Terms and Conditions of the Service

Updated: 29 June 2018

  1. Subscription
    1. Contract Eagle will provide the Service to The Subscriber on the basis set out in this agreement. The Service can be used by The Subscriber only for its own internal business purposes.
    2. must ensure that no more than the number of users specified in the Fee Schedule utilise the Service. Additional users may be added on the basis set out in the Fee Schedule. Users must be employees of, or contractors to, The Subscriber.
    3. The Subscriber must not copy all or any part of the Service or any related documentation other than as agreed for backup purposes. The Subscriber must not attempt to reverse engineer or decompile the Service.
    4. The Subscriber may select to have its service hosted either on Contract Eagle’s Cloud Service (“the Cloud Service”) or self-installed on The Subscriber’s servers (“On Premises”). The Subscriber’s initial selection is specified in the Fee Schedule, but The Subscriber may give Contract Eagle notice at any time that it wishes to change its selection. Following receipt of a notice, Contract Eagle and The Subscriber will work together to agree a project timetable (including any additional one-time costs) to effect the change of selection, and an updated Fee Schedule.
  2. Subscription and Implementation Fees
    1. The subscription, implementation and enhancement fees (“the fees”) payable to Contract Eagle by The Subscriber for the Service and implementation are as set out in the Fee Schedule (as updated pursuant to clause 1.d).
    2. The fees must be paid to Contract Eagle by The Subscriber no later than 30 days after receipt of an invoice from Contract Eagle.
    3. The subscription fees may be adjusted for inflation at or about the anniversary of this agreement each year to reflect any percentage increase in the New Zealand Consumers Price Index (all groups) over the most recently reported 12 month period. No adjustment will be made during the Price Guarantee Period specified within the Fee Schedule.
    4. If does not make any payment by the due date it will, on demand, pay Contract Eagle interest on the overdue amount calculated at the rate of 10% per annum, calculated from the due date until the payment is made in full.
    5. Additional users may be added or removed at any time in blocks of 5 users.
  3. Intellectual Property
    1. The Subscriber acknowledges that it has no intellectual property rights in the Service. The Subscriber will not undertake any act that infringes or may infringe Contract Eagle’s intellectual property rights.
    2. Contract Eagle will indemnify The Subscriber against any expenses, costs, losses, penalties, damages or any other financial commitment relating to or otherwise connected with:
      1. the Service or its use infringing the intellectual property rights of another person; or
      2. any claim or allegation that the Service or its use infringes the intellectual property rights of another person, which claim or allegation is settled on terms to which Contract Eagle consents.
    3. The Subscriber must (at the cost of Contract Eagle) provide all reasonable co-operation with Contract Eagle’s defence of any such claim.
    4. The indemnity provided for in clause 3.b will not apply to the extent that the claimed infringement arises from or is contributed to by any modification of the Service by The Subscriber.
  4. Warranties
    1. Each party warrants to the other that it has all necessary rights and is entitled to enter this agreement.
    2. Contract Eagle warrants that the Service:
      1. exhibits all features represented in the Guide;
      2. complies with all representations contained in the Guide; and
      3. otherwise operates in accordance with the Guide. The Guide is the Contract Eagle User Guide) (the version available from the Help Function of Contract Eagle as of the Installation Date) or any subsequent version of the Guide
    3. Any failure of the Service to comply with the warranty in clause 4.b is considered a defect for the purposes of this agreement.
    4. Contract Eagle will at its cost and as soon as practical rectify any defect in the Service which The Subscriber brings to Contract Eagle’s attention so long as The Subscriber has paid the most recently billed subscription fees.
    5. Contract Eagle gives no other warranties regarding the Service and any warranty implied by law is excluded to the fullest extent permitted by law.
  5. Cloud Service Availability and Security
    1. This section 5 shall apply where The Subscriber’s hosting preference is specified as Cloud Service in the Fee Schedule.
    2. Contract Eagle has existing processes in place to ensure a high level of Service availability and security as set out in clause 5.c and will adapt its processes to respond to new threats to Service availability and security.
    3. As at the date of this agreement, Contract Eagle maintains the following practices relating to Cloud Service availability and security:
      1. System monitoring is in place to automatically notify Contract Eagle support of any outage of the Service;
      2. Database backups are taken hourly and sent to a secondary geographical location in an encrypted format;
      3. All outages to the Service are documented via Contract Eagle’s Cloud Service Notifications forum within Contract Eagle’s support portal;
      4. Regular external application penetration testing is performed by a third party;
      5. Access to The Subscriber’s data is limited to Contract Eagle employees and contractors who have passed an internal approval process, and signed a non-disclosure agreement and security declaration; and
      6. Security patching is performed on the Cloud Service infrastructure as new patches are released by Microsoft.
    4. The Hosting Location and Offsite Backup location of The Subscriber’s Cloud Service are as specified in the Fee Schedule. Such location will only change if (i) requested in writing by The Subscriber (ii) Contract Eagle at its sole discretion believes that The Subscriber’s data is at risk of being lost, corrupted, leaked or tampered with and needs to be moved or relocated immediately to remove or mitigate this risk.
  6. Support
    1. The fees include the following support services:
      1. all remote telephone support as required from time to time by The Subscriber;
      2. any patches or bug fixes;
      3. any new minor enhancements to the Service which provide substantially the same functionality.
    2. The fees do not cover:
      1. any on-site support, which will be charged at Contract Eagle’s then current rates;
      2. any new major releases or new functionality that provides additionally substantially different functionality to the then existing release; or
      3. data entry which is the responsibility of The Subscriber.
    3. Contract Eagle warrants that the support services will be:
      1. provided with all due care and skill;
      2. provided in a reasonable time frame having regard to the nature of the support services, being:
        1. for urgent priority requests which must be raised by telephone to the number listed on Contract Eagle’s support website or as a high priority ticket via Contract Eagle’s support portal, response within 3 hours of receipt of a request from The Subscriber; and
        2. for medium priority requests which must be raised as a medium priority ticket via Contract Eagle’s support portal, response within 6 hours of receipt of a request from The Subscriber; and
        3. for all other requests, response within 1 business day of receipt, in each case, except where the support service objectively requires more time to be rendered; and
      3. reasonably fit for any purpose The Subscriber specifies when requesting the services; and
      4. of such a nature and quality that the services might reasonably be expected to achieve any result The Subscriber specifies when requesting the services.
    4. In the event of any breach by Contract Eagle of the warranty set out in clause 6.c Contract Eagle will perform the support services again. Contract Eagle will have no other liability to The Subscriber in respect of that warranty.
  7. Customer Obligations with the Cloud Service
    1. This section 7 shall apply where The Subscriber’s hosting preference is specified as Cloud Service in the Fee Schedule.
    2. The Subscriber will access the Cloud Service, upload and download content through its browser. The Subscriber may access and use the Cloud Service only through the login protocols provided to The Subscriber by Contract Eagle.
    3. The Subscriber must provide and maintain all necessary terminal equipment, telecommunications services and software required to access or to use the Cloud Service.
    4. The Subscriber may not permit or sub-licence any person to use the Cloud Service except as permitted by this agreement, or with the written consent of Contract Eagle which consent may be given or withheld at Contract Eagle’s sole discretion.
    5. The Subscriber must not use or access the Cloud Service in a manner which, in the opinion of Contract Eagle, may adversely affect the efficiency, security or use by third parties of the Cloud Service offered by Contract Eagle.
    6. The Subscriber is responsible for maintaining the confidentiality of its login protocols, and any additional information that Contract Eagle may provide regarding accessing the Cloud Service. The Subscriber agrees to immediately notify Contract Eagle of any unauthorised use of The Subscriber’s login protocols or any other breach of security.  The Subscriber must take all reasonable measures to prevent unauthorised access to the Cloud Service.
    7. The Subscriber must ensure that any content stored or accessed does not infringe any third party rights, complies with all laws and relates solely to The Subscriber and its business or the businesses carried on by The Subscriber.
  8. Liability
    1. Except as stated in clause 3.b, Contract Eagle will not be liable to The Subscriber for any direct or indirect losses, costs, expenses or liability in connection with The Subscriber ‘s use of, or its inability to use, the Service.
    2. If notwithstanding clause 8.a, Contract Eagle is held to be liable to The Subscriber (other than in respect of clause 3.b then Contract Eagle’s total maximum liability is limited to the amount of the subscription fees paid by The Subscriber in the past 12 months.
    3. The parties agree that Contract Eagle shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to Contract Eagle at the time. Contract Eagle will promptly report to The Subscriber any unauthorised access to The Subscriber’s data promptly upon discovery by Contract Eagle, and Contract Eagle will use diligent efforts to promptly remedy any breach of security that permitted such unauthorised access. ln the event notification to persons included in The Subscriber’s data is required, The Subscriber shall be solely responsible for any and all such notifications at The Subscriber’s expense.
  9. Default and Termination
    1. The Subscriber may terminate this agreement immediately by giving written notice at any time during the first thirty days of this subscription for any or no reason.
    2. The Subscriber may terminate this agreement immediately by giving one month’s written notice for any or no reason.
    3. Contract Eagle may terminate this agreement immediately by giving twelve month’s written notice for any or no reason.
    4. Contract Eagle may suspend the Service if The Subscriber fails to make payment on the due date of invoice or fails to comply with any of its obligations under this agreement, provided Contract Eagle has given The Subscriber not less than 7 days’ notice of the failure and The Subscriber has failed to remedy the failure within those 7 days.
    5. Either party may terminate this agreement immediately by giving 14 days’ written notice of termination to the other party if the other party:
      1. commits any material breach of this agreement which is incapable of being remedied;
      2. commits any material breach of this agreement which is capable of being remedied, but fails to remedy the breach within 14 days of the receipt of written notice of the breach.
    6. Termination of this agreement will terminate The Subscriber ‘s right to use the Service but The Subscriber will be given ninety (90) days to migrate any data held on the Service to another platform.
  10. Confidential Information
    1. Confidential Information means:
      1. all information, whether in written or any other form, which by its nature is, or would reasonably be expected to be, confidential; and trade secrets, already communicated or subsequently communicated:
        1. under or in connection with this agreement;
        2. with respect to the Deliverables, System and Services; or
        3. otherwise with respect to the subject matter of this agreement,
      2. including any information obtained:
        1. in the course of negotiations leading to the conclusion of this agreement; or
        2. in the performance of this agreement;
      3. any information about the business or property of either party including any information:
        1. relating to the financial position of that party;
        2. concerning that party’s suppliers and customers or its agents or brokers;
        3. relating to that party’s internal management, structure, personnel or strategies; or
        4. comprising the terms of this agreement; or
      4. information in respect of any materials in which that party has Intellectual Property Rights under the terms of this agreement,
      5. and which in the case of The Subscriber, includes any of The Subscriber’s data, and provided that, where information relates exclusively to one party, nothing in this agreement will require that party to maintain confidentiality in respect of that information;
    2. Confidentiality: Each of the parties will keep confidential and will not disclose to any person any Confidential Information which has been or may be disclosed to it (the Recipient) by or on behalf of the other party (the Disclosing Party) except insofar as the Confidential Information:
      1. is required by a person employed or engaged by the Recipient in connection with the proper performance of this agreement, including to Microsoft Azure in its capacity as the provider of the Cloud infrastructure for the purposes of this agreement; or
      2. is required to be disclosed by Law by the Recipient, provided that the Recipient must notify the Disclosing Party of the information to be disclosed and the circumstances in which the disclosure is alleged to be required as early as reasonably possible before such disclosure must be made and must take all reasonable action to avoid and limit such disclosure.
    3. Permitted Disclosures: Any disclosure of Confidential Information permitted under clause 10.b.i must be in confidence, must only be to the extent that any persons to whom the information is disclosed need to know the same for the performance of their duties and the Recipient must procure that all such persons are aware of the obligation of confidentiality and undertake to comply with it.
    4. Permitted Use: Each party undertakes to the other to use the Confidential Information disclosed to it by or on behalf of the other party solely in connection with the performance of this agreement and not otherwise for its own benefit or the benefit of any third party.
    5. Permitted Disclosures: Clause 10.b does not preclude the Recipient from disclosing Confidential Information:
      1. if that information was known, or becomes known, to the public through no act or default of the Recipient;
      2. that the Recipient is required by Law to disclose so long as the Recipient provides written notice of the required disclosure promptly upon receipt of notice of the required disclosure (if it is permitted to do so by Law);
      3. that was lawfully known to the Recipient prior to the date it was received;
      4. that becomes available to the Recipient from a source other than a party to this agreement provided that the Recipient has no reason to believe such source is itself bound by an obligation of confidence to the person that disclosed that information or is otherwise prohibited under Law from disclosing such information;
      5. that has been or is independently developed by the Recipient;
      6. to any professional adviser for the purposes of rendering professional services to a party and in relation to this agreement;
      7. to the extent that such disclosure is authorised by this agreement; or
      8. if such disclosure is approved for release with the prior written consent of the Disclosing Party.
    6. Remedies for Breach of Confidentiality: Without prejudice to any other rights or remedies that the Disclosing Party may have, the Recipient acknowledges and agrees that the Disclosing Party will, without proof of special damage, be entitled to an injunction, specific performance or other equitable relief for any threatened or actual breach of the provisions of this clause, in addition to any damages or other remedy to which it may be entitled. The Subscriber agrees that Contract Eagle will not be liable for any breach of confidentiality under this agreement to the extent arising from any attack on Microsoft Azure (being the provider of the Cloud infrastructure) or any other act or omission of Microsoft Azure (or any of its employees or contractors). 
    7. Right to Disclose: The Disclosing Party warrants that it has the right to disclose the Confidential Information to the Recipient and the right to authorise the Recipient to use the same in accordance with the terms of this agreement.
    8. Return of Confidential Information: All Confidential Information which is in possession, power or control of the Recipient must, at the Disclosing Party's option, be returned to the disclosing party or destroyed by the recipient, as and when requested by the disclosing party. In the event of the destruction of the Confidential Information, the recipient must certify in writing to the disclosing party within 30 days that such destruction has been accomplished.  The recipient must make no further use of nor retain such Confidential Information in any form whatsoever.  Nothing in this clause 10.h will apply to Confidential Information that the recipient is required to retain by Law.
    9. Obligation Survives: This clause 10 will continue in force notwithstanding the termination or expiry of this agreement without limit in time.
  11. General
    1. The Subscriber must not assign or otherwise deal with any of its rights under this agreement, except with the consent in writing of Contract Eagle, which consent must not be unreasonably withheld.
    2. No amendment to this agreement will be effective unless it is in writing and signed by both parties.
    3. A waiver shall only be effective if given in writing. No waiver of any breach or failure to perform shall be a waiver of any future breach or failure to perform or of any other provision of this agreement. 
    4. If any provision in this agreement is held to be invalid, void or unenforceable, then the remainder of this agreement, or the application of such provision to the parties or to the circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and shall be enforced to the fullest extent permitted by law. The Parties agree to renegotiate any such invalid, void or unenforceable provision in good faith in order to provide a reasonably acceptable alternative consistent with the basic purposes of this agreement. 
    5. This agreement is governed by the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the courts of New Zealand.
    6. This agreement constitutes the entire agreement between the parties as to its subject matter, and in relation to that subject matter, supersedes all previous agreements, arrangements and representations between the parties in relation to that subject matter.
    7. These terms and conditions of service may be updated by Contract Eagle from time to time.