General Terms and Conditions

1. Introduction & Acceptance

1.1. These Terms and Conditions apply to any Services supplied to you.

1.2. Your acceptance of these Terms and Conditions will be deemed to occur on the earlier of:

1. your returning of a signed copy of these Terms and Conditions to us (either by post, DocuSign or email); and
2. you instructing us, whether orally or in writing, to commence, or proceed with the supply of, the Services.

1.3. These Terms and Conditions, any Services Agreement or accepted Proposal and any Statement of Work or Service Order make up the contract between you and us in relation to performance of the Services.

2. Definitions

2.1. In these Terms and Conditions:

“Client Responsibilities” has the meaning given to that term in clause 3.1(c);

“Good Industry Practice” means, in relation to a particular activity, the exercise of a degree of skill, care and diligence which would reasonably be expected from a skilled and experienced person engaged in New Zealand in the same activity, under the same or similar circumstances.

“Independent Expert” means an independent expert appointed in accordance with clause 13.2(a);

“Proposal” means the formal offer made by us to you detailing the specific Services to be provided, the scope of work, the Rates, and any other relevant terms and conditions, which upon acceptance by you, forms part of the Services Agreement.

“Rates” means the hourly charge out rates in respect of our personnel set out in the applicable SOW as reviewed from time to time in accordance with clause 4.3;

“Services” means any Services ordered by you from, and supplied by, us as set out in either the Services Agreement, any SOW or as otherwise agreement in writing and includes any deliverables or other materials we provide as part of the Services;

“Services Agreement” means any service description and/or the service level agreement entered into between you and us (if any);

“Proposal” or “SOW” or “SO” has the meaning given to that term in clause 3.1;

“we”, “us” or “our” means LinearStack NZ Limited (New Zealand company number 4339578); and

“you” or “your” shall mean the purchaser of any services from us.

2.2. In the event of inconsistency or conflict between these Terms and Conditions, the Services Agreement and an SOW, the inconsistency or conflict will be resolved in accordance with the following order of precedence:

• SOW or SO;
• the Proposal;
• the Services Agreement; and
• these Terms and Conditions

3. Proposal or Statement of Work or Service Order

3.1. You may request the provision of Services from us to you, or any amendment to Services we are already providing, at any time. Subject to any request from us for further information and provided the Services can be reasonably implemented, we will prepare and provide you with a Proposal or a statement of work (“SOW”) or service order (“SO”) for performance of any such Services. Each Proposal or SOW or SO will set out:

• the Services to be performed and the estimated timeframes for performance of such Services;
• any deliverables or other materials to be provided during the provision of such Services;
• any requirements or other responsibilities that you must comply with to enable us to deliver the Services (“Client Responsibilities”); and
• our estimate of our charges and other costs for performance of the Services payable by you (such charges to be calculated using the Rates).

In the event that preparation of a Proposal or SOW or SO will incur material time and resource, we may charge you for the preparation of such Proposal or SOW or SO. We will endeavour to discuss with you and agree on the charges for such preparation prior to commencement of any such Proposal or SOW or SO.

3.2. Unless withdrawn in writing by us any Proposal or SOW or SO we provide to you is available for acceptance for 14 days (or any longer period stated in the Proposal or SOW or SO) from the date of provision of the Proposal or SOW or SO. Your acceptance of any Proposal or SOW or SO should be confirmed in writing prior to supply, but in the absence of written acceptance, your order and our resulting supply of the Services will be taken as your acceptance by conduct.

3.3. An order or letter of acceptance that contains terms or conditions in conflict with or seek to amend any Proposal or SOW or SO or these Terms and Conditions will not be binding on us.

4. Charges & Review of Rates

4.1. The estimate of our charges in any Proposal or SOW or SO are prepared having regard to the information available to us, and are based on the Rates, at the date the estimate is provided. Unless expressly stated as a fixed fee, our charges are estimates only and may increase as a result of a range of factors such as changing requirements for the Services, project timetable delays caused by a failure to comply with the Client Responsibilities and any unforeseen impediments or other issues related to delivery of the Services. We will endeavour to keep you informed on a timely basis in the event we believe our estimate requires revising and will discuss this with you.

4.2. Any work that we perform that is outside the scope of any Proposal or SOW or SO, or performed on an ad hoc basis at your request, will be charged based on our Rates.

4.3. We may increase the Rates from time to time provided that we will not do so more than once in any 12-month period. We will notify you of any change to the Rates by notice in writing with such amended Rates coming into effect following the first full calendar month after the month in which the notice was served on you. By way of example, if a notice amending the Rates was served on 15 January, the new Rates would come into effect on and from 1 March.

5. Payment Terms

5.1. Invoices raised by us in relation to any matter covered by these Terms and Conditions must be paid in full on or before the 20th day of the month following invoicing.

5.2. Interest will be charged at 2% per month or part thereof on any unpaid amounts owed to us by you that are outstanding calculated from the due date of payment until the date of full payment.

6. Services Agreement, Timeframes and Customer Responsibilities

6.1. In the event that a Services Agreement has been entered into, we will use our reasonable endeavours to deliver the Services in accordance with such Services Agreement.

6.2. We will endeavour to deliver the Services in accordance with any timeframes or project plans set out in the applicable SOW. However, you acknowledge that any such timeframes or plans are estimates only and we will not be liable for any loss (of any kind) you may suffer as a result of any delay in the provision of the Services or failure to adhere to estimated timeframes or plans.

6.3. You agree to comply with, provide or deliver (as appropriate) any Client Responsibilities.

6.4. Notwithstanding any other provision of these Terms and Conditions, if we have failed to deliver the Services in accordance with these Terms and Conditions and the applicable Proposal or SOW or SO (each instance a "Non-Performance"), and can demonstrate that the Non-Performance would not have occurred but for your (including your personnel’s) acts and/or omissions ("Client Cause"), we shall not be treated as being in breach of any applicable obligation to the extent we can demonstrate that the Non-Performance was caused by the Client Cause.

6.5. You acknowledge that certain third party software may form part of the service offering comprising the Services (“Third Party Software”). You agree to comply with any terms and conditions imposed on us by the owner of the Third Party Software and further not do or omit to do anything that will cause us to be in breach of such terms and conditions.

7. Other Obligations

7.1. In providing the Services, we agree:

• to do so in accordance with Good Industry Practice; and
• to comply with all applicable laws and regulations.

7.2. You agree that in complying with your obligations, and receiving the benefit of the Services, under these Terms and Conditions you will comply with all applicable laws and regulations including those in relation to the collection, storage and use of personal information under the Privacy Act 1993.

7.3. You acknowledge that delivery of the Services is undertaken by our personnel and contractors based in New Zealand, Australia, India, Philippines, India and the United States of America.

8. Termination of Services

8.1. You may terminate any ongoing services ordered by providing us with at least 90 days’ notice in writing before the end of the term. This right of termination does not apply to project-based work, and any hardware and software procurement.

8.2. Upon termination of any Services, we will be entitled to invoice you for any work performed up to the date of termination.

8.3. Unless either party provides notice of its intention not to renew the Services at least 3 months prior to the end of the current term, the Services will automatically renew for a successive term equal in length to the initial term under the same terms and conditions outlined in this Agreement. This automatic renewal will continue on a term-by-term basis until either party provides timely notice of non-renewal or termination as specified in sections 8.1 and 8.3.

8.4. Notification of non-renewal or termination must be provided in writing and will be effective upon receipt by the other party. Any obligations incurred by either party prior to the termination date shall survive the termination or expiration of this Agreement for the purpose of their completion or resolution.

9. Warranties, Limitation of Liability & Indemnity

9.1. You acknowledge that all Services are provided "as is" and, with the exception of any express warranties and representations set out in these Terms and Conditions and any warranties or conditions which may not lawfully be excluded, all warranties and representations are disclaimed or otherwise excluded (including implied warranties such as fitness for a particular purpose).

9.2. To the extent permitted by law, neither party will be liable to the other party or any third party (whether for breach of contract, tort, for breach of statute or on any other basis) for any:

• indirect, consequential or special loss, damage or injury; or
• loss of profits, revenue, business opportunity, anticipated savings, wasted overheads or damage to goodwill, regardless of whether in the circumstances it is deemed direct, indirect, consequential or special losses.

9.3. Subject to clause 9.2, our maximum liability in contract, tort, equity, statute, regulation or otherwise for any loss, damage or injury directly or indirectly out of or in connection with these Terms and Conditions in any 12-month period shall in no event exceed the sums actually paid by you to us during such 12-month period.

9.4. You agree to indemnify and hold LINEARSTACK (including our officers, directors, agents, and employees) harmless from any claim our demand, including reasonable legal fees, arising out of or related to the provision of any advice under this engagement.

9.5. LINEARSTACK confirms it carries the following insurance:

• Errors and Omissions
• General Liability

10. Intellectual Property

10.1. You acknowledge that, unless agreed otherwise in writing:

• all intellectual property rights subsisting in the Services and any deliverables or other materials we provide you in the course of delivering the Services (excluding anything provided to us by you); and
• all modifications, improvements and additions to that intellectual property (whether developed by you or us), are, and will remain at all times, our exclusive property and/or that of our licensors (as applicable). You agree that you will not at any time challenge or contest, whether directly or indirectly, such exclusive ownership. For the avoidance of doubt, we will retain the intellectual property rights subsisting in any templates, documentation or other material developed by us.

10.2. You warrant that anything given (including any instructions) by you to us in relation to the Services shall not infringe, or cause us to infringe, the intellectual property rights of any third party.

11. Non-Solicitation of Personnel

11.1. Both parties agree that while this Agreement is in effect and for a period of twelve (12) months following the expiration or termination of this Agreement neither party will offer to employ or contract with, or otherwise solicit or induce to leave, any employees or other personnel of the other except:

12. Force Majeure

12.1. We will not be liable for failure to perform or complete any of our obligations to you due to any causes beyond our reasonable control including, without limitation, changes in law, government direction, strike, lockout, labour disputes, fire, earthquake, flood, typhoon, tidal wave, landslide, lightning, explosion, Act of God, war, riot or civil commotion.

13. Dispute Resolution

13.1. In the event of a suspected breach of a party’s obligations under these Terms and Conditions, the Services Agreement or a SOW, the parties will use all reasonable endeavours to determine whether a breach has occurred by reference to ticketing systems, emails, phone calls, SMS, chat and portal audit trails for a period of 14 days or such other period as is agreed by the parties in writing.

13.2. If the parties are in dispute as to whether a party has breached their obligations under these Terms and Conditions, the Services Agreement or a SOW following the completion of the process set out in clause 13.1, then an Independent Expert will be appointed to resolve the dispute on the following terms:

• The Independent Expert will be appointed by the parties or, failing agreement within 7 days, an independent body
  agreed by the parties.
• The decision of the Independent Expert will be final and binding on the parties.
• The parties will be equally responsible for the costs of the Independent Expert unless the Independent Expert
  determines otherwise.

14. Amendment of Terms and Conditions

14.1. We may amend or modify these Terms and Conditions at any time.

14.2. Any change or variation to these Terms and Conditions shall be notified to you the next time you order any Services and shall become effective on the date so notified.

15. General

15.1. If any provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of these Terms and Conditions will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

15.2. These Terms and Conditions shall be governed by and construed in accordance with the laws of New Zealand. You irrevocably and unconditionally submit to the exclusive jurisdiction of the New Zealand courts in connection with these Terms and Conditions