Last updated: October 24, 2018
Welcome to JRNY’s customised conversation tools and software platform that enable you to have artificially intelligent, automated conversations with new or potential customers.
We will work with you in two distinct stages:
Stage 1 – conversation design and build; and
Stage 2 – after the conversation goes live, we will give you access to the conversation tools and JRNY dashboard, allowing you to manage conversations and analytics. We may also offer ongoing support services.
These Conversation Development and Access Terms (Terms) along with the other documents identified in the Terms, form the agreement between you and us (Agreement). The Agreement describes the stages mentioned above and sets out our, and your, rights and obligations when we work together.
The Agreement also includes the Project Roadmap – a document agreed between you and us which sets out specific terms about the design and build process (Stage 1), and your ongoing access to the JRNY dashboard and conversation tools (Stage 2).
When both parties sign the Project Roadmap, each party agrees to be bound by the Agreement.
We can amend these Terms at any time, by posting modified terms on our website or by notifying you in writing (e.g. by email). You must ensure you have read, understood and agreed to the most recent Terms posted on our website or otherwise notified to you.
1. Definitions and Interpretation
1.1. In this Agreement, unless the context requires otherwise:
- Affiliate means any entity that controls, is controlled by, or is under common control with, a party;
- Business Day means a day other than a Saturday, Sunday or public holiday inAuckland, New Zealand;
- Client, you or your means the person identified in the Project Roadmap as the client andthat has accepted the terms of this Agreement;
- Client-Branded Tool means a version of the Conversation Tools customised to include YourBranding (and any other content specified by you), in accordance with clause 4.11;
- Client Tasks means the tasks set out in the Project Roadmap that you are required to perform;
- Confidential Information means any information (in whatever form) about or belonging to a party that:
(a) is by its nature confidential;
(b) the other party knows or should know is confidential; or
(c) is expressly identified as confidential, and is disclosed to, or obtained by, the other party in connection with this Agreement;
- Conversation Tools means the automated conversation tools which we design, implement and make available to you under this Agreement, using the JRNY Platform, as described in more detail in the Project Roadmap;
- Data ProtectionLegislation means all applicable laws and regulations relating to data protection and privacy in any jurisdiction in which our or your obligations are performed or data is being processed, stored or used in connection with this Agreement;
- Design &Implementation Services means the services we provide during the Implementation Period, including any such services specified in the Project Roadmap;
- Documentation means the documentation (if any) made available to you by us, which sets out a description of the Conversation Tools and the user instructions for theConversation Tools;
- End User means a person (whether a customer, prospective customer, or otherwise) who uses the Conversation Tools to interact with you or your Client Users;
- Fees means the fees payable by you for the Services and your access and use of the JRNY Platform and Conversation Tools, as set out in the Project Road map or as otherwise agreed between the parties in writing;
- Fixed Term means (i) the period following Go-Live specified as such in the Project Roadmap; or (ii) if no period is specified in the Project Roadmap, 12 months;
- Go-Live means when the Conversation Tools are released in full production to End Users;
- Go/No-Go Criteria means the criteria the parties will assess to decide whether to approve a Release or Go-Live (as applicable);
- Good Industry Practice means exercising the skill, diligence and care expected of a skilled and experienced person in the same or similar circumstances;
- Implementation Period means the period from the start of this Agreement until Go-Live;
- Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, right in databases or other sui generis right, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;
- JRNY, we, us and our means JRNY Limited;
- JRNY Dashboard means the portal we provide you on a software-as-a-service basis, which you can access to manage conversations, analytics and other tools we make available;
- JRNY Marks means our name, trade mark registrations and applications and other marks and logos (if any) that we authorise you to use in writing from time to time;
- JRNY Platform means the software, hardware, systems and technology owned by or licensed to us that enable us to develop and provide the Conversation Tools, and includes the JRNY Dashboard and the JRNY Website but does not include the Other Applications;
- JRNY Website means our website at www.jrny.ai, or any other URL address for our website that we notify you of;
- Other Application means a software application owned or developed by a third party that is incorporated into or interoperates with the Conversation Tools, including, for example, the Facebook Messenger application;
- Personal Information means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, including by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
- Project Roadmap means the document agreed between you and us setting out the commercial terms applying to the design and implementation, and your access and use, of the Conversation Tools;
- Release means a release of a version of the Conversation Tools to a restricted group of End Users during the Implementation Period, as may be described in more detail in the Project Roadmap;
- Services means all services we provide to you under this Agreement and includes the Design & Implementation Services and any Supplementary Services;
- Supplementary Services has the meaning given in clause 4.9;
- Terms means these Conversation Development and Access Terms;
- Timetable means any timetable or milestone dates specified in the Project Roadmap for the completion of any Services or Client Tasks;
- Virus means any thing or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect (a) the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) access to or the operation of any program or data, including the reliability of any program or data; or (c) the user experience, in each case including worms, trojan horses, viruses and other similar things or devices;
- Your Branding means your name, trade mark registrations and applications and other marks and logos (if any) that you make available to us to incorporate into a Client-Branded Tool;
- Your Content means any content that you create which relates specifically to you and is incorporated into the Conversation Tools (including any Client-specific scripts and ‘frequently asked questions’); and
- Your Data means any data (including Personal Information) inputted by you, Client Users or End Users for the purpose of using, or facilitating use of, the ConversationTools.
1.2. In this Agreement, unless the context requires otherwise:
- (a) a reference to a statute includes all regulations under and amendments to that statute, and any statute passed in substitution for that statute or incorporating any of its terms;
- (b) the singular includes the plural and vice versa;
- (c) references to a “party” or “parties” are to the parties to this Agreement;
- (d) “person” includes a natural person and any entity whether or not incorporated; and
- (e) the words “includes” or “including” do not imply any limitation.
1.3. If there is a conflict between any terms of this Agreement, the following order of priority will apply to resolve the conflict (unless the Agreement explicitly says otherwise):
- (a) first, these Terms;
- (b) second, the Project Roadmap;
- (c) third, any other terms of this Agreement.
2. Design and Implementation Services
2.1. We will, in accordance with the Project Roadmap:
- (a) provide the Design & Implementation Services using Good Industry Practice and appropriately qualified personnel; and
- (b) use reasonable efforts to complete the Design & Implementation Services within the Timetable.
2.2. You will, in accordance with the Project Roadmap:
- (a) perform the Client Tasks (within any applicable timeframes);
- (b) obtain and maintain any licences, authorisations or consents required so we can perform our obligations under this Agreement;
- (c) ensure we have access to your premises and technology environment to the extent required for us to provide the Design & Implementation Services; and
- (d) comply with any reasonable instructions we give you regarding the Design & Implementation Services.
2.3. If you do not comply with clause 2.2:
- (a) we will not be liable for any failure or delay in providing the Design & Implementation Services;
- (b) the parties will agree a reasonable extension to the Timetable so that we can provide the Design & Implementation Services; and
- (c) we can charge, and you will pay, any reasonable additional costs resulting from your failure to comply.
2.4. During the Implementation Period, the parties:
- (a) will hold progress meetings for the purpose of discussing the performance of the Services. These meetings will be held at the times and locations agreed between us; and
- (b) may agree to amend the Project Roadmap to provide for any agreed changes to the Conversation Tools or the terms relating to your access and use of the JRNY Platform.
3. Approval Process
3.1. The parties may agree (whether in the Project Roadmap or otherwise) that the Conversation Tools need to go through an approval process prior to one or more Releases or Go-Live (Approval Process).
3.2. If the parties agree under clause 3.1 that any Approval Process will occur, they will determine the Approval Process having regard to the nature of the Conversation Tools. An Approval Process may include:
- (a) the parties’ responsibilities in relation to the Approval Process;
- (b) the Go/No-Go Criteria;
- (c) the timeframe for carrying out the Approval Process;
- (d) any further information we will need from you if you do not approve a Release or Go-Live, to allow approval to be given; and
- (e) what happens if a Release or Go-Live is not approved.
3.3. If a Release or Go-Live is not approved and the Approval Process does not specify what happens in that event, then the parties may agree to do one or more of the following:
- (a) set a new date for Release or Go-Live, in which case the Timetable will be amended accordingly;
- (b) agree the further work we must do so that the Release or Go-Live can be approved (including any further Fees applicable to that work);
- (c) approve the Conversation Tools (subject to any conditions that the parties agree); or
- (d) terminate this Agreement with no further liability for either party (other than your liability to pay any Fees incurred prior to termination).
3.4. Any dispute about whether a Release or Go-Live should be approved will be resolved under clause 14.
4. Access to Conversation Tools
4.1. We grant you a non-exclusive, non-transferable right to access and use the JRNY Platform, the Conversation Tools, and the relevant Documentation:
- (a) during the Implementation Period, for the purposes of testing the Conversation Tools and making the Releases; and
- (b) following Go-Live, to make the Conversation Tools available to Client Users and End Users,
solely for your own legitimate business purposes and subject to the terms of this Agreement.
4.2. We may extend the licence in clause 4.1 to one or more of your Affiliates, only to the extent this is expressly agreed in the Project Roadmap.
Client Users and End Users
4.3. Without limiting any of your other obligations under this Agreement:
- (a) you will be responsible for determining the level of access that each Client User and End User has to the Conversation Tools, and you acknowledge that we will not be responsible for any issue arising due to:
(i) any act or omission of any Client User or End User; or
(ii) you incorrectly granting a level of access to an Client User or End User;
- (b) you will ensure that:
(i) each Client User complies with the terms of this Agreement; and
(ii) any terms (including privacy policies) you have in place with End Users: (A) are consistent with; (B) would not put you in breach of; and (C) allow us to exercise our rights and perform our obligations under, this Agreement;
- (d) any act or omission of a Client User or End User relating to the JRNY Platform or Conversation Tools will be treated as your act or omission. Without limiting our other rights and remedies, we can terminate any authority you have granted to any Client User or End User if we consider they have put you in breach of this Agreement.
4.4. You acknowledge that we regularly upgrade and update the JRNY Platform and that the JRNY Platform and the Conversation Tools will continually evolve. We will provide you with reasonable notice of any such changes if we consider this is necessary. You are responsible for the costs of implementing any upgrades required in your technology environment to ensure the upgraded or updated JRNY Platform and Conversation Tools continue to operate.
Your access obligations
4.5. You will:
- (a) keep secure logins and passwords for your (and your Client Users’) access and use of the JRNY Platform, Conversation Tools and Documentation and keep them confidential;
- (b) promptly disable any login account if we discover that any details have been disclosed or compromised;
- (c) allow us at any time on reasonable notice to audit your use of the JRNY Platform, Conversation Tools and Documentation to establish whether they are being used in accordance with this Agreement; and
- (d) on demand, pay us the amount of any underpayment of Fees discovered by us through the audits referred to in clause 4.5(c).
4.6. You will not access, store, distribute or transmit any Viruses, and we can, without liability and without limiting our other rights and remedies, disable your access to the Conversation Tools and JRNY Platform if you are in breach of this clause.
4.7. You will not:
- (a) except as expressly permitted under this Agreement or by any law which cannot be excluded by agreement between us:
(i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any part of the JRNY Platform, Conversation Tools or Documentation; or
(ii) reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the JRNY Platform or Conversation Tools;
- (b) access the JRNY Platform, Conversation Tools or Documentation to build a product or service which competes with the JRNY Platform or Conversation Tools;
- (c) use the JRNY Platform, Conversation Tools or Documentation to provide services to third parties (other than to Client Users and End Users in accordance with this Agreement);
- (d) make the JRNY Platform, Conversation Tools or Documentation available to any third party (other than to Client Users and End Users in accordance with this Agreement);
- (e) undermine the integrity or security of:
(i) the JRNY Platform;
(ii) the ConversationTools; or
(iii) our, or any third party’s, systems, networks or resources used in providing the JRNY Platform or the Conversation Tools;
- (f) use the JRNY Platform or Conversation Tools in a manner likely to cause excessive load or otherwise interfere with the delivery of the JRNY Platform to third parties;
- (g) obtain, or assist third parties in obtaining, access to the JRNY Platform Conversation Tools, Documentation or other related materials, other than as provided under this clause 4; or
- (h) attempt to do any of the things specified in paragraphs (a) to (g) above.
4.8. You will use all reasonable efforts to prevent any unauthorised access to, or use of, the JRNY Platform, Conversation Tools or Documentation and, in the event of any such unauthorised access or use, promptly notify us.
4.9. We may at our absolute discretion provide you with support, helpdesk, training, analytics or other services in relation to the Conversation Tools (Supplementary Services). Any specific terms (including any Fees) in relation to Supplementary Services will be set out in the Project Roadmap. Unless otherwise agreed in the Project Roadmap, we can suspend, discontinue or change the Supplementary Services at any time without notice to you.
4.10. As part of the Supplementary Services we may provide you with analytics services in relation to Your Data and/or other data we process through the JRNY Platform (Analytics Services). You acknowledge that the results of, assumptions used in, and information generated from any Analytics Services are for informational purposes only, and are subject to change depending on a variety of factors, which may not have been taken into account in providing the Analytics Services. To the maximum extent permitted by law, we will not be liable for any form of loss or damage arising in connection with your reliance on and use of the Analytics Services. You agree that you will not rely solely on the Analytics Services and will carry out your own research, testing and diligence to verify the accuracy, correctness, reliability and completeness of the Analytics Services.
4.11. We may at our absolute discretion agree to create a Client-Branded Tool. If we agree to create a Client-Branded Tool:
- (a) as soon as possible during the Implementation Period you will provide us with Your Branding and other content required for the Client-Branded Tool in the format we specify;
- (b) we will develop the Client-Branded Tool and agree the content of the Client-Branded Tool with you during the Implementation Period (subject to the terms of this Agreement and the Project Roadmap);
- (c) you grant us the non-exclusive right for the term of this Agreement to use Your Branding and any other content you provide in relation to the Client-Branded Tool, for the purpose of us developing and making available the Client-Branded Tool and in accordance with any reasonable guidelines set by you from time to time;
- (d) any other terms (including any further Fees) in relation to the Client-Branded Tool will be set out in the Project Roadmap; and
- (e) the provisions of this Agreement applying to Conversation Tools will apply to the Client-Branded Tool.
Integration with Other Applications
4.12. The Conversation Tools may include functionality or features which use or integrate with Other Applications. To use such functionality or features, you may need to obtain access to Other Applications from their providers, and to grant us access to your account(s) on those Other Applications. We cannot guarantee the continued availability of Other Applications (or the functionality or features which utilise them) and we can stop providing them at any time without liability to you.
4.13. You must:
- (b) ensure we are authorised to access your account(s) on Other Applications where required under the Project Roadmap or as otherwise reasonably required by us to provide the Conversation Tools.
4.14. Any use by you of Other Applications, and any exchange of data between you and the provider of any Other Application is a matter solely between you and the applicable provider and we do not have any liability for, or warrant or support, Other Applications or their providers.
5. Change in Access Terms
5.1. After Go-Live, you can request us to:
- (a) add, remove or change Client Users;
- (b) add or remove parts of the Conversation Tools;
- (c) configure or customise any part of the Conversation Tools; or
- (d) add, remove or change details in relation to your account with us.
We can accept or refuse any such request at our discretion. If we accept any such request, we will take the necessary action promptly in accordance with the provisions of this Agreement.
5.2. If you downgrade the Conversation Tools or Services, no refunds will be paid. If you upgrade or customise the Conversation Tools or Services, we will charge you for any amount due as a result of the upgrade/customisation (including amending the relevant Fees if required) and your account renewal date will be reset to the next available billing day.
5.3. Downgrading or customising the Conversation Tools or Services may cause loss of content, features or capacity. If you choose to downgrade or customise the Conversation Tools or Services, we will not be liable for any resulting loss of data, content, features or capacity.
6.2. You acknowledge and agree that you have sole responsibility for: (a) the legality, reliability, integrity, accuracy and quality of Your Data and (b) how you obtain Your Data.
6.3. Each of us will take appropriate technical, physical and organisational measures and safeguards against unauthorised or unlawful processing of Your Data or its accidental loss, destruction or damage and we will, as part of these measures, use reasonable efforts to back-up Your Data. You acknowledge that if there is any loss or damage to Your Data, your sole and exclusive remedy will be for us to use all reasonable efforts to restore such lost or damaged data from the latest back-up of Your Data maintained by us. We will not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party.
6.4. You acknowledge and agree that we can store, process and use Your Data for the purpose of:
- (a) performing our obligations under this Agreement;
- (b) ensuring that you are complying with the terms of this Agreement;
- (c) enhancing or developing the Conversation Tools or the JRNY Platform;
- (d) performing data analysis, machine learning, or cross entity analysis, all on an aggregated and/or anonymous basis,
6.5. You acknowledge and agree that we can store, process and use your Client Users’ and End Users’ data to:
- (a) contact them directly; and
- (b) enhance or develop the JRNY Platform; other conversation tools that use the JRNY Platform; and End Users’ experience on those conversation tools,
6.6. Our rights under clauses 6.4 and 6.5 apply not withstanding any other terms of, and survive termination or expiry of, this Agreement.
6.7. You acknowledge and agree that we can allow any Other Application and its provider to access Your Data as required for the interoperation or integration of that Other Application with the Conversation Tools. We are not responsible for any disclosure, modification or loss of Your Data caused by any Other Application or its provider.
7. Your Obligations
7.1. You will:
- (a) provide us with all necessary co-operation and access to any information required by us, so that we can provide the Conversation Tools, including Your Data, security access information, configuration services and servers. You warrant that you are authorised to provide that access and information;
- (b) comply with all applicable laws (including all Data Protection Legislation in respect of the collection, use and disclosure of Personal Information that is included in Your Data) in relation to the use of the Conversation Tools and your activities under this Agreement;
- (d) use the JRNY Platform, Conversation Tools, JRNY Website and Documentation only in accordance with the terms of this Agreement;
- (e) ensure that your network and systems comply with any reasonable specifications provided by us from time to time;
- (f) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to ours (and we will not be liable for any problems, conditions, delays, delivery failures or any other loss or damage arising from your network connections or telecommunications links or caused by the internet); and
- (g) promptly notify us of any malfunction of the Conversation Tools (including where any cognitive function of the Conversation Tools has developed negative behaviour which is considered inappropriate by you or us) and provide us with the opportunity to correct the malfunction. You acknowledge and agree that we may suspend provision of the Conversation Tools until a correction can be made.
8. Fees and Payment
8.1. You will pay the Fees to us in accordance with this clause 8, except to the extent otherwise agreed by us in writing.
8.2. Unless otherwise specified in the Project Roadmap, any fixed Fees will payable in advance and any time & materials Fees will be payable in arrears.
8.3. On or about the first day of each month, we will issue a valid tax invoice to you for:
- (a) any fixed Fees due for that month; and
- (b) any time & materials Fees incurred in the previous month(s) and yet to be invoiced.
Unless otherwise specified by us, each invoice will be payable by the 20th of the month in which the invoice is sent. Payment details will be specified on the invoice.
8.4. If you fail to pay any invoice when due then without affecting any of our other rights and remedies:
- (a) we may, without liability to you, disable access to the Conversation Tools and JRNY Platform, and will be under no obligation to provide the Conversation Tools or JRNY Platform while the invoice(s) concerned remain unpaid; and
- (b) we may charge you interest that will accrue on any due amounts at an annual rate equal to 2% over the then current base overdraft rate of our bankers calculated from the due date until the date the amount is paid in full.
8.5. All amounts referred to in this Agreement are exclusive of GST or other value added tax (if any).
8.6. You are responsible for paying all taxes associated with your purchases under this Agreement (other than taxes assessed against us based on our income). If you are required by law to deduct or withhold taxes or charges from the amounts due to us under this Agreement, you will ensure that the amount due to us is increased so that the payment actually made to us equals the amount due to us as if no such taxes or charges had been imposed.
8.7. We may change the Fees at any time by giving you at least 30 days’ prior written notice.
9. Intellectual Property Rights
9.1. You acknowledge and agree that we or our licensors own all Intellectual Property Rights in the:
- (a) Conversation Tools (except Your Data, Your Content and Your Branding);
- (b) JRNY Platform;
- (c) Documentation; and
- (d) JRNY Marks,
together with all modifications, enhancements and other developments (whether or not recommended or suggested by you). Except as expressly provided in this Agreement, you are not granted anyIntellectual Property Rights, or any other rights or licences, in respect of the Conversation Tools, JRNY Platform, Documentation or JRNY Marks.
9.2. We acknowledge and agree that, subject to clause 9.1, you own the Intellectual Property Rights in Your Data, Your Content and Your Branding. You grant to us a non-exclusive right to use Your Data, Your Content and Your Branding to perform our obligations and exercise our rights under this Agreement.
9.3. We confirm that we have all the rights in relation to the JRNY Platform, Conversation Tools and Documentation that are necessary to grant all the rights we purport to grant under this Agreement.
9.4. We will indemnify you for any loss or damage you incur directly in relation to any third party claim resulting from our breach of the warranty in clause 11.2(b).
10.1. Each party (the Recipient) must:
- (a) keep strictly confidential any Confidential Information of the other party (the Discloser); and
- (b) only use the Discloser’s Confidential Information to exercise its rights and perform its obligations under this Agreement.
10.2. The obligations of confidentiality in clause 10.1 will not apply to information that:
- (a) the Recipient can clearly show was independently developed by the Recipient, or available to the Recipient from a third party with the right to disclose it;
- (b) is in the public domain through no fault of the Recipient or any other person to whom the Recipient discloses the information;
- (c) the Recipient is obliged by law, a regulator or the rules of any stock exchange to disclose, provided that it has first advised the Discloser of this obligation, has allowed the Discloser reasonable time to avoid the disclosure having to be made, and has given the Discloser any assistance (at the Discloser’s cost) the Discloser reasonably requests in doing this;
- (d) the Recipient discloses to its accounting, legal or technical services professionals for the purposes of them providing professional services to the Recipient, provided they have a need to know the information and are subject to confidentiality obligations at least equivalent to those in this clause.
10.3. Each party will on demand and, in any event, on termination of this Agreement, deliver to the other party all Confidential Information supplied by or obtained from the other party.
10.4. Notwithstanding any other provisions of this clause 10, we can mention or refer to your name, and identify you as a customer of JRNY, in any publicity or marketing collateral (including any case studies) and you grant us a continuing right to use Your Branding for such purposes, including after termination of this Agreement.
10.5. This clause 10 will survive termination of this Agreement.
11. Warranties and Liability
11.1. Each party warrants that it has the power and authority to enter into, and perform its obligations under, this Agreement.
11.2. We warrant that the Conversation Tools:
- (a) will function substantially as described in the Documentation; and
- (b) do not infringe the Intellectual Property Rights of any third party.
11.3. If the Conversation Tools do not function substantially in accordance with the Documentation, we will, at our option, either:
- (a) modify the Conversation Tools to conform to the Documentation; or
- (b) provide a workaround solution.
If neither of the options in paragraphs (a) or (b) is commercially feasible, either party may terminate this Agreement by giving written notice to the other party, in which case we will refund to you all Fees pre-paid to us for unused Services or unused access to the Conversation Tools. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the warranty in clause 11.2(a).
11.4. We will not be liable for a breach of either warranty in clause 11.2 to the extent any non-conformance or infringement is caused by:
- (a) Your Content, Your Data, or any instructions you provide to us;
- (b) your use of the Conversation Tools contrary to the Documentation or any other of our instructions; or
- (c) modification or alteration of the Conversation Tools, or integration with Other Applications, by any party other than us or our authorised contractors or agents.
11.5. Other than as expressly set out in this Agreement, we do not warrant:
- (a) that your use of the JRNY Platform or Conversation Tools will be uninterrupted or error-free;
- (b) that the JRNY Platform, Conversation Tools, Documentation or the information obtained by you through the Conversation Tools will meet your requirements or will always be available, either in its current form or at all;
- (c) that we will support, maintain or continue to offer the Conversation Tools; or
- (d) the accuracy, correctness, reliability or completeness of any information obtained through your use of the Conversation Tools or the Services.
11.6. You acknowledge and agree that:
- (a) you are solely responsible for ensuring the accuracy and correctness of any output or result from your use of the Conversation Tools;
- (b) we may rely on the provision of services by third parties (including data centre, electricity, telecommunications and outsourcing providers) in order to provide the Conversation Tools (Third Party Providers) and the Conversation Tools may be subject to limitations, delays and other problems inherent in the use of services provided by Third Party Providers; and
- (c) we will not be responsible for any delays, delivery failures, or any other loss or damage arising out of or in connection with any services provided by Third Party Providers.
11.7. Except as expressly set out in this Agreement, the JRNY Platform, Conversation Tools and Documentation are provided on an “as is” basis and all representations, conditions or warranties (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) in respect of the JRNY Platform, Conversation Tools and Documentation are expressly excluded.
11.8. You agree to pay us, on demand, the full amount of any costs, losses, expenses and damages we incur:
- (a) in connection with any claim that you, Your Data, Your Content, or any element of the Conversation Tools that you have instructed us to develop or implement, infringe the rights (including the Intellectual Property Rights) of any third party; or
- (b) resulting from your, or any Client Users’ or End Users’, use of the JRNY Platform, Conversation Tools or Documentation (except to the extent any such claim is a direct result of our breach of this Agreement).
11.9. Except for your liability under clause 11.8, a breach by either party of its confidentiality obligations or an infringement by either party of the other’s Intellectual Property Rights:
- (a) neither party will be liable to the other party for loss of profits, loss of revenue, loss of data, or any indirect, consequential or special loss or damage incurred by the other party as a result of anything done by the first party under this Agreement; and
- (b) our total liability arising out of all claims for loss or damage under this Agreement will not exceed in aggregate an amount equal to the Fees actually paid by you in the six months immediately prior to the first time you make a claim under this Agreement for any loss or damage.
11.10. You acknowledge and agree that no Client User can make a claim in relation to this Agreement, provided that where any Client User incurs any loss or damage which, if incurred by you, would be recoverable from us, then you can make a claim in relation to such loss or damage on the Client User’s behalf.
11.11. Each party will take reasonable steps to mitigate any loss or damage it incurs in connection with this Agreement.
12.1. During the Implementation Period, either party can terminate this Agreement on notice to the other party if clause 3.3(d) applies or where both parties agree the Go/No-Go Criteria have not been met.
12.2. Following Go-Live, either party can terminate this Agreement without cause by giving the other party at least 60 days’ prior written notice, provided that termination under this clause 12.2 can only come into effect following the conclusion of any Fixed Term.
12.3. Either party can terminate this Agreement immediately at any time on notice to the other party if the other party:
- (a) is in material breach of this Agreement and fails to remedy the breach within 14 days of receiving notice from the other party specifying the breach and requiring it to be remedied; or
- (b) goes into liquidation or has a receiver or statutory manager appointed in respect of any of its assets, becomes insolvent or makes any arrangement with creditors.
12.4. On termination or expiry of this Agreement for any reason:
- (a) you must pay the Fees due on a pro-rata basis for each day up to and including the date of termination of this Agreement;
- (b) all licences granted under this Agreement will immediately terminate and you must cease using the JRNY Platform, Conversation Tools, Documentation and JRNY Marks;
- (c) each party will return, and make no further use of all property and materials (and all copies of them) belonging to the other party;
- (d) on request we will provide you, via the JRNY Dashboard, with any data created as part of the Analytics Services, in a meaningful and usable format specified by us; and
- (e) the accrued rights of the parties as at termination will not be affected or prejudiced.
12.5. We can delete or purge any of Your Data which is not provided to you under clause 12.4(d) above at any time following termination of this Agreement.
12.6. If you terminate this Agreement under clause 12.1 or we terminate this Agreement under clause 12.3, you will not be entitled to a refund of any Fees prepaid to us for unused Services or access to the Conversation Tools.
13.1. We can sub-contract any of our obligations under this Agreement without your consent.
13.2. If we use a sub-contractor, we are not relieved of any of our liabilities or obligations under this Agreement.
14.1. If a dispute occurs relating to this Agreement (Dispute), a party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with this clause, except where the party seeks urgent interlocutory relief.
14.2. A party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute.
14.3. On receipt of that notice, the parties will use all reasonable efforts to resolve the Dispute by discussion, consultation, negotiation or other informal means.
14.4. If the Dispute is not resolved within 15 Business Days of the notice being given pursuant to clause 14.2 (or within any further period agreed in writing by the parties), either party may, by giving written notice to the other party, require the Dispute to be determined by the arbitration of a single arbitrator. The arbitrator will be appointed by the parties or, failing agreement within five Business Days of the notice requiring arbitration, by the President of the New Zealand Law Society on application of either party. The arbitration will be conducted as soon as possible and in accordance with the provisions of the Arbitration Act 1996.
15. Unavoidable Events
15.1. Neither party will have any liability under this Agreement for any delay or failure to perform its obligations if the delay or failure is caused by any event beyond that party’s reasonable control and the delay or failure could not have been prevented by following Good Industry Practice (Unavoidable Event). If an Unavoidable Event happens, the affected party must promptly give written notice of the fact and circumstances of the Unavoidable Event to the other party and use its best efforts to mitigate any effects.
16.1. This Agreement is the entire agreement between you and us about its subject matter and replaces any previous understandings or agreements about that subject matter.
16.2. This Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.
16.3. If any part of this Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement will continue to operate.
16.4. A provision or a right under this Agreement may not be waived except in writing signed by the party granting the waiver.
16.5. A party can exercise a right, power or remedy under this Agreement at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party under this Agreement does not prevent a further exercise of that (or any other) right, power or remedy.
16.6. You will not assign, transfer or otherwise deal with this Agreement or any of your rights or obligations under this Agreement, whether in whole or in part, without our prior written consent.
16.7. Notices and other communications under this Agreement are to be given in writing by email, personal delivery or by post and must be:
- (a) sent to the correct email or address specified in writing by each party for that purpose from time to time. The designated email address for notices you send to us is firstname.lastname@example.org; and
- (b) marked for the attention of the designated person or office holder (if any).
16.8. A notice or communication in relation to this Agreement will be deemed to be received:
- (a) in the case of a letter, on the tenth Business Day after posting; or
- (b) in the case of email, on the Business Day on which the email is successfully delivered; and
- (c) in the case of personal delivery, when delivered.
16.9. This Agreement will be governed by and interpreted in accordance with the laws of New Zealand. If you wish to bring any claim or other action against us in connection with this Agreement then you must bring that claim or other action against us in New Zealand.