Terms and Conditions

1.1 Definitions

In this Statement of Work or Proposal, unless the context otherwise requires:

“Background IP” has the meaning given in clause 7.1.

“Client” means the person specified at the front of this Statement of Work to whom the Services are being supplied to under this Statement of Work.

“Confidential Information” means all information the Providing Party may provide to the Receiving Party whether before or after the date of this Statement of Work.

“End Date” means:

1. the end date specified at the front of these Terms and Conditions; or
2. if no such end date is specified, the date of completion of the Services.

“Feedback” has the meaning given in clause 7.2(c).

“GST means goods and services tax chargeable pursuant to the Goods and Services Tax Act 1985.

“Intellectual Property” means any item in which Intellectual Property Rights subsist.

“Intellectual Property Rights” means any and all rights to and interests in or protecting (anywhere in the world) any industrial or intellectual property of any kind, whether or not in a material form, including copyright and future copyright, trade marks, design rights, patents (or similar), all rights relating to confidential information, names, brands, inventions, works, databases, designs and circuit layouts.

“Law” means any Act of Parliament, regulation, by-law, order, code, licence, permit, approval, regulatory instrument or any other subordinate instrument, or any other legally binding direction or requirement.

“New IP” has the meaning given in clause 7.2.

“Personnel” means, in respect of a party, that party’s employees, contractors, representatives and agents.

“Providing Party” has the meaning given in clause 5.1(a).

“Quanton” means Quanton Limited (Company number 5926771).

“Receiving Party” has the meaning given in clause 5.1.

“Services” means the services to be supplied by Quanton to the Client as specified at the front of this Statement of Work.

“Start Date” means the start date specified at the front of these Terms and Conditions.

“Statement of Work” includes the front pages to these Terms and Conditions and these Terms and Conditions.

“Terms and Conditions” means these Terms and Conditions.

“Working Day” means a day on which registered banks are open for business in Auckland, New Zealand which is not a Saturday, Sunday or public holiday.

1.2 Interpretation

Unless the context otherwise requires, or as specifically provided otherwise, in the interpretation of this Statement of Work:

1. headings are to be ignored;
2. references to clauses are to those in these Terms and Conditions;
3. the singular includes the plural and vice versa;
4. a reference to a person includes an individual, firm, company, corporation or unincorporated body of persons, or any governmental or regulatory authority, in each case whether or not having separate legal personality, and a reference to a company includes a person;
5. references to all or any part of a statute, rule or regulation (“statute”) are to New Zealand statutes and include that statute as amended, consolidated, re-enacted or replaced at any time;
6. references to monetary amounts are to New Zealand dollars unless otherwise specified.

2.1 Term

Unless terminated earlier in accordance with these Terms and Conditions, a Statement of Work starts on the Start Date and ends on the End Date.

3.1 Fees

The Client must pay the fees set out in this Statement of Work in accordance with the payment terms set out in this Statement of Work.

3.2 Payments

All payments must be made by the Client in full without any set off, withholding or other deduction.

3.3 GST

The fees under this Statement of Work exclude GST, which the Client must pay on taxable supplies.

3.4 Overdue amounts

If the Client defaults for any reason in payment of any amount on the due date (time being strictly of the essence), the Client must pay to Quanton, on demand, interest at a rate of 12% per annum, calculated by Quanton on a daily basis on the amount so unpaid from the due date until payment. Charging of this interest will not limit any of Quanton’s other rights or remedies under this Statement of Work or otherwise in respect of the Client’s default.

4.1 Acknowledgements

The Client agrees to, and acknowledges, the following:

1. it will provide Quanton will any information Quanton reasonably requires to be able to provide the Services in a timely manner, and Quanton will not be liable for any failure to provide, or delay in provision of, the Services if the Client fails to comply with the foregoing;
2. Quanton uses automation, artificial intelligence tools and algorithms to support and assist it to provide the Services (including, but not limited to, in respect of research, training, administration, operations and developing outcomes);
3. Quanton will record meetings with the Client to assist it to provide the Services to the Client, and to assist with training of Quanton’s Personnel;
4. while Quanton will use all reasonable endeavours to keep secure the information provided to it by the Client, Quanton stores such information on its systems, and also uses third party providers to store data, and Quanton cannot guarantee such storage systems will be free from cyber-attack and inadvertent disclosure in connection with that attack;
5. it has not relied on any representation made by Quanton which has not been expressly stated in this Statement of Work; and
6. the Services are being acquired for business purposes, and the Consumer Guarantees Act 1993, and sections 9, 12A, and 13 of the Fair Trading Act 1986, do not apply to this Statement of Work.

5.1 Confidentiality

Subject to clause 5.2, each party (the “Receiving Party”) will:

1. keep the other party’s (the “Providing Party”) Confidential Information confidential and secure;
2. not disclose or permit disclosure of the Providing Party’s Confidential Information to any third party except to enable the Receiving Party to perform its obligations, or receive any benefit under this Statement of Work, in which case the Receiving Party will not disclose such information until the third party has entered into a confidentiality agreement under which the third party agrees:
   1. to be bound by the provisions of this clause 5; and
   2. such agreement is also entered into for the benefit of the Providing Party; and
3. ensure that any of the Receiving Party’s Personnel with access to any of the Providing Party’s Confidential Information will be subject to the same obligations as the Receiving Party and the Receiving Party will take all reasonable steps to ensure that the Receiving Party’s Personnel are made aware of, and perform such obligations, and the Receiving Party will be liable to the Providing Party for any failure by such Personnel to comply with such obligations.

5.2 Exceptions

Clause 5.1 will not apply to any disclosure of Confidential Information:

1. required to be disclosed by Law;
2. that the Providing Party agrees to being disclosed in writing before the disclosure is made;
3. is or becomes publicly available through no fault of the Receiving Party;
4. is independently acquired or developed by the Receiving Party without breaching any of its obligations under this Statement of Work or at Law, and without the benefit or use of any of the Providing Party’s Confidential Information disclosed by the Providing Party; or
5. is lawfully acquired by the Receiving Party from a third party, provided such information is not obtained as a result of a breach by that third party of any confidentiality obligations owing to the Providing Party.

5.3 Announcements

The Client must not make any public statements to anyone about this Statement of Work (including the existence, subject matter and/or contents of this Statement of Work) without Quanton’s prior written approval.

5.4 Expiry or termination

Upon the expiry or earlier termination of this Statement of Work, each party will, as soon as reasonably practicable but in any case within 20 Working Days of such expiry or termination:

1. return to the Providing Party (without keeping or making a copy); or
2. at the Providing Party’s option, destroy,

all Confidential Information furnished by, or attained from, the Providing Party in connection with this Statement of Work, except for information which the Providing Party agrees in writing can be retained.

6.1 Termination

This Statement of Work may be terminated by either party by notice in writing to the other party if the other party is in default as specified in clause 6.2.

6.2 Default

A party will be in default under this Statement of Work if:

1. that party breaches, or fails to perform properly or promptly, any material obligation of that party under this Statement of Work and, where that breach is capable of remedy, fails to remedy the breach or perform the obligation within 10 Working Days (inclusive of the date of receipt) after receiving written notice thereof from the other party; or
2. that party:
   1. is, becomes, or is deemed to be, insolvent; or
   2. makes an assignment for the benefit of, or enters into or makes any arrangement or composition with, that party’s creditors; or
   3. goes into receivership or has a receiver, administrator, trustee or statutory manager or similar official appointed in respect of that party or that party’s property.

6.3 Consequences of termination

On and following termination or expiry of this Statement of Work for any reason the following will apply:

1. the termination or expiry will be without prejudice to either party’s rights and remedies in respect of a breach by the other party, where the breach occurred before the termination or expiry;
2. if this Statement of Work is terminated before the End Date, the Client will be liable for full payment of all amounts specified for payment in the Statement of Work, on demand, notwithstanding that the relevant Services may not have been provided at the date of termination; and
3. the provisions of clauses 5, 6, 7, 8, 9 and 10 of these Terms and Conditions, together with such other clauses as are incidental to, and required in order to give effect to, those clauses, and any other clauses that are, by their nature, intended to survive the termination or expiry of this Statement of Work, will remain in full force and effect.

7.1 Intellectual Property

Each party retains ownership of all rights (including Intellectual Property Rights) in its Intellectual Property, information, materials and other items:

1. existing prior to the date of this Statement of Work; or
2. developed independently of this Statement of Work,

(the “Background IP”).

7.2 New IP

Unless otherwise expressly stated otherwise in this Statement of Work, all rights (including Intellectual Property Rights) in:

1. any modification, addition or improvement to Quanton’s Background IP;
2. the deliverables and any other information, material or other items developed by Quanton in the course of providing the Services or provided by Quanton to the Client in connection with the Services; and
3. any ideas, comments or suggestions provided by the Client to Quanton relating to the Services (together “Feedback”), and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works),
4. (the “New IP”), automatically vest in Quanton:
5. to the extent they are able, from the date of this Statement of Work; or
6. in any other case, from the date of creation.

7.3 Assignment of rights

If ownership of any New IP does not automatically vest in Quanton in accordance with the intention of clause 7.2, the Client assigns all of its rights (including Intellectual Property Rights) in that New IP to Quanton as necessary to give effect to that intention.

7.4 Licences

1. To the extent that any Background IP of the Client is included in the New IP, the Client grants Quanton a non- exclusive, perpetual, irrevocable, royalty-free, transferable and sublicensable worldwide licence to use that Background IP as reasonably required by Quanton to use the New IP for any purpose.
2. Quanton grants the Client a non-exclusive, perpetual, irrevocable, royalty- free, transferable and sublicensable worldwide licence to use the New IP in connection within its business.

7.5 Further assurances

The Client must do any further acts, including executing any document, reasonably required by Quanton to give effect to clauses 7.1 to 7.4, to enable Quanton to file, prosecute or maintain any registrable Intellectual Property Right in the New IP.

8.1 No indirect loss

Neither party will be liable to the other party for any loss of profits or of anticipated profits, loss of business opportunity, loss of contract, or any consequential or indirect losses or damage arising out of or in connection with this Statement of Work howsoever caused.

8.2 Liability limitations

Notwithstanding anything to the contrary in this Statement of Work:

1. Quanton will have no liability whatsoever in connection with the Client’s use of a third party artificial intelligence program in connection with the Services (whether or not recommended by Quanton) and/or any information or materials generated by such a program;
2. the Client is solely responsible for its use of third party artificial intelligence programs and the information and the materials those programs may generate;
3. Quanton’s maximum aggregate liability arising out of or in connection with this Statement of Work, however such liability may arise (including without limitation any liability arising out of Quanton’s negligence or the negligence of any of its Personnel) in respect of all events occurring in relation to this Statement of Work will be limited to the fees paid by the Client to Quanton under this Statement of Work; and
4. none of Quanton’s officers, directors, employees or agents will have any personal liability in connection with this Statement of Work.

9.1 Non-solicitation

During the term of this Statement of Work, and for 12 months after its expiry or termination, the Client will not, without the prior written consent of Quanton, directly or indirectly, solicit, or offer employment or any contract for services to, any of Quanton’s Personnel.

9.2 Damages

If the Client employs or engages any of Quanton’s Personnel in breach of clause 9.1, the Client must pay Quanton, on demand, a fee (excluding GST) equivalent to the greater of:

1. 50% of the relevant Personnel’s annual salary, fee or other remuneration; and
2. $50,000,

but the charging of this fee will not limit any of Quanton’s other rights or remedies under this Statement of Work or otherwise in respect of the Client’s default.

10.1 Excusable delay

Neither party will be liable to the other for any failure or delay in complying with any obligation imposed on that party under this Statement of Work if:

1. the failure or delay arises directly or indirectly from a cause reasonably beyond that party’s control and not due to the fault or insolvency, or an intentional act or omission, of that party;
2. that party, on becoming aware of the cause, promptly notifies the other party in writing of the nature and expected duration of, and the obligation affected by, the cause; and
3. that party uses its reasonable endeavours to:
   1. mitigate the effects of the cause on that party’s obligations under this Statement of Work; and
   2. perform that party’s obligations under this Statement of Work on time despite the cause,

but nothing in this clause will excuse a party from any obligation to make a payment when due under this Agreement.

11.1 Entire agreement

This Statement of Work/Proposal constitutes the entire agreement and understanding (express and implied) between the parties relating to the Services and other matters referred to in this Statement of Work/Proposal, and supersedes and cancels anything discussed, exchanged, or agreed prior to the date of this Statement of Work or Proposal.

11.2 Relationship

Nothing in this Statement of Work will create, constitute or evidence any partnership, joint venture, agency or trust relationship between the parties and neither party will have any authority to act for, or to incur any obligation on behalf of, the other party, except as expressly provided in this Statement of Work/Proposal.

11.3 Variation and waiver

This Statement of Work may only be varied in writing signed by the parties. No waiver of any breach, or failure to enforce any provision, of this Statement of Work at any time by either party will in any way affect, limit or waive that party’s right thereafter to enforce and compel strict compliance with the provisions of this Statement of Work.

11.4 Assignment and subcontracting

1. Neither party will, directly or indirectly, assign, transfer or otherwise dispose of any rights or interests of that party in, or obligations or liabilities under, this Statement of Work, except with the prior written consent of the other party, which consent shall not be unreasonably withheld, delayed or conditioned.
2. Quanton may allow one or more of its contractor to carry out all or any of the Services under this Statement of Work, on behalf of Quanton, without the Client’s consent.

11.5 Further assurances

Each party will from time to time on request by the other party execute and deliver all documents and do all other acts and things, which are necessary or reasonably required to give full force and effect to the provisions of, and arrangements contemplated by, this Statement of Work.

11.6 Severability

If any part of this Statement of Work is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable such determination will not impair the enforceability of the remaining parts of this Statement of Work, which will remain in full force.

11.7 Construction

This Statement of Work is not to be construed to the disadvantage of a party because that party was responsible for its preparation.

11.8 Notices

Where either party is required to give the other party any notice, it will do so by personal services or email to the relevant address specified at the front of this Statement of Work.

11.9 Counterparts

This Statement of Work may be signed in any number of counterparts, including scanned copies, all of which will together constitute one and the same instrument and a binding and enforceable agreement between the parties. Either party may execute this Statement of Work by signing any such counterpart.

11.10 Electronic signature

Each party hereby irrevocably consents to the use of electronic signatures for the purposes of the Contract and Commercial Law Act 2017, including to sign this Statement of Work, and in relation to documents, notices, correspondence or the like relating to this Statement of Work, and agrees to be bound by this Statement of Work and any documents, notices, correspondence or the like relating to this Statement of Work executed by electronic signature.

11.11 Governing law

This Statement of Work is governed by, and will be construed in accordance with, the laws of New Zealand and each party unconditionally and irrevocably submits to the non-exclusive jurisdiction of the courts of New Zealand in respect of all matters arising out of this Statement of Work.