos One has no obligation to provide any person access to such information or Client Data without the Client’s authorisation and may refer any requests for information to the Client to address;

(b) the Client may not access the System or Website on behalf of another Entity except when acting on behalf of a Related Entity;

(c) Nomos One is not the Client’s accountant and use of the System does not constitute the receipt of accounting, financial or tax advice;

(d) Nomos One is not the Client’s lawyer and use of the System does not constitute the receipt of legal advice;

(e) the Client remains solely responsible for complying with all applicable accounting, tax and other laws. It is the Client’s responsibility to check that storage of and access to Client Data via the System and the Website will comply with laws applicable to the Client (including any laws requiring the Client to retain records); and

(f) it is the Client’s sole responsibility to determine that the System meets the needs of the Client’s business and is suitable for the purposes for which it is used.

8.2  Warranties: Nomos One warrants that the System will substantially conform with the functionality described on its website and be generally accessible over the Internet. The provision of, access to, and use of, the System is otherwise on an “as is” basis and at the Client’s own risk. All implied conditions or warranties are excluded to the extent permitted by law, including warranties of merchantability, fitness for purpose, title, and non-infringement. Nomos One does not warrant that the use of the System will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the System (including public telephone services, computer networks and the Internet) can be unpredictable and may from time to time interfere with or prevent access to the System. Nomos One is not in any way responsible for any such interference or prevention of the Client’s access or use of the System.

8.3  Third party services and customisations: The Client acknowledges that:

(a) Nomos One does not warrant the operation, performance or functions of any third-party services that Nomos One integrates into, nor the performance of the integration; and

(b) any customisation that may have been performed for the Client is not guaranteed to be compatible with any updates to the System, hardware, application or set-up and that any such customisations are not guaranteed to continue to work after any upgrade of the System by Nomos One.

8.4  Representation: The Client represents and undertakes that it is authorised to use and access the information and Client Data that it inputs into the Website and System, including any information or Client Data input into the System by any person the Client has authorised to use the System.

 

9.  CONFIDENTIALITY

9.1  Confidentiality: Each party shall keep the other party’s Confidential Information confidential and secure and not use or disclose, or permit the Confidential Information to be used or disclosed, without the other party’s consent. It will not be a breach of this clause for a party to use or disclose the other party’s Confidential Information to the extent required to be disclosed by law or to perform its obligations under the Contract.

9.2  Privacy: Nomos One maintains a privacy policy at www.nomosone.com that sets out the parties’ obligations and rights in respect of the collection, use, and disclosure of personal information.

9.3  Obligations under law: All parties and Users of the System must comply with all applicable privacy and data protection laws.

9.4  Role as processor: Where Nomos One processes personal information in accordance with Client instructions (including instructions conveyed through an administrator’s actions), the Client:

(a) remains the sole owner and data controller of such personal information;

(b) will be responsible for the legality of the data processing and observing the rights of the data subjects;

(c) may from time to time enter into one or more specific agreements regarding treatment of personal information, as requested by Nomos One; and

(d) indemnifies Nomos One against any and all claims, loss, or liability suffered or incurred by Nomos One as a result of such processing.

 

10.  CLIENT DATA

10.1  Security: Nomos One is committed to maintaining the security of Client Data. Nomos One will implement and maintain reasonable and robust safeguards and administrative, physical, and technical measures in the System that are designed to:

(a) protect the security and integrity of Client Data; and

(b) guard against unauthorised access, use, loss or disclosure of Client Data.

10.2  Backup: Nomos One adheres to policies and procedures intended to prevent data loss, including creating periodic back-ups of Client Data, but Nomos One does not make any guarantees that there will be no loss or corruption of Client Data.

10.3  After termination: Following the expiry or termination of the Client’s Subscription, the following shall apply:

(a) Nomos One will delete all Client Data, save for Client Data or any Confidential Information required to be retained for a legal or regulatory purpose; or for a legitimate purpose (such as administrative, billing, auditing requirement) or for the purpose of analysis (in an aggregated or anonymised format);

(b) once Client Data is deleted it cannot be recovered;

(c) Nomos One carries no liability for deleted Client Data; and

(d) the Client may request a copy of Client Data stored in the System, which Nomos One will provide in a standard format reasonably selected by Nomos One. This request must be made within 10 Business Days of the expiry or termination, and may take up to 30 days to process.

 

11.  INTELLECTUAL PROPERTY

11.1  Existing Intellectual Property Rights: Except as expressly set out in the Contract, nothing in the Contract will confer upon a party any rights, interest or title in the other party’s Intellectual Property (including any modification to such Intellectual Property) existing at the date of the Contract or which is developed independently of the other party’s Intellectual Property.

11.2  Nomos One’s Intellectual Property Rights: The Client acknowledges and agrees that any and all Intellectual Property Rights in and to the System, including any Intellectual Property Rights developed under or in relation to the Contract, are held or owned by Nomos One or its licensors.

11.3  The Client Data: Nothing in the Contract transfers ownership of Client Data. Nomos One has no Intellectual Property Rights in Client Data, except as provided in the Contract. The Client grant Nomos One an irrevocable, royalty-free, sub-licensable licence to use, copy, transmit, store, and back-up Client Data for the purpose of, or relating to, providing the System or performing the Contract.

11.4  Infringement: The Client must promptly inform Nomos One if it becomes aware of any actual, suspected, alleged, or threatened breach of the System or of Nomos One’s Intellectual Property Rights in relation to the System.

 

12.  LIABILITY

12.1  No liability except for breach: To the maximum extent permitted by law, neither party has liability to the other party except for breach of the Contract, irrespective of whether such liability arises in contract, tort (including negligence), or otherwise.

12.2  Authorised Person: Nomos One is not liable in respect of any act or omission of Nomos One in reliance on any notice or instructions given by any Authorised Person or User.

12.3  Exclusions: In no event will either party be liable for any special, incidental, consequential or punitive loss or damage. Without limiting the foregoing exclusions, neither party has or will have liability:

(a) for any loss or corruption of information, loss or corruption of Client Data, the cost of recovering such data or information;

(b) for any loss of profits, revenue, savings, goodwill, business or anticipated business, or reputational damage;

(c) for any accounting matter, including any error or mistake relating to IFRS 16; or

(d) arising from use of, reliance on, or inability to use or rely on, the System.

Nomos One will not have any liability to the extent caused or contributed to by any failure by the Client to comply with the Contract.

12.4  Limitation of Liability: To the maximum extent permitted by law, the maximum aggregate liability of either party is limited to the equivalent of 12 months’ Subscription Fees. This limit of liability applies in respect of any one incident, or any series of connected incidents.

 

13.  INDEMNITY

13.1  Client indemnity: The Client indemnifies Nomos One against all expenses, fines, losses (including loss of revenue and profit), damages and costs (“Loss”) sustained or incurred by Nomos One arising directly or indirectly from the Client’s breach of the Contract or fraud or wilful misconduct, including any costs relating to the recovery of any Subscription Fees that are due but have not been paid by the Client. Without limiting the forgoing, the Client indemnifies Nomos One against any claims or Loss relating to:

(a) Nomos One’s refusal to provide any person access to the Client’s information or Client Data in accordance with the Contract;

(b) Nomos One’s making available information or Client Data to any person with the Client’s authorisation; or

(c) any claim by any third party that the Client does not have the right to use any Client Data, or that the Client’s use of any Client Data is a breach of a third party’s Intellectual Property Rights.

 

14.  RENEWAL AND TERMINATION

14.1  Holdover: Upon expiry of the current term, the Subscription will automatically renew for a holdover term of 90 days, on the same terms as the previous Subscription, with the following exceptions:

(a) the Subscription Fee will increase in accordance with the percentage change in CPI since the most recent adjustment of the Subscription Fee, or, for the first adjustment, since Commencement of the Client’s Subscription;

(b) either party may terminate the Subscription by giving at least 30 days’ written notice to the other, with the termination to take effect at the end of the calendar month; and

(c) if neither party terminates the Subscription or signs an agreement to renew the Subscription within the holdover period, the Subscription will continue to automatically renew for 90 day terms, until an agreement to renew the Subscription is signed or the Subscription is terminated by either party.

14.2  Termination during minimum term: If the Client’s Subscription is subject to a minimum term (meaning a term specified in the Subscription and Services Agreement or determined under clause 14.1), the Client’s Subscription will continue for the applicable minimum term (plus any renewals) unless:

(a) Nomos One terminates under clause 14.4; or

(b) the Client terminates its Subscription by giving Nomos One at least 30 days’ written notice.

If the Client terminated under clause 14.2(b) or under clause 14.4, the Client must pay Nomos One all relevant Subscription Fees that would have become payable up to and including the end of the minimum term (plus any renewals). The parties agree that the purpose of the payment term in this clause 14.2 is to compensate, reflecting the minimum term arrangement, and is not intended to be punitive.

14.3  Termination for convenience: If the Client’s Subscription is not subject to a minimum term (meaning a term specified in the Subscription and Services Agreement or determined under clause 14.1), either party may terminate the Client’s Subscription for convenience by giving written notice to the other party at least 30 days before the end of a calendar month. The Client’s Subscription will then terminate at the expiry of that calendar month. If the Client terminates the Client’s Subscription for convenience pursuant to this clause 14.3, the Client is liable to pay all relevant Subscription Fees up to and including the end of the calendar month in which the Client’s Subscription was terminated.

14.4  Termination for insolvency or breach: If a party suffers an Insolvency Event, or is in breach of any of its obligations under the Contract and that breach:

(a) is material and cannot be remedied; or

(b) has not been remedied 10 Business Days after notice is given requiring the breach to be remedied,

then the dispute resolution process outlined in clause 16 shall commence.

14.5  Suspension for the Client’s breach: If the Client causes a breach, or a breach occurs in relation to the Client, Nomos One may, at Nomos One’s sole discretion, immediately take any or all of the following actions for as long as the breach sustains:

(a) suspend for any definite or indefinite period of time, the Client’s use (or any of the Client’s Users’ use) of the System and the Website; or

(b) take any of the actions in subclause (a) of this clause 14.5 in respect of any or all other persons whom the Client has authorised to have access to the Client’s information or Client Data.

 

15.  CONSEQUENCES OF TERMINATION

15.1  General: On termination or expiry of the Client’s Subscription this Contract terminates and the Client:

(a) must immediately cease using the System;

(b) will remain liable for, and must pay within 10 Business Days, any accrued Fees and amounts which become due for payment before or after termination or expiry; and

(c) must within 10 Business Days pay all Fees and amounts referred to in clause 14.2, where that clause applies.

15.2  User accounts: If the Client’s Subscription expires or is terminated, the User accounts of all associated Users will have their access to Client Data on the System terminated.

15.3  Accrued rights: Termination or expiry of the Client’s Subscription is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination or expiry.

15.4  Survival: Clauses 1, 3, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 survive the expiry or termination of the Client’s Subscription.

 

16.   DISPUTE RESOLUTION

16.1  General: Any disputes between the parties will be discussed in the spirit of goodwill. If a party has any dispute in connection with the Contract:

(a) that party will promptly give full written particulars of the dispute to the other; and

(b) the parties will promptly meet (including by phone or video conference) and try to resolve the dispute.

16.2  Mediation: If the parties are unable to resolve the dispute through discussion and negotiation within 10 Business Days of the date of the notice of the dispute, then the parties may agree to refer the dispute to mediation in the country set out in clause 17.3.

16.3  Continuing performance: Without restriction to clause 14.5 or 16.5, the parties will continue to perform their obligations under this Contract until the dispute is resolved.

16.4  Urgent action: Nothing in this clause 16 precludes either party from taking immediate steps to seek urgent interlocutory or equitable relief.

16.5  Termination: If a resolution to a dispute is not found within 30 days following a notice provided pursuant to clause 16.1, either party may provide written notice that the Subscription is terminated with immediate effect.

 

17.   GENERAL

17.1  Entire agreement: The Contract, together with any variations agreed between the parties in writing, constitutes the entire agreement between the parties and supersede all prior communications, representations, agreements or understandings, either verbal or written, between the parties with respect to the subject matter of the Contract.

17.2  Additional terms and policies: Nomos One may publish additional terms and policies related to specific services such as applications for mobile devices, forums, contests or loyalty programs. The Client’s right to use such services is subject to those specific terms and policies.

17.3  Governing law and jurisdiction: If the Client is contracting with:

(a) NomosOne Limited (a limited liability company incorporated in New Zealand), the Client submits to the exclusive jurisdiction of the courts, and to the laws, of New Zealand; or

(b) Nomos One Pty Ltd (an Australian registered company), the Client submits to the non-exclusive jurisdiction of the courts, and to the laws, of New South Wales, Australia.

17.4  Changes to these terms: Nomos One may change these Terms at any time. Nomos One will make all reasonable endeavours to communicate these changes to the Client via email or notification via the Website or System. The Client is responsible for reading and understanding the then-current Terms. If the Client reasonably consider a material change to these Terms will have a material adverse effect on the Client, then the Client may advise Nomos One of this in writing within 30 days after the changed Terms came into effect. In this case, Nomos One may, acting reasonably, allow the Client to terminate the Client’s Subscription, with Nomos One waiving the Client’s obligation to pay future Subscription Fees under clause 14.2.

17.5  Rights of third parties: Nomos One has no responsibility to any person other than the Client. A person who is not a party to the Contract has no right to benefit under or to enforce any term of the Contract.

17.6  Delays: Neither party will be liable for any delay in meeting, or failure to meet, its obligations under the Contract (other than an obligation to pay money) to the extent that such delay or failure is caused by any event outside its reasonable control (including any delay or failure caused by any act or omission to the other party).

17.7  Force majeure: Neither party will be liable for a delay or failure to perform any obligation (excluding any payment obligation) caused by an event that is beyond its reasonable control (including but not limited to a pandemic, strike, lock-out, other industrial dispute (whether involving the workforce of the party or any other party), failure of a utility service, telecommunications network or service of a third party subcontractor, malicious damage, virus, compliance with any law or governmental order, rule, regulation or direction or act of nature), provided that party takes all reasonable efforts to rectify the issue.

17.8  Electronic communications: Applicable laws require that some of the information or communications Nomos One sends to the Client should be in writing. The Client accepts that communication with Nomos One will mainly be by electronic means and agrees to this. The Client acknowledges and agrees that all contracts, invoices, notices, information and other communications that Nomos One provides to the Client electronically comply with any legal requirement that such communications be in writing.

17.9  Assignment: The Client may not assign, pledge or transfer any rights, duties or obligations in the Contract to any other person except with Nomos One’s prior written consent (not to be unreasonably withheld or delayed). A change in the Client’s effective ownership or control will be deemed to be an assignment for the purpose of this clause.

17.10  Waiver: No failure or delay by any party in exercising any right, power or privilege under the Contract will operate as a waiver. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

17.11  Severability: If any provision of the Contract is, or becomes, unenforceable, illegal or invalid for any reason the relevant provision shall be deemed to be modified to the extent necessary to remedy such unenforceability, illegality or invalidity or if this is not possible then such provision shall be severed from the Contract, without affecting the enforceability, legality or validity of any other provision of the Contract.

17.12  Notices:

(a) all notices given by a party under the Contract must be in writing and delivered by electronic means;

(b) a notice sent by email is effective on transmission, provided that any communication received or deemed received after 5 pm or on a day which is not a Business Day is deemed not to have been received until the next Business Day;

(c) notices to Nomos One must be sent to support@nomosone.com or to any other email address notified by email to the Client by Nomos One; and

(d) Nomos One may send notices to the Client using the email address that the Client provided when requesting registration for the System. The Client expressly consents to all contract, invoices, notices, information and other communications that Nomos One provides to the Client, being sent to that email address (and any further addresses the Client advises to Nomos One).

V2 – 29.01.21