GENERAL TERMS AND CONDITIONS +

PROVISION OF PRODUCT
1.1 Grow@ agrees to provide the Product to the Customer in accordance with the Delivery and Support Process and on the terms and conditions contained in this Agreement.

1.2 Any support services provided by Grow@, outside the Delivery and Support Process, will be charged at Service Rates.

FEES, PAYMENT AND DEFAULT 2.1 All prices are in New Zealand dollars and are exclusive of GST, which the Customer shall pay when invoiced.

2.2 The Customer must pay all fees to Grow@ for the provision of the Product within fifteen (15) Business Days from the date of each invoice.

2.3 Grow@ will provide a monthly invoice to the Customer for all Fees.

2.4 The Regional Licence Fees are payable by the Customer in advance, all other Fees in arrears, and all Fees shall be paid by the Customer by electronic payment. All payments must be paid to Grow@’s nominated bank account free and clear of any deductions, withholdings, set-offs or counterclaims save to the extent required by law.

2.5 Grow@ may vary its charges (including any Fees and the Service Rate) by giving the Customer 30 days’ notice in writing. Grow@ may not vary it charges during the Minimum Term.

2.6 If the Customer:

(a) does not pay any amount owed to Grow@ on the due date; or

(b) fails to fulfil its obligations under this Agreement or otherwise breaches any term of this Agreement,

(c) is found not to fulfil the owner/operator, SME or Corporate size definition in accordance with the pricing package agreed,

Grow@ may, without notice to the Customer, immediately suspend access to the Product and Grow@ will not be liable for any costs, expenses, losses or damages resulting directly or indirectly from such action.

2.7 If any amount which the Customer owes Grow@ falls overdue for payment, such late or non-payment shall constitute a breach of the Customer’s obligations under this Agreement and the overdue amount shall (without prejudice to any other right or remedy available to Grow@ under this Agreement or at law) bear default interest at the Default Interest Rate from the date on which payment of that amount falls overdue until the date on which payment of the overdue amount is made in full. Default interest shall be calculated daily at the Default Interest Rate and shall be compounded monthly.

EXCLUSIONS AND LIMITATION OF LIABILITY 3.1 All statutory or implied conditions and warranties (including as to merchantability and suitability for any purpose) are excluded to the fullest extent permitted by law.

3.2 To the fullest extent permitted by law:

(a) Except in instances of gross negligence or breach of the terms contained herein, Grow@ and its directors, employees and contractors shall not be liable to the Customer for any loss, damage, cost or expense, whether direct, indirect or consequential, loss of profits or revenue, lost opportunity or otherwise arising out of or in connection with this Agreement, the App and/or the Product.

(b) Grow@’s liability to the Customer, and visa versa, howsoever arising, from the supply of (or failure to supply) the Product, or the quality or performance of the Product is limited to the Fees paid by the Customer to Grow@ in the twelve (12) month period prior to the event giving rise to the liability.

3.3 The Customer acknowledges that it is entering into this Agreement for the purposes of its business (in terms of the Consumer Guarantees Act 1993) and the Customer shall not assert any rights or claims against the Supplier under the provisions of the Consumer Guarantees Act 1993.

UNFORESEEN CIRCUMSTANCES 4.1 Neither party shall be liable for any act, omission or failure under this Agreement if that act, omission or failure arises directly from a cause beyond the reasonable control of the party concerned, including (without limitation) extreme weather conditions, civil disruption or industrial action, provided that:

(a) the party claiming the protection of this clause shall, as soon as possible after becoming aware of such cause or the likelihood of such cause, give the other party written notice accordingly;

(b) notwithstanding the intervention of such cause, each party shall continue to use its reasonable endeavours to perform its obligations as required under this Agreement (excluding any obligations which have already been duly performed as at the date of the relevant cause) despite that cause;

(c) in any such event, neither party shall be deemed to have accepted any extra costs which may be incurred or sustained by the other party through a delay resulting from that cause.

(d) The Customer and its directors, employees and contractors shall not be liable to Grow@ for any consequential loss of profits or revenue, lost opportunity or otherwise arising out of or in connection with this Agreement, the App and/or the Product.

TERMINATION 5.1 This Agreement commences on the Commencement Date and continues until terminated in accordance with clauses 5.2 or 5.3.

5.2 Either party may terminate this Agreement by giving written notice to the other party no less than three (3) months’ notice in writing.

5.3 Grow@ may terminate this Agreement immediately by notice in writing to the Customer if any of the following events occurs:

(a) the Customer does not pay any amount owed to Grow@ on the due date;

(b) the Customer fails to fulfil its obligations under this Agreement or otherwise breach any term of this Agreement;

(c) it becomes, or will become, illegal for the Customer to comply with its obligations under this Agreement or all or part of this Agreement becomes invalid or unenforceable;

(d) the Customer ceases or threatens to cease to carry on its business;

(e) the Customer is unable to pay its debts or are deemed or presumed to be unable to pay its debts, or takes steps to benefit any of its creditors or stops or threatens to stop payments; or

(f) a receiver, administrator or similar official is appointed in relation to any asset of the Customer or the Customer requests the appointment of, or an application is made for the appointment of, any of those officials;

(g) an application is made, or any steps taken for the bankruptcy or liquidation of the Customer or the Customer is declared or become bankrupt or insolvent; or

(h) any step is taken to appoint, or with a view to appointing, a statutory manager or similar official of or to the Customer (including the making of any recommendation under the Corporations (Investigation and Management) Act 1989, or the Customer is declared at risk under that Act).

5.4 Termination of this Agreement by Grow@ will be without prejudice to its accrued rights, remedies and liabilities under this Agreement.

5.5 Should this Agreement be terminated for any reason, the Customer agrees to immediately:

(a) pay Grow@ all amounts owing by the Customer to Grow@; and

(b) pay Grow@ for the proportion of the access to the App which has been provided up to the Termination Date on receipt of an invoice from Grow@.

5.6 The provisions of this Agreement relating to exclusions and limitation of liability (clause 3), termination (clause 5), indemnity (clause 6), confidentiality (clause 8), intellectual property (clause 9) and costs (15) will continue after the termination of this Agreement.

INDEMNITY 6.1 The Customer agrees to indemnify Grow@ against any claims, losses, damages, liabilities and expenses of whatever nature arising in whole or in part out of any breach of this Agreement by the Customer.

DISPUTES 7.1 The Customer shall pay any undisputed portion of any invoice by its due date.

7.2 The parties shall meet and discuss in good faith any dispute between them arising out of this Agreement.

7.3 Neither party may require any arbitration, or issue any legal proceedings (other than for urgent interlocutory relief), in respect of any such dispute, unless that party has first taken reasonable steps to comply with clause 7.2.

CONFIDENTIALITY 8.1 The Customer shall:

(a) keep confidential at all times the Confidential Information of Grow@;

(b) not use or disclose Grow@’s Confidential Information to any third party other than for the purposes of performing this Agreement or exercising rights under this Agreement;

(c) effect and maintain adequate security measures to safeguard Grow@’s Confidential Information from access or use by unauthorised persons; and

(d) ensure that any employees or contractors to whom it discloses Grow@’s Confidential Information are aware of, and comply with, the provisions of this clause 8.

8.2 The obligations of confidentiality in clause 8.1 do not apply to any disclosure of Confidential Information:

(a) required by law;

(b) which is publicly available through no fault of the recipient or its employees or contractors;

(c) in relation to which Grow@ agrees in advance and in writing to the disclosure;

(d) which was rightfully received from a third party without restriction or without breach of this Agreement; or

(e) which is necessary for the purposes of giving effect to or enforcing or attempting to enforce the terms of this Agreement.

INTELLECTUAL PROPERTY 9.1 All intellectual property in or relating to all or any part of the Product (including, without limitation, trade marks, copyright, patents and trade secrets associated with the Product) and any information created or collected are the exclusive property of the Grow@ and nothing in this Agreement shall operate to vest any right to the same in the Customer or any other person.

REFERENCES 10.1 The Customer authorises Grow@ to obtain credit or trade references about the Customer from any suitable person and/or organisation and to verify any information provided by any such person and/or organisation for the purpose of determining whether to extend credit to the Customer.

10.2 If the Customer is an individual, he or she has a right of access to information about him or her held by Grow@ and the Customer may request correction of that information and require that the request be stored with that information. Grow@ may charge its reasonable costs of providing access to that information.

ASSIGNMENT
11.1 The Customer shall not assign any or all of its rights under this Agreement without Grow@’s prior written consent (which consent may be withheld by Grow@ at its sole discretion).

11.2 Grow@ may assign this any or all of its rights under this Agreement without the Customer’s consent.

SCOPE 12.1 Notwithstanding anything contained in any correspondence between the parties or elsewhere, this Agreement constitutes the entire terms and conditions of the agreement between the parties in relation to the Product and will prevail over all prior arrangements, negotiations, proposals, correspondence or previous dealings between the parties (whether written or oral).

12.2 The Customer acknowledges that in entering into this Agreement it did not rely on any representation or warranty (either express or implied) except to the extent provided in this Agreement.

12.3 No amendment to this Agreement shall be valid unless in writing and executed by all parties in the same manner as that in which this Agreement has been executed.

NOTICES AND CUSTOMER REPRESENTATIVE 13.1 Any written notice required to be given pursuant to this Agreement shall (without limitation) be deemed validly given if:

(a) signed by the party or a director of the party giving that notice; and

(b) delivered by hand or sent by e-mail or facsimile transmission (provided that in the case of facsimile transmission, the sender’s facsimile machine confirms transmission to the intended recipient) to the intended recipient’s physical address, e-mail address or facsimile number, as set out on the front page of this Agreement (or to such other physical address, e-mail address or facsimile number as the intended recipient shall notify to the other party by written notice from time to time.

For the purposes of this Agreement, any notice transmitted or delivered after 5.00pm on a Business Day, or at any time on a non Business Day, shall be deemed received at 9.00am on the next Business Day.

13.2 Except for any written notice required to be given pursuant to this Agreement, all other communications to or from the Customer shall be via the Customer Representative.

COPIES 14.1 This Agreement may be executed in one or more counterpart copies which, read together, shall constitute one and the same instrument.

14.2 Any facsimile or scanned copy of this Agreement (including any facsimile or scanned copy of any document evidencing the execution of this Agreement by either party) may be relied upon by the other party as though it were an original copy.

GENERAL
15.1 The Customer shall provide all assistance to, and cooperate with, Grow@ in order to facilitate and expedite the implementation of this Agreement.

15.2 If any provision of this Agreement is or becomes invalid or unenforceable, that provision shall be deemed deleted from this Agreement and such invalidity or unenforceability shall not affect the other provisions of this Agreement, all of which shall remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provisions.

15.3 No waiver of any breach, or failure to enforce any provision, of this Agreement at any time by Grow@ shall in any way limit or waive its right to subsequently require strict compliance with this Agreement.

15.4 The laws of New Zealand govern this Agreement and the Customer’s use of the Product.

15.5 The Customer agrees to submit to the non-exclusive jurisdiction of the Courts of New Zealand and agree that any legal proceedings may be heard in those courts.

15.6 The customer hereby agrees that Grow@ may and authorises Grow@ to utilise their branding and or company name on their website or in any other similar promotional capacity to identify them as a customer of Grow@.

DEFINITIONS AND INTERPRETATION
16.1 In this Agreement, the following terms have the following meanings:

“Delivery and Support Process” means the delivery and support process described in this agreement;

“Fees” means fees specified in this agreement;

“Minimum Term” means the term specified in 5.2;

“Service Rates” means Grow@’s hourly service rate.

“Agreement” means this agreement, including its schedules, as amended from time to time;

“App” means the Grow@ mobile application;

“Business Day” means a day upon which the majority of registered banks are generally open for business in Auckland, excluding Saturday, Sunday and public holidays;

“Candidate” means a natural person listed as such on the App;

“Candidate Information” means any information in relation to a Candidate provided to the Customer by Grow@ via the App or any other means;

“Commencement Date” means the commencement date as agreed;

“Confidential Information” means all information and data (in any form) produced by or obtained from Grow@ in the course of, or in connection with:

this Agreement; the provision of the Product; or the use of the App by the Customer. “Customer Representative” means the person named as such on the front page of this Agreement or such successor named by the Customer by notice in writing to Grow@ from time to time.

“Default Interest Rate” means 14% per annum;

“Delivery and Support Process” means the delivery and support process described in Schedule 2;

“Documentation” means any documentation and other information provided to the Customer by Grow@ in connection with the App.

“Fees” means fees specified under the “Corporate Agreement” webpage associated with the url www.growatapp.com;

“GST” means goods and services tax in terms of the Goods and Services Tax Act 1985, at the rate prevailing from time to time;

“Intellectual Property Rights” means all intellectual property rights including copyright and all rights conferred under statute, common law or equity in relation to inventions (including patents), registered or unregistered trade marks and designs, circuit layouts, data and databases, confidential information and know-how;

“Product” means the App and all Documentation;

“Region Licence” means app usage in Northern NZ (including Auckland), Central NZ (Including Wellington) and South Island (including Christchurch).

“SMS” means short message system or text message.

“Termination Date” means the date this Agreement is terminated.

“Working Hours” means 8.30am to 5.00pm on any Business Day.

16.2 In this Agreement:

(a) references to any “party” means a party to this Agreement;

(b) references to any party to this Agreement include the successors, executors, administrators and permitted assignees (as the case may be) of that party;

(c) references to clauses and schedules are to clauses in, and the schedules to, this Agreement (unless stated otherwise). Each such schedule forms part of this Agreement;

(d) headings are for convenience only and do not affect the interpretation of this Agreement; and

(e) references to “written” or “in writing” includes any means of visible representation including email.

ADDITIONAL TERMS AND CONDITIONS

CUSTOMER USER INFORMATION

1.1 In relation to any access to the App granted to a director, employee, contractor or agent of the Customer by Grow@, the Customer shall, and shall take all reasonable steps to ensure that its directors, employees, contractors and agents:

(a)not provide candidates with direct contact information through the app messaging features (and accept that, should this occur, the search will be considered to have resulted in a ‘successful app search’ transaction);

(b)only provide true, correct, complete and accurate information and details and that such information and details are kept up-to-date;

(c)only use the App for the purpose for which it was intended; and

(d)immediately notify Grow@ of:

(i)any information or details that are not true, correct, complete and accurate or up-to-date;

(ii)any actual or suspected misuse of the App by any person;

(ii)any actual or suspected unauthorised access to the App;

(e)take reasonable measures to protect the App from misuse and/or unauthorised access.

1.2 The Customer indemnifies Grow@ against any and all claims arising out of the Customer, or any of the Customer’s current or former directors, employees, contractors or agents:

(a) failing to provide true, correct, complete and accurate information and details or keep such information and details up-to-date;

(b) facilitating, deliberately or in error:

(i) the provision of any information or details that are not true, correct, complete and accurate or up-to-date;

(ii) unauthorised access to the App; or

(iii) misuse of the App;

failing to notify Grow@ of any: information or details that are not true, correct, complete and accurate or up-to-date; misuse of the App; or unauthorised access to the App, as soon as practicable.

OBLIGATIONS 2.1 The Customer shall:

(a) provide Grow@ with the names of all directors, employees, contractors and agents that are authorised to use the App (“Current User List”); and

(b) notify Grow@ in writing no less than three (3) Business Days prior to any change to the Current User List.

2.2 The Customer indemnifies Grow@ against any and all claims arising out of the Customer failing to comply with clause 2.1(b).

RESTRICTIONS 3.1 The Customer shall not, and shall take all reasonable steps to ensure that none of its directors, employees or contractors do not:

(a) copy, replicate, reproduce, distribute, transmit, publish, translate, adapt, modify, vary, decompile, disassemble or reverse engineer any part of the Product (except the information which may be exported via the App);

(b) use the App for any purpose:

(i) which is contrary to any applicable law;

(ii) which contravenes the intellectual property, privacy or any other rights of any third party; or

(iii) which is in any way harmful, threatening, abusive, tortious, defamatory, libellous, vulgar, obscene, lewd, profane, invasive of another’s privacy, hateful or racially, ethically or otherwise objectionable;

(c) introduce to the App any virus, worm or any other code designed to manipulate or damage the App in any way.

EXCLUSIONS AND LIMITATIONS 4.1 The Customer acknowledges and agrees that:

(a) the stability and availability of the Product is dependent on:

(i) the stability of the App; and

(ii) the nature of the internet.

(b) access to the App cannot be guaranteed to be error free, delay free or uninterrupted and Grow@ will not be liable for such unavailability, errors, delays or interruptions.

4.2 Grow@ makes no warranty whatsoever that the App will be free from viruses or any kind of malicious code whatsoever.

4.3 Grow@ may temporarily suspend access to the App to carry out maintenance, repairs, reconfigurations, upgrades or updates.

4.4 Grow@ does not give any representation, warranty, covenant, undertaking or guarantee whatsoever, including (without limitation) as to the availability, accuracy, completeness, currency or reliability of the Product or the information provided via the Product.