SMX Terms and Conditions as of June 2022
Overview
SMX is an established and premium cyber security service provider specialising in email cyber security, secure email gateway, email archiving cloud hosted service offerings and other related service offerings (the “SMX Offerings”).
Use of our Services and Online Provisioning Form
You wish to use certain SMX Offerings. Unless you and SMX have prior executed a physical copy of the same terms and conditions set out in this electronic version of the Agreement, then, upon your acceptance of the Online Provisioning Form, that electronic form, and, this Agreement and its terms and conditions, together shall constitute the binding contractual relationship between you and us effective from the Service Start Date.
1. Definitions and Interpretation
1.1 Unless the context otherwise requires, the following expressions have the following meanings:
“Affiliate” means any entity that directly or indirectly controls a party, or, is controlled by, or under common control, with a party, with “control” meaning ownership of fifty percent (50%) or more of the voting equity interests or the power to otherwise direct the affairs of the applicable entity.
“Agreement” means:
(a) clauses 1-18 as set out;
(b) any schedules incorporated into by reference; and
(c) an applicable Online Provisioning Form.
“Authorised User” means:
(a) you; and
(b) in relation to you: (a) an employee; or (b) an independent contractor; or (c) any device that has its own mailbox or an SMX Archive repository (i.e., a printer) that uses an SMX software product or service
-per authorised use in accordance with this Agreement.
“Business Day” means any day other than a Saturday, Sunday, bank holiday or public holiday in Auckland, New Zealand or Sydney, New South Wales, Australia (as applicable).
“Claim” includes any claim, demand, suit or proceeding.
“Confidential Information” means any trade secrets or other confidential and/or proprietary information that is disclosed by a party to the other party under or in relation to this Agreement and that is either:
(a) conspicuously marked or otherwise identified as confidential or proprietary at the time of disclosure; or
(b) should reasonably be understood by the receiving party to be confidential based upon the nature of the information disclosed or the circumstances of the disclosure -
and Confidential Information specifically includes SMX operational, pricing and commercial information in relation to the Services, and, otherwise where of a technical, business or other nature including, but not limited to, materials, documents or other information (physical or electronic) relating to any of a party's technology, research, designs, development, methodologies, products (including software (whether source code, object code and related source code materials)), services, pricing of products or services, customers, Personnel, IPR, marketing and /or other strategic plans, finances, contracts, legal or business affairs but does not include any information that:
(c) the receiving party can demonstrate was known to the receiving party prior to disclosure by the disclosing party, other than as a result of a negligent act or omission in relation to, or, a breach of, this Agreement; or
(d) is in the public domain, or, which enters the public domain other than as a result of a negligent act or omission in relation to, or, a breach of, this Agreement; or
(e) the receiving party independently develops or independently becomes aware of from a third party without, to the knowledge of the receiving party, a duty of confidentiality to the disclosing party.
“Cookie Policy” means SMX's Cookie Policy which, on the Services Start Date, is available here and as amended from time to time by us.
“Customer Data” means data (that may include Personal Information) an Authorised User provides or discloses to us, that is processed pursuant to the Services.
“Documentation” means SMX's standard software product or services user guide content primarily focused on Authorised User setup and configuration processes and accessible via the SMX Portal (Customer/ Authorised User) web page-see https://docs.smxemail.com/ (as amended from time to time by us).
“Early Termination Fees” means as referred to in clause 15.3.
“Fees” means the amounts as calculated based on the applicable rates or fixed amounts as set out in the Online Provisioning Form (or based on such other rates or amounts as notified by us in writing from time to time per clauses 3.2.2 or 3.2.3).
“Force Majeure Event” means event or circumstance which is beyond the reasonable control of a party and prevents or delays performance of or compliance with its obligations under the Agreement or the operation of its business (including delivery of services) including that arising from war, riot, emergency government public health regulations, cyber-attack, natural or man-made disaster but excluding any event or circumstance that could have been mitigated or prevented by the exercise of reasonable care.
“GST” means, as applicable, either the: i. goods and services tax imposed under the Goods and Services Tax Act 1985 for NZ; or ii. A New Tax System (Goods and Services Tax) Act 1999 (Cth) for Australia.
“Initial Term” means as set out in clause 3.1.
“Intellectual Property Rights”means any of copyright (including any right in software), patent, utility model, registered design, unregistered design right, industrial design, domain name rights, moral rights, database right, and any trade secret, trade or service mark, trade or business name, goodwill or rights in Confidential Information (including the right for such information to be kept confidential),know-how and any other intellectual proprietary right (whether or not such rights are registered or capable of being registered).
“MX Record” means the resource record in the domain name system that specifies your mail server responsible for accepting email messages on behalf of your domain.
“Online Provisioning Form” means the online form, or, an email confirmation, completed by the parties that sets outs the agreed Services, the Services Start Date, and that is part of and incorporated by reference in this Agreement.
“Personnel” means, as applicable, your or our employees or contractors.
“Personal Information” has the meaning given in the Privacy Act.
“Privacy Act” means, as applicable, the Privacy Act 2020 for New Zealand or the Privacy Act 1988 (Cth) for Australia.
“Privacy Laws” means: i. in relation to New Zealand the Privacy Act and the Privacy Regulations 2020; and ii. In relation to Australia, the Privacy Act 1988 (Cth) and Privacy Regulations 2013; and: iii. as applicable, any codes of practice issued by the Privacy Commissioner (New Zealand) or the Informational Commissioner (Australia) under the applicable laws or other privacy legislation or regulations that apply in relation to Personal Information (as referred to in clause 14).
“Privacy Policy”means SMX’s privacy policy (as at the Services Start Date) in relation to an SMX website user, the SMX email admin Portal (Customer) or other Services accessed or used by Authorised Users, as set out at SMX’s website at https://smxemail.com/privacy-policy/ (as amended by us from time to time).
“Reasonable Use Policy” means SMX’s Reasonable Use Policy in relation to the Services (as at the Services Start Date) as set out on SMX’s website at https://smxemail.com/reasonable-use-policy/ (as amended from time to time by us).
“SaaS Services” means the following cloud-based services supplied by SMX:
i. An email service known as “Secure Email Gateway”;
ii. An email archiving product known as “SMX Email Archiving”;
iii. A secure encryption gateway-to-gateway email service known as “SEEMail” that provides confidentiality, authentication, integrity and non-repudiation for emails between participating Trusted Partners (as understood in this context)
- and as set out in an Online Provisioning Form (as amended from time to time by us).
“Service(s)” means any of:
(a) the SaaS Services;
(b) SMX Domain Protection managed service as further described in an Online Provisioning Form (as amended from time to time by us);
(c) SMX Support Services;
(d) other agreed services supplied by us (and as specified in an applicable Online Provisioning Form) after the Service Start Date; and
(e) where the context requires, an individual service component of the services referred to in paragraphs (a) or (b) or (c) or (d) above.
“Service Start Date” means in relation to a Service, the date set out in the applicable Online Provisioning Form, or, if no date is specified, the first date that the Service is made available by us for use by an Authorised User as notified by us to you.
“SMX Domain” means the domain to which you direct your MX Record in order to receive the benefit of the Services.
“SMX Marks “means SMX owned or licensed trade names, logos, trademarks or service marks, being the SMX Trade Name and SMX Logo.
“SMX Platform” means the multi tenanted Sydney or Melbourne (Australia) located MZ Azure instance that runs and makes available for Authorised Users applicable Services.
“SMX Support Services” means the SMX phone and email-based support services for the applicable Services provided to you referred to in clause 5.3 and as set out at the SMX website at https://smxemail.com/help-support/support/ (as updated by us from time to time).
“SMX” means as applicable SMX New Zealand Limited, where you as the contracting entity are operating your business in New Zealand, or SMX Australia Pty Limited, where you as the contracting entity are operating your business in Australia. SMX in this Agreement is also referred to as “we” or “us“.
“Systems” means the communication equipment, computer resources and the data stored on the communication equipment and computer resources, and, in relation to SMX, specifically includes the SMX Platform.
“Term” means the Initial Term and or any renewed term thereafter, in accordance with clause 3.1.
“Virus” means any software, code, file, programme devices or other devices including “time bombs”, “worms”, “viruses”, “Trojan horses”, “protect codes”, “data destruct keys”, “ransomware”, “malware”, “backdoors” that are designed to access, modify, delete, damage, deactivate or disable the Services and/or Customer Data and which are designed to prevent, impair or otherwise adversely affect the operation of any Systems or network or any telecommunications service, equipment or network or any other service or device or otherwise adversely affect the Authorised User experience.
“You” means the applicable contracting entity, operating in the New Zealand market, or, operating in the Australia market, which agrees and or accepts the Online Provisioning Form and then has the right to use the Services from the Service Start Date.
1.2 In this Agreement and its terms and conditions, unless the contrary intention appears:
(a) headings are for ease of reference only and do not affect interpretation;
(b) the singular includes the plural and vice versa;
(c) a reference to a party is to a party to this Agreement and includes the party’s executors, administrators, successors or permitted assignee or novatee;
(d) a reference to a clause, term is a reference to a clause or term of, to this Agreement
(e) a reference to a Person includes a natural person, partnership, joint venture, body corporate, association, trust, governmental agency or other legal entity;
(f) a reference to a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, code made under legislation, order in council, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;
(g) a reference to monetary amounts is in New Zealand dollars; and
(h) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it.
2. Scope
This Agreement sets out terms and conditions for the provision of Services by us to you, your use of the Services, and our and your mutual rights and obligations.
3. Term
3.1 Initial Term
This Agreement commences on the Service Start Date and continues in effect for an initial period of 36 months (the “Initial Term”) unless this Agreement is earlier terminated pursuant to clause 15.
3.2 Renewal
3.2.1 At the expiry of the Initial Term, the Initial Term shall automatically renew thereafter and continue for rolling 12-month periods on the same terms and conditions (subject to the renewal process set out in Section 3.2.2) unless either:
i. at least 90 calendar days before the expiry of the Initial Term or any renewed term (as applicable) SMX or you give written notice to the other that it does not wish to renew the Agreement for a further 12-month period; or
ii. the Agreement is otherwise terminated pursuant to clause 15.
3.2.2 Subject to Section 3.2.3,in the event that the Initial Term or any subsequent term is renewed per clause 3.2.1, then in the 90 calendar day notice period before the expiry of the applicable term but no later than 30 calendar days before the expiry date (unless varied by SMX in writing) SMX may notify you in writing of any changes to the Fees to take effect from the commencement date of a renewed term and this may include, at SMX’s discretion, a minimum percentage increase in the Fees for each renewed 12 month period being no less than the percentage increase in the consumers price index (per Stats New Zealand or Consumer Price Index (Australia),as applicable) in the 12 month period up to the date of the Fees review by SMX.
3.2.3 Notwithstanding Section 3.2.2, SMX reserves the right to review the Fees at any time during the Term where it reasonably determines that, due to adverse material economic conditions, an increase in the Fees is necessary. In such circumstances it will notify you by email with the proposed increase. The increase will take effect no later than 30 calendar days after the date the email is sent to you.
4. Services Access and Use Grants
4.1 Free trial period Services grant
4.1.1 Where agreed, then on and from an applicable Service Start Date, we grant you the non-exclusive, non-transferable right to access and use:
(a) the Services; and
(b) the Documentation
-free of charge for a period of 30 calendar days for the number of Authorised Users specified in the Online Provisioning Form (the “Trial Period”).
4.1.2 Unless you elect to end the provision of the Services per clauses 4.1.3 or 4.1 4 below, your access to the Services will continue in accordance with clause 4.2 below.
4.1.3 If you wish to terminate access to the Services before or at the end of the Trial Period you must:
(a) notify us in writing before the end of the Trial Period; and
(b) ensure that your MX Record is removed from the SMX Domain.
4.1.4 Where notice of termination has been received before the end of the Trial Period, but your MX Record has not been removed from the SMX Domain, we may invoice you at the applicable Services rates (per the Online Provisioning Form) for the Services until the later of:
(a) 30 calendar days from the end of the Trial Period; or
(b) the removal of the MX Record from the SMX Domain.
4.2 Fees based Services grant
4.2.1 From the applicable Service Start Date (or, as applicable per clause 4.1.2, the day following the end of the Trial Period) in consideration for the payment of the Fees (per clause 4.2.2), we grant you for the Initial Term (or the balance of the Initial Term (where a Trial Period applied per clause 4.1)) a non-exclusive, non-transferable right to access and use the Services and the Documentation.
4.2.2 The Fees will be invoiced by us (per clause 8.2) at the applicable rates in accordance with the applicable Online Provisioning Form.
5. SMX Services-Specific rights and obligations
5.1 Service standards
We will provide the Services with due care and skill, but we expressly do not represent or warrant that the Services will either be available at all times or uninterrupted or error or fault-free.
5.2 Services provision – Restriction or Suspension
We may limit or suspend the provision of the Services by immediate written notice (where practicable) if an Authorised User’s use of the Services breaches our Reasonable Use Policy or for cyber security-related reasons (including proactively for an expected violation or reactively for an actual violation including in relation to a Virus or as otherwise notified by the Customer per clause 6.1.2 (g)). Notwithstanding any exercise of this right to limit or suspend the Services SMX reserves at all times its termination rights under clause 15.
5.3 SMX Support Services
You can select the following SMX Support Services categories:
i. Silver Support
This is the default entitlement for all customers using current Services. The SMX service desk is available for you and your designated administrator 8am to 7pm NZ time Monday to Friday excluding public holidays.
ii. Gold Support (non-telecommunication as a service (“TAAS”))
Where pursuant to the Online Provisioning Form or as otherwise agreed in writing you require Gold Support, the SMX service desk phone and email support are available 24x7 including public holidays. In relation to P1 and P2 (per the SMX Support Documentation) these incidents will be responded to between NZ time 7pm and 8am and all others prioritized for the following New Zealand Business Day provided that, where the P1/P2 incidents are caused by SMX in relation to the SMX Platform, SMX will provide support to all customers regardless of their support category selection.
6. Your Obligations and Responsibilities
6.1 Services access and use
6.1.1 At all times during the Term you:
i. are responsible and liable for any authorised use by Authorised Users or unauthorised use of the Services and Documentation;
ii. acknowledge and agree that your access and use of the Services and Documentation is subject to our Reasonable Use Policy.
6.1.2 At all times during the Term you shall:
(a) ensure that the Services are used only by you and Authorised Users for lawful internal business requirements or purposes;
(b) ensure that, in addition to you, all Authorised Users comply with the Agreement in relation to access and use of the Services;
(c) ensure that no Services are transferred to, accessed or used (by any means) by any person other than the Authorised Users;
(d) ensure that all information provided by you or on your behalf to us in relation to the Authorised Users is accurate, current and complete;
(e) subject to clause 6.2, ensure that the number of Authorised Users does not exceed the number specified in the applicable Online Provisioning Form. In the event you wish to increase the number you must advise us in writing in advance and we must first agree in writing (by email) to the proposed increased number of Authorised Users;
(f) ensure that all Authorised Users keep secure and confidential their SMX Services account ID, login ID, username and password provided you acknowledge that SMX in providing an account ID, login ID or username, does not grant or transfer any other any rights in such matters other than to use in relation to the Services and Documentation;
(g) inform us by email or by phone (either our customer relationship manager or Support Services team, or, where failing to contact these persons, then to contact SMX’s CFO) as soon as you become aware of any unauthorised or suspicious activity relating to the use of the Services or if you believe the security of your SMX Services account has been compromised in any way;
(h) be solely responsible for: i. ensuring that your network and Systems comply with the relevant minimum technical specifications specified by us from time to time; and ii. for procuring and maintaining a network connection and internet link to use in connection with the Services; and
(i) use reasonable endeavours to ensure that your network and Systems do not contain any Viruses before using the Services and remain free of any Viruses. In the event you become aware of any Virus on your network or Systems that you reasonably suspect could adversely affect the Services, then, you must immediately notify us by email or phone (to either our customer relationship manager or Support Services team, or, where failing to contact these persons, then to SMX’s CFO).
6.2 Audit
You acknowledge that SMX has the right to conduct an audit (a minimum once every 6-month period during the Term) of your total Authorised Users in relation to email boxes sending and receiving messages per the Secure Email Gateway Service in order to generate a report with respect to this information. SMX shall, based on the report, have the right to issue further invoices (per clause 8.2) for any additional Authorised Users that SMX has not invoiced you for the applicable period relating to Authorised Users’ use of the Services and to be based on the applicable Fees rates set out in the Online Provisioning Form that applied at the time the Services were accessed and used. You must, on receipt of such an invoice, pay us within 7 calendar days.
6.3 Customer Data
6.3.1 In relation to Customer Data:
i. you authorise us to access, view, process and otherwise use Customer Data (including certain underlying meta data in order for SMX’s third party service providers to review and improve cyber security protection) solely as necessary to provide the Services; and
ii. you warrant you have the legal right and authority to authorise us to access, view, process and otherwise necessarily use Customer Data to provide the Services to you and your Authorised Users in accordance with this Agreement.
6.3.2 The Customer (and its Authorised Users) shall retain all proprietary or other use rights in the Customer Data. Other than as authorised under clause 6.3.1, SMX will not use the Customer Data (including the meta data component of such Customer Data other than as stated above) for any other business purposes.
6.3.3 The Customer will: (a) defend at its own expense any action against SMX arising from a breach of clause 6.3.1 (a “Customer Data claim”);and (b) indemnify SMX from and against any liabilities, losses and expenses attributable to a Customer Data claim as determined by final judgment, or, alternatively, those amounts agreed by way of a settlement provided that: (1) Customer will not consent to any judgment or enter into any settlement negatively affecting SMX without the prior written consent of SMX (not to be unreasonably withheld); and (2) the foregoing Customer obligations are subject to SMX: (i) notifying the Customer promptly in writing of a Customer Data claim; (ii) giving the Customer control of the defence and any settlement negotiations (subject to SMX’s consent per above); and (iii) reasonably assisting, at the Customer’s written request and expense, in the Customer Data claim process.
7. MX Record
You (and will ensure that other Authorised Users) create and control all MX Records and you will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the MX Record.
8. Fees and Payment
8.1 Fees
In consideration for the provision of Services by SMX you must pay the Fees in accordance with this clause 8 and the applicable Online Provisioning Form.
8.2 Invoicing
SMX will invoice you monthly in advance (or prorated where applicable) in accordance with the applicable Online Provisioning Form for the Fees payable in respect of the Services (subject to clause 6.2 and the monthly true process and any other adjustment pursuant to clause 8.3). You must pay each invoice within 14 calendar days of the date of such invoice to the notified SMX bank account (the “Payment Date”).
8.3 Monthly Invoicing True Up
(a) It is acknowledged by you that the SMX monthly in advance invoicing process (per clause 8.2) is based on a true up process that requires you, on or about the 15th day of each month, to notify SMX of any increase in the total Authorised Users number from the total Authorised Users number set out in the monthly in advance invoice received by you at the beginning of that month. SMX will then prepare the next monthly invoice in advance based on any required adjustment.
(b) You shall notify SMX’s by email promptly when it becomes aware that the monthly Authorised User numbers notified under Section 8.3 (a) are incorrect and the number of Authorised Users is higher.
(c) In the event you fail to notify SMX during the Term the correct monthly total Authorised End Users, then, once SMX becomes aware of the correct number, SMX has the right to issue further invoices (per clause 8.2) for any additional Authorised Users that SMX has not invoiced you for the applicable period relating to Authorised User use of the applicable Services.
8.4 Late payment
8.4.1 Non-payment Notice and SMX rights:
If you fail to pay any invoice when due by the Payment Date (unless where you have notified us in writing by the due date that you dispute on reasonable grounds (as set out) part or all of the amounts due), then, without prejudice to any of our other rights and remedies:
(a) we will send you a notice of your failure to pay such invoice (a “Non-payment Notice”) and you will then have a further 14 calendar days after the date of the Non-payment Notice to pay any amount remaining unpaid; and
(b) if we do not receive payment after 14 calendar days of the Non-payment Notice being sent, we may, as as notified by us in writing (email is sufficient) to your management), without liability to you:
(i) disable and suspend access to all or part of the Services; and/or
(ii) cease to provide any of the Services; and/or
(iii) remove all Customer Data connected with the Services from our Systems.
8.4.2 Interest on late payment
SMX shall at its election charge Interest on the amounts remaining unpaid after the Payment Date at an annual rate of 8% interest per annum (calculated on a daily basis) until the amount is paid in full.
8.5 Enforcement Costs
All costs and expenses (including legal and/or debt collection agency costs) we incur in enforcing or attempting to enforce our rights under this clause 8 will be payable by you.
9. GST
9.1 GST Act
In this clause 9, a word or expression defined in the GST Act has the meaning given to it in that Act appropriate for your jurisdiction (New Zealand or Australia).
9.2 Exclusive or Inclusive GST
Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as GST inclusive, excludes an amount on account of GST. Where the expression “GST inclusive” is used in relation to an amount payable or other consideration to be provided for a supply under this Agreement, the amount or consideration will not be increased on account of any GST payable on that supply.
9.3 GST Amount
Where a party (“GST Supplier”) makes a supply under or in connection with the Agreement on which GST is imposed (not being a supply of the consideration for which is specifically described in the Agreement as GST inclusive):
(a) the consideration payable or to be provided for that supply under the Agreement but for the application of this clause 9.3 (“GST exclusive consideration”) is increased by, and the recipient of the supply (“Recipient”) must also pay to the GST Supplier, an amount equal to the GST payable by the GST Supplier on that supply; and
(b) the amount by which the GST exclusive consideration is increased must be paid to the GST Supplier by the Recipient without set-off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
9.4 Indemnification or reimbursement amounts
If a payment to a party under the Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense. That party is assumed to be entitled to a full input tax credit unless it proves, before the date on which the payment must be made, that its entitlement is otherwise.
9.5 Percentage based amounts
If a payment is calculated by reference to or as a specified percentage of another amount or revenue stream, that payment will be calculated by reference to or as a specified percentage of the amount or revenue stream net of any GST component.
9.6 GST Invoice
The GST Supplier must give a Recipient a tax invoice for a taxable supply under or in connection with this Agreement to which the GST payment relates.
9.7 Adjustment notes
The GST Supplier must give the Recipient an adjustment note for an adjustment arising from an adjustment event relating to a taxable supply made under or in connection with this Agreement as soon as the GST Supplier becomes aware of the adjustment event.
9.8 Withholding tax
No amount to be paid by your to SMX under this Agreement will be subject to deduction for withholding taxes relating to the amount to be paid to SMX unless it is required by law.
10. Warranties and Representations Scope
10.1 Subject to clauses 10.2 and 10.3, and to the maximum extent permitted by law SMX excludes: i.all representations and warranties in relation the Services and service level performance compliance (other than as expressly stated in the Documentation); and ii. otherwise, any other representations, warranties, guarantees, indemnities, undertakings, terms or conditions that would be implied in, or affect, this Agreement by statute, regulation or common law or otherwise by law.
10.2 To the extent that you are a “consumer” for the purposes of the New Zealand Consumer Guarantees Act 1993 or the Australian Consumer Law (contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth)), nothing in the Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by that Act (a “Non-Excludable Guarantee”).
10.3 To the maximum extent permitted by law, our liability for breach of a Non-Excludable Guarantee is limited, at our option, to:
(a) in the case of goods, any one or more of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; or
(b) in the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
11. Limitation of Liability
11.1 Limited Liabilities
To the maximum extent permitted by law and subject to clause 11.2, a party’s maximum aggregate liability to the other party arising from a Claim for reasonably foreseeable damages, liabilities, losses or expenses caused directly by a breach of the Agreement or negligence in relation thereto or other cause of action, shall in a 12-month period not exceed an amount equal to the amounts paid or payable by you to SMX in that 12-month period provided that this capped liability shall not apply to: i. the Customer’s liability under clauses 6.3.3,11.3, 12.4 or 13.7; or ii SMX’s liability pursuant to clause 12.5 or under clause 13.
11.2 Excluded Liabilities
A party shall not be liable to the other party under this Agreement for any loss of profit (whether direct or indirect in nature), loss of anticipated revenue or savings, loss of or corruption to data, or any indirect, consequential or special losses, damages or costs caused by a breach of an Agreement or negligence in relation thereto or any other cause of action.
11.3 Claims by certain Persons against SMX
In the event that a Person (including any Authorised Users (but excluding in this context you, the contracting entity hereunder)) believes they have a Claim against SMX arising from a SMX breach of this Agreement or negligence in relation thereto or other cause of action arising in relation to this Agreement, then only you, on behalf of such Person(s), may initiate and engage in such a Claim against SMX. In the event of such a Claim, where it is determined that this Claim arises from or in connection with your breach of this Agreement or negligence in relation thereto or from another cause of action with respect to your acts or omissions, then you will indemnify SMX against any losses, costs (including solicitor and client costs), expenses, damages or liabilities sustained or incurred by us arising out of or in connection with any such Claim,
12. Intellectual Property Rights
12.1 Acknowledgement
You acknowledge that we (or any service provider/licensors to us (in relation to the provision of Services and Documentation and the SMX Systems) are respectively the sole owner(s) of all proprietary rights (including Intellectual Property Rights) in Services, Documentation and the SMX Systems, and, upon creation, in any modification or enhancement or new materials created in relation to the Services, Documentation or the SMX Systems after the Service Start Date and during the Term. You acknowledge no right, title or interest in such SMX Intellectual Property Rights (or that of its service providers/licensors) is granted by SMX (or its service providers/licensors) to you.
12.2 IPR Limitations
You must not nor may you permit any other Person to:
(a) copy, alter, modify, reproduce, reverse assemble, reverse compile or enhance, as applicable, the Services, Documentation or the SMX Systems;
(b) alter, remove or tamper with any SMX Marks, any patent or copyright notices, or any confidentiality, proprietary or trade secret, legend or notice, or other means of proprietary identification used on or in relation to the Services, Documentation or the SMX Systems;
(c) do any act that would or might invalidate or be inconsistent with the above Intellectual Property Rights.
12.3 IPR Enforcement
At all times you must notify SMX promptly in writing of: (i) any actual, threatened or suspected infringement of any IPR referred to in clauses 12.1 and 12.2 that you become aware of it; and (ii) subject to clause 12.5, any claim by a third party that use of and/or access to Services, Documentation, SMX Systems or SMX Marks infringes the IPR of a third party. You shall (at SMX’s expense) do all such actions as may reasonably be required by SMX to assist SMX in pursuing or defending any proceedings in relation to any such infringement Claims.
12.4 Your Indemnity
You indemnify SMX against any losses, costs (including solicitor and client costs), expenses, damages or liability sustained or incurred by us arising out of or in connection with a Claim by any Person alleging infringement of a Person's Intellectual Property Rights if such Claim arises from, or in connection with, any infringement, suspected infringement or alleged infringement caused by by your breach or negligence or other cause of action with respect to your acts or omissions arising from or in relation to this Agreement.
12.5 SMX Indemnity
SMX indemnifies you against any direct loss, costs(including solicitor and client costs) expenses or damages sustained or incurred by you as a result of a Claim by a third party Person against you that the Services, Documentation or SMX Systems or SMX Marks infringes the Intellectual Property Rights of the third party Person:i. subject to you allowing us to direct any defence and settlement of the Claim and promptly notifying us in writing of any such Claim; ii. provided this indemnity does not apply to the extent the Claim arises out of a. any modification of any of the Services, Documentation, SMX Systems or SMX Marks by you; or b.is otherwise caused (or contributed to) by you. In addition, with respect to third party service provider services provided to SMX (as part therein of the Services provided by SMX to you) then the SMX’s indemnity herein only applies to the extent of the IPR Infringement indemnity scope set out in the SMX contract(s) with such service provider(s). You acknowledge that in the event a third-party Person makes such a Claim, we may modify, restrict the scope of or suspend for such period (we reasonably determine is necessary) or cease the provision of the Services (including the availability of the SMX Systems), if required, to mitigate the Claim, or, as part of an agreement for the Claim to be withdrawn.
13. Confidential Information
13.1 A party shall protect the confidentiality of the other party’s Confidential Information in the same manner as it protects the confidentiality of its own similar information, but in no event using less than a reasonable standard of care.
13.2 A party will restrict disclosure and access to the Confidential Information strictly on a need-to-know basis only:
i. to those of its Personnel (including such Personnel employed by its Affiliates); or
ii. to any other person based on prior written consent
- in either case always provided such parties are bound in writing by the obligations of confidentiality no less protective than set out in this Agreement.
13.3 In addition to clause 13.2, where disclosure of Confidential Information is necessary due to mandatory applicable law or rules of a stock exchange (that apply to a listed party) then the disclosing party must: (a) promptly notify the other party in writing specifying the disclosure requirement and proposed scope of Confidential Information to be disclosed and date of disclosure; and (b) disclose only the information required to be disclosed (and, to the extent permitted by the law or rules, redacted or exclude certain Confidential Information of a party as notified in writing by that party); and (c) use its reasonable endeavours to obtain a written confidentiality undertaking from the person to whom the disclosure is required.
13.4 Each party agrees to implement such reasonable but necessary informational security processes to protect and secure Confidential Information from misuse or unauthorised disclosure.
13.5 Upon written request or otherwise upon termination pursuant to clause 15, a party will: (a) subject to clause 15.4, return to the other all copies of Confidential information of the other party that it received pursuant to this Agreement; or (b) certify in writing that it has deleted permanently or destroyed any copies of such Confidential Information.
13.6 The confidentiality obligations set out in this clause 13 will survive the expiry or earlier termination of this Agreement for a period of two (2) years thereafter.
13.7 You indemnify SMX against any losses, costs (including solicitor and client costs), expenses, damages or liabilities sustained or incurred by us arising out of, or in connection with, any unauthorised disclosure or use of the Confidential Information by you or anyone acquiring such Confidential Information through you.
14. Privacy and Security
14.1 Privacy
14.1.1 A party must comply with all Privacy Laws in relation to any Personal Information which is processed, collected, stored, used or disclosed in connection with or for the purposes of this Agreement and not do or omit to do anything that would cause the other party to breach such Privacy Laws.
14.1.2 SMX will handle all Personal Information in accordance with our Privacy Policy. In respect of any Personal Information, that forms part of the Customer Data that you input or store pursuant to the use of the Services, we, as a data processor (or sub-processor). acting on your behalf, will comply with all lawful and reasonable instructions from you in relation to such processing to assist you in meeting your obligations under applicable Privacy Laws.
14.1.3 You hereby consent to and confirm that you have obtained the necessary consents from Authorised Users and any other applicable Persons to our use and disclosure (in accordance with the Privacy Policy) of any Personal Information about you or an Authorised User or where such Personal Information is included in any Customer Data that you input or store pursuant to the use of the Services.
14.1.4 In the manner as set out in and subject to any restrictions set out in SMX’s Privacy Policy, we may transfer to, store, or process Personal Information in any country where we or our third-party service providers are located or have facilities that are used to provide or support the Services.
14.1.5 You must on or before the Service Start Date notify us in writing if you (and/or the Authorised Users) are subject to Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation) (“GDPR”). To the extent that you are subject to the GDPR, we will comply with our obligations as a data processor (as such term is defined in the GDPR) in respect of any Personal Information that we may process in connection with your use of the Services including in accordance with a standard contractual clause or a separate data processing agreement. The latter, on execution, will be deemed a supplement to this Agreement.
14.2 Security
14.2.1 Generally a party must notify the other party in writing immediately, if it becomes aware of any likely or actual breach of its obligations under this clause 14, and immediately comply with any reasonable written direction of the other party with respect to actions to mitigate and remedy that breach to the extent permitted by law.
14.2.2 Specifically in relation to SMX it maintains such security safeguards, as it is reasonable in the circumstances to take, to protect against the accidental loss, unauthorised access, use, modification or unlawful disclosure and other misuse of Personal Information (and as specified in the Privacy Policy). If SMX becomes aware of any accidental loss, unauthorised access, use, modification or unlawful disclosure or other misuse of Customer Data (including Personal Information) (a “Data Breach”), we will, as soon as reasonably practicable, notify you in writing of the full details of the Data Breach and reasonably co-operate with you in respect of any internal or regulatory investigation that you are subject to relating to the Data Breach. You will, as soon as practicable, inform SMX’s CFO and Privacy Officer of the nature and process of such an investigation and any compliance timelines.
14.2.3 As disclosed in the Privacy Policy SMX may engage third party service providers to provide certain Services on our behalf. The third-party service providers will have access to and use of Customer Data (including Personal Information) solely to the extent necessary and for the purpose of delivering the Services (or part of Services) that we have engaged them to provide. SMX will ensure that any sub-contract entered into for the purpose of fulfilling its obligations under this Agreement imposes on the applicable third-party service provider substantially similar obligations as we have under this clause 14. SMX shall remain responsible for all acts and omissions of a third-party service provider to the same extent as if those acts or omissions were performed by SMX.
15. Termination
15.1 Termination for Convenience
Subject to clauses 4.1.3 and 4.1.4, you must give us at least 90 calendar days' notice (the “Notice Period”) in writing to terminate this Agreement for convenience prior to the expiration of the Term, subject to clause 15.3. You acknowledge and agree that we are entitled to continue to invoice you up to the expiry of the Notice Period, and you must pay all undisputed amounts so invoiced including those due per clause 15.3.
15.2 Cause
A party may immediately terminate the Agreement by giving notice in writing to the other party (a “Notice of Termination”) where the other party:
(a) materially breaches the Agreement and the breach is incapable of remedy; or
(b) materially breaches the Agreement (including a failure to pay a Fees amount when due) and fails to remedy that breach within 10 Business Days of written notice of that breach having been given to the other party; or
(c) an application or order is made for the winding up or dissolution of the other party (except for the purpose of a solvent amalgamation or reconstruction) or the appointment of a receiver, statutory manager, provisional liquidator or liquidator, administrator or trustee or similar official to the other party’s assets or undertakings or an assignment for the benefit of the other party’s creditors or the other party compounding with its creditors or being unable to pay its debts in the ordinary course of business.
15.3 Early Termination Fee
15.3.1 If you terminate the Agreement pursuant to clause 15.1, we may invoice you (in addition to any other remedies we may have against you) for:
(a) an amount equal to one month of the agreed Fees; or
(b) where you have committed to a minimum time period for particular Services per the Online Provisioning Form, an amount equal to 100% of the estimated fees payable by you for those Services for the remainder of the committed minimum time period (the “Early Termination Fees”).
15.3.2 You agree that Early Termination Fees are genuine pre-estimates of the loss we are likely to suffer as a result of the early termination of the Agreement per clause 15.1.
15.4 Termination or expiry obligations
Upon the expiry or termination of the Agreement for any reason:
(a) we will discontinue the delivery of the Services and remove all Customer Data connected with such Services from our Systems; and
(b) you must comply with clause 13.5 to the extent you have SMX Confidential Information in your possession or control.
15.5 Reservation of Rights
Expiry of this Agreement per clause 3 or earlier termination of this Agreement by a party under this clause 15 shall be without prejudice to a party’s rights arising from a breach of this Agreement or in negligence or other cause of action that arises prior to the expiry or termination date.
16. Force Majeure
A party may suspend its performance obligations under the Agreement (by email from an authorised Personnel) if it is unable to perform such obligations as a direct result of a Force Majeure Event. The suspension of performance is limited to the period during which the Force Majeure Event or its impact continues. If the period of suspension exceeds 60 calendar days or more the other party may immediately terminate this Agreement by giving notice in writing to the party that initiated the suspension.
17. Disputes
17.1 In the event of a dispute or misunderstanding arising over the interpretation of this Agreement or performance by a party (a “Dispute”), no party may commence any court proceedings hereunder relating to the Dispute unless that party has complied with the procedures set out in this clause 17 provided that where a party needs urgent interlocutory or injunctive relief it may apply to the courts for applicable interim measures or preliminary orders.
17.2 The party initiating the Dispute (“the first party”) must provide written notice of the Dispute to the other party (“the other party”) and nominate in that notice the first mentioned party’s representative for the initial discussions and negotiations (the “Dispute Notice”). The other party must within 7 calendar days of receipt of the notice give written notice to the first party, naming the other party’s representative for the discussions and the negotiations. Each representative nominated must have authority to settle or resolve the Dispute.
17.3 If the parties are unable to resolve the Dispute by discussion and negotiation per clause 17.3 within 14 calendar days of receipt of the Dispute Notice, then a party may by written notice to the other party refer the Dispute to mediation (being a non-binding dispute resolution process in which an independent mediator facilitates negotiation between the parties) and as stated:
i. where you are a contracting entity operating in New Zealand, to the Arbitrators’ and Mediators’ Institute of New Zealand (“AMINZ”) for resolution in accordance with its Mediation Protocol. The mediator and the mediator’s fee will be as agreed by the parties, or, failing agreement between the parties, the mediator will be selected, and his/her fee determined by AMINZ; or
ii. where you are a contracting entity operating in Australia, to the Australian Disputes Centre (“ADC”) according to its Guidelines for Commercial Mediation in accordance with its Mediation Protocol. The mediator and the mediator’s fee will be as agreed by the parties, or, failing agreement between the parties, the mediator will be selected, and his/her fee determined by the ADC.
17.4 A mediation shall be terminated by either:(I) the signing of a settlement agreement by the parties; or (II) a written notice to the parties by the mediator, after consultation with the parties, to the effect that further efforts at mediation are no longer justified; or (III) written notice by one or more of the parties to the mediator to the effect that further efforts at mediation are no longer justified; or (IV) the expiry of 30 Business Days from the mediator's appointment (unless the parties expressly consent in writing to an extension of this period).
17.5 Where no mediation is agreed to, or, if the mediation should be terminated as provided in Clause 17.4, a party may commence court proceedings.
17.6 To the extent practicable, the parties must in good faith continue to perform their respective obligations under this Agreement pending the resolution of a Dispute
18. General
18.1 Variations
18.1.1 Services scope and delivery
SMX may during the Term, in its discretion, make changes to the Agreement terms and conditions in relation to the scope and delivery of Services. If such changes are in our reasonable determination materially change or affect your rights and obligations, we will notify you in advance (not less than 7 calendar days) by email of the proposed changes. Where you continue to use the Services following such email notification, you acknowledge and agree to those changes that will then be deemed to have taken effect 14 calendar days after the email is delivered per clause 18.7.
18.1.2 Other Variations
Any other proposed variation to this Agreement will notified by us to you by email. The proposed variation shall be deemed agreed 14 calendar days after the date the email is delivered per clause 18.7 unless you notify us by email that you require to discuss and negotiate the proposed change.
18.2 Entire Agreement
This Agreement and its terms and conditions and the Online Provisioning Form constitute the complete and exclusive statement of the agreement between the parties and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to their subject matters.
18.3 Assignment, Sub-Licensing and Novation
You shall not assign or sublicence it rights and/or obligations under this Agreement nor novate this Agreement without SMX’s prior written consent.
18.4 Waiver
The failure of a party to exercise any right under this Agreement shall not be deemed to be a waiver of such right, and the failure of a party to exercise any other right in respect of the other party’s breach or default shall not be deemed to be a waiver of the right to do so for any subsequent breach or default or for the continuing breach or default of the other party. Any waiver is only effective if its specific terms are set out in writing and signed and delivered to the other party by the party waiving a right or obligation.
18.5 Severability
If any term of this Agreement or its application to any party or circumstance is or becomes illegal or invalid or unenforceable to any extent, the remainder of the terms and their application shall not be affected and remain enforceable to the extent permitted by law.
18.6 Survival
Termination or expiry of this Agreement will not affect any clauses of this Agreement which are clearly intended to survive termination and specifically clauses 6.3.3,8.4,11-15 and 17-18.
18.7 Notices
18.7.1 Any notice or other communication in connection with this Agreement must be:
(a) in writing;
(b) marked for the attention of the CEO or Managing Director (or any replacement person notified in writing by the relevant party); and
(c) either left at the address or sent by prepaid post or emailed to the principal place of business of the relevant party (or any replacement address notified by that party in writing). However, when a Dispute Notice or notice of breach or termination is given by email, a copy must also be delivered by hand or pre-paid post.
18.7.2 Notices or other communications are deemed received either:
(a) if delivered by hand, on delivery;
(b) if delivered by post:
(i) on the third day following posting if sent and received within New Zealand or Australia, as applicable; and
(ii) on the tenth day following posting to or from an overseas destination (outside New Zealand or Australia, as applicable); or
(c) if delivered by email, when the email is opened by the recipient or the next Business Day after the time at which it enters the recipient’s email system (provided that the sender does not receive a delivery failure or an out of office message)
- whichever is the earliest.
18.8 Relationship
This Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.
18.9 Governing Law
18.9.1 Where you a contracting entity operating in New Zealand, then this Agreement is governed by New Zealand laws, and, subject to clause 17, the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New Zealand.
18.9.2 Where you a contracting entity operating in Australia, this Agreement shall be governed by New South Wales law, and, subject to clause 17, the parties irrevocably and subject to the exclusive jurisdiction of the courts of New South Wales.