Terms and conditions

The Information Management Group (NZ) Limited “TIMG” Standard Terms and Conditions

GENERAL TERMS AND CONDITIONS

DEFINITIONS

Definitions: In this Agreement, unless the contrary intention appears or context otherwise requires:

“Affiliate” means a related or associated entity or person of a party relevant to or involved in the matters under this Agreement. Without limitation, a Client Affiliate includes any network or group that the Client is part of or can purchase or order goods and services on behalf of, such as a franchise network, industry group or association, co-operative, syndicated or joint buying group; and TIMG Affiliate means all companies in the Freightways Group.

“Agreement” means this Agreement comprising Part A: Agreement and Key Details, Part B: Schedule: The Services; Part C: these General Terms and Conditions; Part D: Attachments including SOW (if any), together with any future SOWs and valid variations agreed between the parties during the Term.

“Bins” means TIMG bins or other receptacles used for the Services for example for secure collection, disposal and transport of the Customers Records.

“Charges” means the fees and charges for supply of the Services; purchase price, rental charges, licence fees for Consumables, Equipment and Technology purchased, leased or used under this Agreement and any other all fees, costs, disbursements, reimbursements and other amounts payable by the Client under this Agreement.

“Commencement Date” means the date from which the Services will be provided as specified in Part B.

“Confidential Information” means confidential, secret, commercially or security sensitive, information, details or knowledge in any format belonging to or about a party, its business, operations, financial results and affairs; and about or connected with the matters under this Agreement; that is not readily available to the public or that would not be known to the recipient of the information but for this Agreement, whether or not it is marked confidential or specifically disclosed in confidentiality including relating to or about:

A party’s operational procedures and systems, know-how, sales and bidding strategies, cost and pricing structures.

(b) The terms of this Agreement and any SOW including details of the Services and the Charges;

(d) The existence and outcome of any dispute or claim between the parties (other than as publicly reported);

(e) Any other information that by its nature it should be known to be confidential or not to be further disclosed or used by the recipient party.

“Consumables” means any goods, items or product sold, to the Client by TIMG or its Affiliate for the purposes of this Agreement such packaging materials, archive boxes, files.

“Customer” means the Client named in this Agreement; and includes where appropriate or context requires its Workers, authorised representatives, approved transferees, and Affiliates.

“Early Exit Fee” means the amount payable by the Client for terminating this Agreement without the required notice, or if this Agreement is terminated by TIMG for Client breach, as described in clause 3.

“End Date” means the date this Agreement ends for any reason including expiry on the End Date specified in Part A (if any) or termination by a party on notice as provided for in this Agreement; or termination for breach or any other reason as provided for in this Agreement or at law.

“Equipment and Technology” means any equipment, device, or machinery including computer and communications hardware; Storage Media; or technology that is required to be owned, leased or used by the Client and/or located at the Premises for the purposes of this Agreement.

“Flexible Fuel Factor” means the variable charge calculated based on a standard MBIE formula and invoiced monthly by TIMG to reflect changes in the cost of fuel used for the provision of services to the Customer.

“Renewal Period” means an additional or extended period/s of the Term following the Initial Period.

“GST” means goods and services tax chargeable, or to which a person may be liable, under the Goods and Services Tax Act 1985, or any replacement thereof.

“Initial Period’ means the initial period of the Term as specified in Part A.

“Insolvency Event” means and includes any of: committing an act of bankruptcy or being bankrupted; being deemed or declared insolvent; have judgement entered which is not satisfied within 28 days; an entity is wound up or becomes externally administered or has a liquidator or receiver appointed by any person; entering into a deed of arrangement or composition with its creditors without consent of the other party; a secured party or creditor enforces any rights it has against any property of the party; or in any other event that a party cannot prove solvency to the other party’s satisfaction on demand;

“Intellectual Property” means intellectual property and proprietary rights including trademarks, confidential information, copyright materials and content, designs, patents, software, code, programs, databases, knowhow, business, operations and technical data processes and systems; client base, complications, and includes all improvements to Intellectual Property by the owner or any other person.

“Ordinary Hours of Work” means the hours specified in Part A,

“Personal Information” means any information about an individual person or persons covered by the provisions of the Privacy Act 2020 or other applicable law or code in the Jurisdiction.

“Premises” means all or any Client or Client Affiliate premises and any part of them related to the Services including offices, warehouses, storage facilities, yards, carparks, loading docks, driveways, accessways;

“Records” means all Client physical or electronic or digital records, data and information that are the subject of the Services under this Agreement, including those created or converted by TIMG for the purpose of the Services, in any format; and including all integrated or associated Storage Media or devices and all archive boxes, packaging, documents, files or folders accompanying or containing the Records as context requires.

“Services” means the Services supplied to the Client by TIMG during the Term as provided for in this Agreement.

“Software” means TIMG proprietary or third party software, apps or programs or system used by either party in connection with the Services and includes any web based application or portal or API used or accessible to the Client for the Services

“Special Conditions” means any special conditions that supplement or vary these General Terms agreed by the parties as set out in Part A or in a SOW.

“Statement of Work or SOW” means the Statement of Work in Part B or annexed to this Agreement, if any; and any future Statements of Work signed and dated by both parties for any new, different or materially varied Services agreed to be supplied during the Term of this Agreement, specifying the scope, pricing and other details of the Services, and that once signed becomes part of and governed by this Agreement.

“Storage Media” means the devices or technology on which a Customer’s digital data Records are stored such as tapes, discs, drives, USBs or similar.

“TIMG” means The Information Management Group (NZ) Limited, and includes where appropriate or context requires its officers, Workers, authorised representatives, transferees, successors, and Affiliates.

“TIMG Property” means all Equipment and Technology and other goods supplied to or used by the Client for the purpose of this Agreement owned by TIMG and where title does not pass to the Client and/or that TIMG has a security interest in.

“Term” means the Term of this Agreement commencing on the Commencement Date, comprising the Initial Period and Renewal Period/s if applicable.

“Transition Period” means the period commencing immediately after the End Date during which Customer’s Records are removed from TIMGs possession or control and the parties’ other post termination obligations are carried out.

“Vehicle” means any Vehicle used by TIMG or its Workers in the supply of the Services.

“Worker” means any officer, employee, contractor, subcontractor, or other person employed or engaged or authorised to work for or carry out services for the business of a party or represent a party including any volunteer or unpaid worker; in any way associated with the matters under this Agreement.

“Work Order” means a Client order for the Services or to purchase Consumables made from time to time during the Term.

THE SERVICES

TIMG warrants that it has the expertise, experience, resources, and ability to, and will exercise reasonable endeavours to perform the Services efficiently, diligently in accordance with the terms of this Agreement.

In consideration of the Charges, TIMG shall provide the Services to the Customer, (including any Affiliates named in Part A) throughout the Term during the Ordinary Hours of Work with reasonable care, diligence, and skill in accordance with good industry practice and standards, and statutory obligations, the value of the Charges and nature of the Services.

Access to Premises

The Client authorises TIMG, its Workers and Vehicles and necessary equipment to access and enter the Premises during the Term for the purposes of the Services at the agreed or otherwise reasonable times and days as necessary to supply the Services.

The Client must ensure entry is readily available to the Premises and all applicable parts thereof with unimpeded, suitable access and space for the Services to be carried out in a safe and efficient manner by TIMGs Workers, including room for Vehicles to enter, manoeuvre, and exit; and for Bins, Records, palleted freight and other items being delivered or collected to be easily located, uplifted or deposited in well defined, clearly accessible spaces suitable for the Vehicle and any equipment used by TIMG.

If suitable access is not available the carrier may deliver the Records to a reasonably suitable alternative location at the Premises to be notified to the Client at the time of delivery; or may depart the Premises without delivering the Records, and the Client shall pay the Charges for all attempted deliveries and / or any waiting time.

The Client shall supply keys and access cards or codes where necessary for TIMG Worker and Vehicle entry to the Premises. TIMG shall take reasonable steps to keep keys, access cards and codes confidential, safe and secure and only available or accessible to authorised persons. The Client must notify TIMG as soon as practicable if any changes are made to the access ways or entries, and/or locks or codes and supply replacement keys or cards to TIMG at the Customer’s cost. TIMG must notify the Client as soon as practicable if any keys, cards or codes cease to work, are faulty or are lost or stolen.

Work Orders and Statements of Work

Statements of Work:

A new SOW or other signed variation must be completed for additional, new, or materially varied Services outside the scope detailed in this Agreement agreed between the parties.

Varied, new or additional Services shall be subject to the General Terms and Conditions and then current Charges in place at the date of variation or addition t unless otherwise agreed.

The Term of any SOW shall not extend beyond the End Date of this Agreement.

Work Orders:

TIMG will supply the Services and any goods at the times, volumes and/or frequencies; as specified in this Agreement. If the Client wishes to order additional, unscheduled or different Services or goods, they must do so by making a valid Work Order.

When logging, making or updating a Work Order, the Client must follow TIMGs processes and requirements and accurately and promptly provide TIMG with all information and details necessary to accept the Work Order and deliver the Service or goods, including providing a Client purchase order number for every new Work Order, if required under Part .A

If the Charges are not fixed in this Agreement, the Services and goods requested by Work Order shall be charged in accordance the then current TIMG, or if applicable third party supplier, price list.

TIMG may charge the full amount for the Services under any Work Order that is cancelled if the Client does request cancellation within the cancellation notice periods required under TIMGs processes, as notified to the Client by TIMG.

TIMG does not warrant that it will have the capacity or ability to supply all Services as requested by Work Order and will notify the Client reasonably promptly if a Work Order cannot be accepted.

Suspension of Services

TIMG may suspend, postpone or delay all or any of the Services at any time during the Term by giving as much notice as reasonable in the circumstances:

For a planned outage, or unavailability of the Services for operational and/or maintenance reasons;

Due to a Force Majeure event, or other unplanned or unforeseeable reasons;

If the Client is overdue with any payment due under this Agreement by more than 21 days whether or not a Breach Notice has been issued;

If the Client has not complied with any Breach Notice by the due date;

Pending termination date if a notice of termination has been served by a party on the other party;

If it is not in TIMGs opinion practicable or reasonable for the Services to continue due to a material Dispute or claim between the parties.

TIMG will resume all or part of the Services as soon as reasonably practicable after the event or circumstance giving rise to the suspension has ended (unless a party lawfully terminates this Agreement during the period of suspension).

Any fixed or minimum Charges under this Agreement shall continue to accrue and be payable by the Client during the period of suspension if the Services have been suspended due to Client breach or overdue payment.

TIMG is not liable to the Client for any loss, cost or other consequence to the Client for a suspension of Services under this clause.

Client Affiliates

Where the Services will be supplied directly by TIMG to, or for the benefit of, Client Affiliates (in addition to or instead of the named Customer) and/or at Premises owned, or occupied or controlled by Client Affiliates, TIMG will provide the Services on the terms and conditions of this Agreement to those Affiliates named or described in Part A or later notified in writing by the Customer, under the terms and conditions of this Agreement as if they were the named Client and all reference to Client is deemed to include those Affiliates.

The Client will ensure its Affiliates are aware of and comply with all Client obligations, processes and requirements under this Agreement.

All Affiliates named by the Client that order and receive the Services are deemed to be authorised by the Client to do so, and TIMG is entitled to rely on any Work Order, request, representation, or communication of an Affiliate as having been made by the Customer.

The Client shall pay all Charges incurred by Affiliates unless TIMG specifically agrees to invoice Affiliates individually, in which case the Client fully indemnifies TIMG for any non-payment of Charges by Affiliates and any costs incurred in collecting or enforcing payment. Any other breach of Client obligations by an Affiliate ordering and receiving the Services or any other act or omission under this Agreement shall be deemed a Client breach.

TIMG Workers

TIMG shall take all reasonable steps to ensure that all Workers assigned or engaged to provide the Services in any capacity or that have any access to Client Records, are suitably trained, experienced, qualified, have passed appropriate Ministry of Justice and other checks, and if applicable to their role, hold a current Certificate of Approval under the Private Security Personnel and Private Investigators Act 2010; and that they are aware of their lawful obligations and any requirements under this Agreement and are reasonably supervised while carrying out their duties under this Agreement.

The Client acknowledges and agrees that TIMG Workers providing the Services or parts thereof may include independent contractors, sub-contractors, and third party suppliers or other TIMG Affiliates, engaged by TIMG to assist and enable TIMG to supply the full scope of Services to the Customers to the required standards in a timely manner. TIMG is not obliged to notify the Client of the use of such Workers. TIMG retains responsibility to the Client for its obligations under this Agreement unless the contractors or suppliers enter into a direct contract of supply or services with the Customer.

In recognition of the costs of recruitment, training, licensing and retention of Workers to TIMG and their knowledge of TIMG Confidential Information, the Client agrees not to solicit or engage any TIMG Worker involved with providing the Service or otherwise becomes known to the Client in connection with this Agreement; to work for or supply the same Services or any part of them to the Client or their Affiliate during the Term or for a period of six months after the End Date if the Worker remains employed or engaged by TIMG or would likely remain so, but for the Client solicitation or employment. The Client agrees that this restriction is reasonably and necessary to protect TIMGs proprietary rights.

All TIMG Workers shall be required to carry photo identification issued by TIMG (or by their employer or principal where not direct employees or contractors of TIMG) and /or their current Certificate of Approval. All Vehicles used in the Services shall be reasonably identified as belonging to or operated by TIMG or its Worker or Affiliate (unless a temporary Vehicle is used on a short term basis).

TIMG shall have no liability to the Client or any other person for any act or omission of any Worker that occurs without TIMG actual or deemed authorisation, or that is outside the scope of the Worker’s authority, rights and duties, or that could not have been reasonably foreseen and prevented by TIMG whether or not it occurs in the course of supplying the Services or any part of them.

Every right, exemption or limitation from liability and defence to which TIMG is entitled in accordance with this Agreement shall also be available and shall extend to protect all TIMG Workers.

Workplace Health and Safety

Each party undertakes to the other to meet their duties and obligations in connection with the Services, the Premises, Vehicles and any other matter in connection with this Agreement as a person conducting a business undertaking (“PCBU”) in accordance with the Health and Safety at Work Act 2015.

Without limitation, it is the Customer’s responsibility to ensure that the health and safety of TIMG Workers is not at risk at any Premises; and the Client must take all reasonable steps to be aware of, and notify TIMG in writing of any hazards or risks of any nature on or around any Premises or in relation to the Services.

TIMG shall take reasonable steps to ensure its Workers are aware of any comply with any Client health and safety policy, procedures or risk management steps notified to TIMG by the Client provided that they are consistent with TIMG’s own health and safety policies and Worker requirements and obligations to TIMG.

TERM OF AGREEMENT

Unless this Agreement is earlier terminated pursuant to clause 8; the Term and supply of Services commence on the Commencement Date and continue for the Initial Period.

This Agreement and any current additional SOWs shall automatically be extended for a Renewal Period following expiry of their Initial Period, unless:

An End Date is specified in Part A / the applicable SOW; or

Either party has given written notice to the other at least 30 days prior to expiry date of the Initial Period, stating that they wish this Agreement or the applicable SOW, to terminate on expiry of the Initial Period.

Following extension pursuant to subclause 3.2 this Agreement / the applicable SOW shall continue for a Renewal Period and then for additional Renewal Periods, unless either party elects to terminate this Agreement the applicable SOW at any time during any Renewal Period on [90?] day’s written notice.

If the Client terminates this Agreement or an SOW at any time during the Term without the required notice, or this Agreement is terminated for Client breach, the Client must pay an Early Exit Fee which shall be a sum equivalent to the fixed or minimum Charges, or reasonably anticipated Charges that would have been payable by the Client to TIMG:

If terminated during the Initial Period the Early Exit Fee shall be for the unexpired portion of the Initial Period as at the date of termination;

If terminated during a Further Term, the Early Exit Fee shall be for the full required notice period, less the period of notice given (if any).

For clarity, the Initial Period and Renewal Period specified in this Agreement apply to the agreed, proposed Services as at the date of this Agreement, and each subsequent SOW may specify its own, different Initial Period and Renewal Period; however no SOW may continue after the End Date of this Agreement, and if an End Date is specified in Part A, the Initial Period and Renewal Period/s of the SOW must have a final expiry date that is no later than that End Date.

CHARGES AND PAYMENT

The Client shall pay all Charges under this Agreement in cleared funds by bank transfer to TIMGs nominated bank account; without set off or deduction, time being of the essence.

The Client shall also pay all amounts due to any TIMG Affiliate or third party supplier involved in supplying any part of the Services, or associated Consumables, Equipment Technology and Software, whether invoiced directly to the Client by that person, or included in a TIMG invoice, (for example but not limited to freight costs and third party software licence fees) on the due dates.

GST is payable by the Client on all Charges, unless the Charges are specified as GST inclusive.

TIMG invoices on a 4 week, 4 week, 5 week billing cycle and will submit GST invoices to the Client for any Services provided in a billing cycle, following the conclusion of each billing cycle. Payment is due by the 20th of the month after each the end of each billing cycle.

Subject to sub-clauses 4.6 and 4.7, the Charges invoiced each billing cycle shall be for the actual value of Services carried out in that period, which may be higher or lower than any fixed or regular amount specified in Part A, if for example:

TIMG provides additional or extra Services pursuant to a Client Work Order or other request;

TIMG incurs extra costs or additional work is necessary to provide the Services because they are outside the usual or quoted scope at Client request, or the Client has not followed the correct processes, or caused delays or extra costs to TIMG or its Workers;

TIMG was not able to supply all scheduled or ordered Services during invoice period during a period of suspension or other reason that was no fault of the Customer.

If any fixed or minimum Services are specified in Part A; but a lower volume or value of Services are supplied due to Client request, breach, or failure to follow TIMG processes and requirements notified to the Customer, TIMG may invoice and the Client must pay the full fixed or minimum Charges for the applicable billing cycle.

If the full amount and value of Services for a billing cycle is not known or finalised by TIMG at the time of issuing the invoice, TIMG may invoice the known or estimated Charges for that period, and TIMG shall in the next practicable invoice charge for those Services supplied but not charged in the previous period; or, as the case may be, credit or refund the Client for any overcharge for the prior period.

Any invoice query or dispute must be notified to TIMG prior to the payment due date, and TIMG will attempt to resolve the query before the date payable. If not resolved by the due date, the Client must pay the full invoice amount and TIMG shall provide any proven or agreed credit or refund due to the Client in the next practical invoice period.

Overdue Payments: If any Charges or amounts due to TIMGs or its Affiliates in connection with this Agreement are not paid in full on the due dates; then without limiting any other rights TIMG (or the Affiliate) may have:

The Client must pay on demand default interest at a rate equal to 3% above the then current overdraft unsecured rate of TIMGs principal bankers, calculated on a daily basis on the amount unpaid from the due date until the date paid; and all costs and expenses (including costs on a solicitor/client basis and debt collectors’ or other enforcement or recovery costs) incurred by TIMG or the Affiliate in collecting any overdue payments or judgement amount.

TIMG may terminate this Agreement pursuant to clause 8 or suspend the further supply of all or any Services until all amounts due and any applicable default interest and costs are paid in full (and this option shall apply if any amounts due to a TIMG Affiliate or nominated supplier or licensor, are overdue).

TIMG may require payment of an advance deposit and / or authorised direct debit or credit card authority may be required as a condition of continuing supply to the Customer.

Annual Review and Other Variation of Charges: If this Agreement is for a Term of greater than one year, the Charges shall be reviewed and may be increased by TIMG on or around each annual anniversary of this Agreement on 30 days’ written notice to the Customer, and the varied rate may be backdated to the anniversary date. Any increase shall be at TIMGs discretion but for the Customer’s information only, reasons for increase may include or be based on all or any of the following:

any percentage increase in the Labour Cost Index (Salary and Wage Rates) or the Consumer Prices Index (CPI) as published by Statistics New Zealand (or any replacement index) over the preceding 12-month period; and/or

TIMGs own increasing costs of business including but not limited to Worker and supplier costs, updated or new legislative, regulatory, compliance requirements, capital costs, due to take effect in the forthcoming period.

Increase on Notice: TIMG may in addition to the Annual Review, at any time on 30 days’ notice increase the Charges to cover costs, expenses and charges directly related to supply of the Services such as increases by 3rd party suppliers, Affiliate suppliers, software licensors; or legislative or compliance costs increases related to supply of the Services under this Agreement where the cost to TIMG (or directly to the Client as the case may be) has or will be increased by that supplier at any time under their own terms of supply; or the increase in costs to TIMG to supply were not reasonably known or foreseen by TIMG at the time of this Agreement or the previous annual review.

Fuel: TIMG may charge a Flexible Fuel Factor surcharge or transport charge or levy which may be or introduced or varied at any time by TIMG on 14 days’ notice.

EQUIPMENT, TECHNOLOGY AND SOFTWARE AND CONSUMABLES (“Goods”)

The Client agrees to own, acquire, lease or subscribe to, and use all Goods specified in this Agreement or notified by TIMG from time to time during the Term, as necessary for the purposes of this Agreement; and TIMG agrees to sell, supply or co-ordinate or assist with supply of the Goods

The Client must follow all TIMG, third party supplier and licensor directions and instructions for the proper installation, use, care, maintenance, repairs, upgrades and other specifications for all such Goods.

Unless TIMG is supplying the same as part of the Services under this Agreement, the Client must take all necessary steps at its own cost to ensure its own systems and technology integrate and/or communicate with the necessary Equipment and Technology and Software to TIMGs specifications.

Goods supplied to the Client by third party suppliers and licensors shall be pursuant to that supplier’s own terms of sale, lease or licence and the Client agrees to comply with the same, including if required directly entering into purchase, lease, licences, subscriptions or user agreements with the licensor or supplier, and paying all related purchase prices, fees charges on the due dates.

Any supply to the Client by TIMG of Goods by way of lease, license or loan is on the following terms:

Possession and/or use is limited to the purpose of the Services, and the Client must not use the Goods for any purpose other than the Services, during the Term;

The Client must not sell, sub-lease, grant any security in, or part with possession of any such goods, or permit any other person to use of or have access to any of them for any other purpose; and must not remove, or cover any serial numbers or identifying marks of ownership, and must ensure the Goods are readily identifiable as owned by TIMG.

Rights of use and/or possession shall cease without further notice on the End Date;

The Client must:

not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change any Equipment, Technology or Software, or attempt to do so;

pay all related lease or licence Charges to TIMG and any third party licensors,

have suitable antivirus, malware and other measures in place to prevent, hacking, installation of ransomware or viruses or other interference or unauthorised access to the Equipment and Technology or Software;

keep all encryption keys, passwords or codes provided by TIMG or otherwise necessary for the Services, secure and confidential;

ensure that only its authorised and duly users are able to view or use, copy or disclose any part of the Equipment and Technology or Software; and TIMG is entitled to assume that anyone who accesses the Customer’s account or service using the Customer’s passwords is authorised by the Client to do so;

The Client is responsible for the proper use, care, security and prevention of loss or damage to the Goods, and indemnifies TIMG (or its insurers as the case may be) for any liability, damage or loss from any cause while in the use or possession of the Customer.

Return of TIMG Property: The Client shall at its own cost promptly return all Goods owned by or subject to security by TIMG; or co-operatively provide access to its Premises or other relevant location for TIMG or its agent to uplift and remove the Goods:

Following termination of this Agreement for any reason; or

At the end of any specific lease, loan, or licence if earlier, or

As provided for pursuant to a PPSR security to TIMG; or

At any other time as reasonably requested or demanded by TIMG, for example but not limited to if maintenance or upgrades are required, or the Services are suspended, or pending termination of this Agreement, or TIMG has cause to suspect the Client is not following requirements or the goods are at risk of loss or damage.

Should TIMG exercise its rights to uplift, collect or seize any property pursuant to clause 5.6, or under a PPSR securities or any other legal right, TIMG and its agents shall have no liability for any damage or loss to the property of the Client or any other person or any other loss, cost or liability suffered by the Customer, in relation to attempted or actual seizure acting reasonably and the Client shall indemnify TIMG for any loss or damage to TIMG Property caused due to the Client wrongfully preventing or attempting to prevent uplift and removal of the Goods.

Limited TIMG Warranty.

TIMG does not warrant to the Client or any user that any Equipment and Technology and Software sold or otherwise supplied by TIMG:

Is or will be free of any errors, bugs, malware, virus or similar, or

That it will run properly in all circumstances; or

That there will be no delays, interruptions, unauthorised access, or failures of service or functionality, (“faults or failure”), or

That all faults or failures can be corrected.

The Client must inspect or test all Goods sold or otherwise supplied by TIMG following delivery, access and/or installation, and report any loss or damage, fault, error or failure to TIMG within xx working days of delivery or when any such damage or fault becomes known to the Client at any time during the Term.

Notwithstanding TIMGs limited warranty and liability for Goods supplied, TIMG shall take reasonable steps to maintain, upgrade and keep current all Equipment, Technology and Software supplied by TIMG in TIMGs possession or control during the Term. If any Records are lost, damaged or impaired due to any fault or failure of Goods supplied by TIMG, TIMG shall take reasonable steps to attempt recovery or reinstatement of the Records, however TIMG shall not be liable for or required to indemnify the Client or any third party for any loss to the Records or related damages, cost, expenses incurred or suffered by them; caused or contributed to by any such fault or failure.

TITLE AND RISK

Ownership and title in Goods and deliverables, sold to the Client by TIMG under or in connection with this Agreement, does not pass to the Client until the purchase price has been paid in full to TIMG.

Ownership and title of Goods owned by TIMG that are leased, licensed or otherwise supplied to the Client for use in connection with this Agreement remains with TIMG at all times;

Personal Property Securities Act 1999 (“PPSA”): The Client hereby grants to TIMG a purchase money security interest on the terms and conditions as set out in the then current ADLS PPSA Security Agreement and related All Obligations Mortgage form in all purchased goods until the purchase price has been paid in full; and in all TIMG Property leased or loaned or otherwise in the Customer’s possession or control for a period of 12 months or longer, for the period of lease, loan or possession.

Risk in Goods sold to the Client passes to the Client from the time of dispatch to the Client by TIMG (or its supplier) including for any loss or damage during carriage. If purchased goods have not been paid for in full prior to dispatch the Client must insure the goods for their full indemnity value plus costs during the period of the security.

CUSTOMER’S ACKNOWLEDGMENTS

By signing this Agreement and/or proceeding with the Services after being provided with or referred to a copy of this Agreement and in particular these General Terms and Conditions by TIMG; the Client accepts the terms of the Agreement and acknowledges it has had an opportunity to read and understand the same, and/or discuss or seek clarification from TIMG of the obligations and rights of the parties, before signing.

The Client warrants that it is the owner of the Records, or the authorised agent, trustee or other representative of the owner of the Records and has authority to enter into this Agreement.

The Client acknowledges that if it has entered into this Agreement as an agent, trustee or representative of any other person, the Client shall be deemed to be the owner for the purpose of this Agreement, and the Client indemnifies and holds TIMG harmless for any claim, action, liability, costs or damages related to any breach or charge or claim related to the Record owners acts, obligations and liabilities pursuant to this Agreement or any external law or obligation.

The Client accepts it is responsible for undertaking its own due diligence before entering this Agreement, and solely relies on its own judgement for ensuring:

The Services comply with any statutory or government or other third party or external obligations applicable to the Client or the Records, for example the processes and periods for preservation, encryption or maintenance of the Records; and

The Client is satisfied that TIMG as a supplier, and the scope and nature of the Services, and the Equipment Technology and Software and Consumables supplied or utilised in connection with the Services are suitable and meet the Customer’s needs and specifications; and

This Agreement contains all terms, conditions, and specifications that the Client relies on.

BREACH AND TERMINATION

Breach Notice. If either party (“the first party”) requires the other party (“the defaulting party”) to remedy or resolve any alleged breach of the defaulting party’ obligations under this Agreement (including any SOW) or wishes to rely on the breach as a ground for termination of this Agreement, the first party or its lawyers must serve a written notice (“Breach Notice”) on the defaulting party setting out the:

Details of the alleged breach,

Action the first party requires to remedy the breach (if the breach can be remedied),

Time frame for remedying the breach which shall be reasonable and ordinarily not exceed 10 days (excluding any public holiday),

Consequences of not remedying the breach,

Consequences of continuing or repeated breaches,

Other relevant matters.

Termination. This Agreement shall terminate on the earlier of:

The end of the Term pursuant to sub-clauses 3.2 and 3.3.

If Breach Notice under clause 8.1 is not complied with.

If a non-defaulting party gives notice of termination to a defaulting party setting out the grounds for termination and the effective End Date (which may be immediately), without prior issue of a Breach Notice under clause 8.1 if the defaulting party:

Suffers an Insolvency Event;

In the case of the Customer, does not pay any undisputed amount more than 30 days after the due date if notice of overdue payment has been given at any time after the due date including a regular account statement or arrears notice; or the Client becomes an unacceptable credit risk in TIMG’s opinion;

Is convicted or found liable for any criminal, regulatory offence or civil claim or action that in the first party’s sole opinion is relevant to the Services

Does anything that could negatively impact on the reputation of the first party or jeopardise operation of its business;

Enters into or participates in any agreement, arrangement or understanding with any competitor or attempts to do the same, including with the first party; that in the first party’s reasonable opinion is connected to or relevant with this Agreement and could constitute cartel behaviour or otherwise be unlawful;

Discloses, copies or uses any Confidential Information or Intellectual Property or personal information of any person other than as permitted under this Agreement or by law;

Is fraudulent, dishonest, or materially misleading or has acted unlawfully in connection with the matters under this Agreement;

Has received two or more Breach Notices of any provision of this Agreement within any 12 month period, or three or more Breach Notices at any time during the Term; or is in continuing or recurring default of any of its obligations under this Agreement; whether or not any prior breaches or defaults have been rectified by the defaulting party;

Has breached or is in default of any other material obligation that cannot be remedied; or that causes this Agreement to no longer be reasonably feasible, desirable or practicable in the first party’s opinion for this Agreement to continue.

Pursuant to the Force Majeure provisions of this Agreement;

If no current Services are being provided or no SOWs are in place or have been in place for more than six months prior to the notice.

Consequences of Termination

The termination or expiry of this Agreement for any reason shall be without prejudice to any rights, remedies or obligations of a party accrued or events occurring prior to the End Date.

All Services and any current or pending SOWs under this Agreement shall terminate on the End Date of this Agreement. If the parties wish to continue or re-commence any Services, a replacement Agreement must be entered.

Except as strictly necessary during the Transition Period, the Client shall immediately cease accessing or using the Services or any TIMG Equipment and Technology or Software.

Each party shall promptly return, or permanently delete or destroy if it cannot be returned, all Confidential Information, Intellectual Property and any Goods or other property belonging to the other party that they hold or used for the provision or the Services.

TIMG shall cease supplying the Services on the End Date and the Transition Period shall commence.

Transition Period

Following termination for any reason, and subject to any security or other right under this Agreement held by TIMG, all Records will be permanently retrieved and removed from TIMGs possession or control by way of:

TIMG delivering the Records to the Client or its agent or new supplier; and/or

The Client uplifting the Records including by way of TIMG providing reasonable ongoing access to the Customer’s account or TIMG website portal, API or similar to enable the Client to download or copy all data and electronic Records required by the Customer; and/or

TIMG scanning the Records and the resulting electronic Records delivered or transferred to the Customer, agent or new supplier; and/or

TIMG securely destroying or disposing of the Records.

The Client must notify to TIMG in writing within 3 days after the End Date what action it requires TIMG to take with the Records, from the options set out above, and TIMG shall permanently retrieve the Records and carry out the requested action and/or enable the Client to access and download their data and Records reasonably promptly:

If no notice is given under paragraph (b), TIMG has no obligation to retain the Records or continue access for the Client to download or copy its Records, and TIMG may elect in its sole discretion to take all or any of the following actions:

deliver the Records to the Customer’s or its representatives last known physical or email address;

securely destroy or permanently delete the Records; or

retain them for any period of time.

TIMG shall have no obligation or liability to the Client or any third party, whatsoever for any loss, claim, damages or consequence of any action carried out by TIMG pursuant to paragraph (c); and the Client indemnifies and holds TIMG harmless for any claim or action, liability or damages suffered by TIMG in relation to the same.

The Client shall pay the Charges for all Services provided up to the End Date, plus TIMGs then current Charges for all Services and actions and expenses undertaken and incurred by TIMG during the Transition Period; including but not limited to retrieval, packaging, delivery, destruction, deletion or other secure disposal, scanning, ongoing storage or backup pursuant to paragraphs (b) or (c); until the date all Records are fully and finally removed from TIMGs possession or control.

The parties will consult and co-operate on all matters relating to the end of this Agreement pending and following the End Date and during the Transition Period, and TIMG shall provide reasonable time and resources at the Customer’s cost to assist with handover to any new supplier of the Services.

CONFIDENTIALITY AND PERSONAL INFORMATION

Confidential Information: No party will at any time, directly or indirectly disclose or permit any Confidential Information to be disclosed to any other person; or use, retain, or copy such Confidential Information other than for the purpose for which it was provided or obtained, and as is strictly necessary to give effect to this Agreement, except:

To the extent mandatorily required by law;

As is already public knowledge without a breach of this clause by the parties seeking to disclose or use such Confidential Information;

As is authorised in writing by the other party.

Personal Information:

To facilitate the administration, communications and efficient supply of the Services, and other purposes in connection with this Agreement, the parties may from time to time collect or acquire Personal Information from each other or legitimate external sources; and each party shall comply with all related obligations pursuant to the Privacy Act and all related codes and standards.

Notwithstanding sub-clause 9.2, if the Records in TIMG’s possession or control for the purpose of the Services comprise of, incorporate or include any Personal Information, it shall not be deemed to be Personal Information collected or stored by TIMG, and the Client shall be solely responsible and liable for compliance with the Privacy Act and its obligations to third parties in all regards including receiving and responding to any requests or demands, updating, amending, or providing access to authorised persons of such Personal Information, and any claim or action or liability for breach of privacy or similar.

TIMG will take reasonable measures to prevent unauthorised use or disclosure or access to such information, and shall if practicable, retrieve and provide access to Personal Information to the Client upon request.

TIMG excludes as far as legally permitted, all liability, duties or obligations related to such Personal Information in the Records; and the Client shall fully indemnify and hold TIMG harmless from any claim, action, costs, damages or liability against TIMG in relation to the same.

The Client shall pay TIMGs then current Charges for retrieval or other attendances in connection with the Personal Information.

EXCLUDED AND LIMITED WARRANTIES AND LIABILITY

No Consequential Damages: To the fullest extent permitted by law, unless specifically provided for herein, no party shall be liable to the other for any loss of profits or any other consequential, indirect or special loss, costs, damage, claim or liability of any kind suffered or incurred by the other party, or any other person arising directly or indirectly from any breach of the first party’s obligations under this Agreement, or from negligence, misrepresentation, criminal, deliberate or other act or omission.

TIMG Excluded Liability In addition to the exclusion of consequential damages, TIMG excludes all obligations, warranties and liability to the Client or any third party for:

Loss, damage or impairment to the Records or other Client property at any location, by any cause while in TIMGs possession or control under this Agreement, including due to any TIMG act or omission, during or after the Term; and the Client agrees that the Records, and any other Client property are placed into TIMGs possession or control for the purpose of the Services at the Customer’s sole risk.

Any implied or deemed warranty or obligation under the Consumer Guarantees Act 1993 and sections 9, 12A, and 13 of the Fair Trading Act 1986 is excluded where the Client is in trade and is not purchasing the Goods and Services for personal or household use.

Any loss or damage or impairment of the Records, or any Goods being delivered to or from the Customer; throughout the entire period of transit or carriage including any related storage. Delivery of all items shall for the purposes of Part 5 of the Contract and Commercial Law Act 2017 be carried at owners’ (the Customer’s) risk.

Any claim for loss or damage made outside the time frames specified in this Agreement.

Any other matter for which TIMG responsibility, warranties or liability is specifically excluded, or the Client specifically has sole responsibility, risk or liability specified elsewhere in this Agreement;

All other implied or deemed warranties or liability or obligation under any law, custom, or convention or practice (to the extent that they can be lawfully excluded).

TIMG Maximum Liability: Where liability is not excluded or otherwise specifically limited in this Agreement, the maximum aggregate liability or indemnity TIMG shall have to the Client within the Initial Period or each Renewal Period in respect of any and all claims or actions or proceedings for costs, loss, damages, liability; against or suffered by the Customer, under or in connection with this Agreement from any breach, negligence, misrepresentation, exercise of discretion, or other act or omission of TIMG, shall not exceed:

For any failure to deliver or achieve any specified service levels or other obligation as to performance, delivery, timeliness, errors, functionality or quality of the Services, at TIMGs discretion:

TIMG repeating or re-supplying the applicable Services at no further Charge;

TIMG refunding or crediting the Client an amount equivalent to the Charge for the affected Services or goods.

If TIMG is satisfied that a material fault, loss or damage, or defect has occurred or was present prior to delivery, access and installation of any Goods sold or supplied by TIMG:

For third party products; TIMG shall pass on the benefit of any warranty or guarantee from the third party able to be transferred to the Customer;

For TIMG proprietary products; TIMG shall replace, or at its option repair the items, or refund or credit the Client any Charges for Goods that cannot be reasonably replaced or repaired.

For any other claim or series of claims from one event, a maximum of $10,000 including GST if applicable.

The Client agrees that for the purpose of any loss, damages or claim regarding the Records or any component or part of them:

Each unit of physical Records and all information, property and rights therein consisting of a standard archive carton or its equivalent in space or volume or less, is $1.00 including GST;

Electronic Records, digital data stored on any server or other device or location; and all information, property and rights therein have no financial value;

There is no other intrinsic, tangible or intangible property or rights or financial value in the Records or any information in them for the purpose of any loss, damage or claim,

Storage Media are valued at the depreciated or market value, whichever is lower with no value attributed to any data or content within the Media.

Any reinstatement or recovery of Records or attempt to carry out the same by TIMG shall be charged to the Client at TIMGs then standard Charges.

THE CUSTOMERS RECORDS

Nature and content of Records. The Client warrants to TIMG, and shall ensure that the Records and any part of them:

Are legally obtained and owned by the Client (or its principle);

Do not contain any items or material or information other than as described in this Agreement or disclosed to TIMG;

Do not, include or contain any:

information or content that is unlawful or prohibited in New Zealand or the Customer’s jurisdiction if different, or that breaches the rights of any person, or any law, obligation or restriction;

any item or information for which a licence, permit or similar is required to be held but is not held by the Client and/or does not name or extend to by TIMG while in possession;

where supplied or transmitted in electronic format or upon any Storage Media, does not contain any malware, bugs or other harmful content, function or code

volatile, explosive, toxic, decomposing or otherwise dangerous or harmful substance or item,

cash or other legal tender,

items or substances that are prohibited or unlawful in New Zealand

TIMG may without any notice, compensation or liability to the Customer, destroy or render harmless, or remove from its premises and deliver to the Customers last known address any such Records or items that do not comply with paragraphs 11.1 (a)-(c), at the Customer’s cost based on TIMGs then standard Charges for those actions; and / or cease supply of the Services for those Records and/or terminate this Agreement.

Packaging and Delivery

The Client must cause all Records delivered to, or uplifted from, TIMG for the purpose of the Services that have not been fully packaged by or on behalf of TIMG to be suitably packed, stored, secure from tampering, and otherwise protected to avoid any loss, damage, impairment or unauthorised access during carriage, receipt and supply of Services; having regard to the nature of the Records and Services.

Any Records that would ordinarily be contained and / or collected or delivered in a Bin provided by TIMG will not be collected unless in a Bin or otherwise agreed in writing by TIMG. The Client is solely responsible for any loss or damage to Bins while at the Premises (or that should be at the Premises) and shall pay or indemnify TIMG for the actual cost of repair or replacement to any damaged, lost or missing Bins.

If the applicable to the Services, the Client must use the encryption and/or compression Software specified or provided by TIMG to ensure data is encrypted and compressed in size prior to being transmitted to TIMG to enable the data to be successfully transferred for storage or processing by TIMG.

The Client carries all risk and liability for any loss, damage or impairment to Records or related liability caused by or related to incorrect or inadequate packaging and protection; or not using a recommended or supplied Bin (even if agreed to by TIMG).

Any claim for missing, damaged, incomplete or faulty Records must be made in writing to TIMG within 14 days after delivery or supply or access is provided to the Customer, or 14 days from the date the loss was reasonably discovered by the Customer, if later. TIMG is not required to consider or respond to any claim made outside this time.

Subject to clause 2.3 (c), any delivery or collection of Records to or from the Premises by TIMG or its Affiliate shall be deemed complete at the time the Records are recorded by the carrier as delivered to, or uplifted from, the Premises, or if required under this Agreement, upon receiving a Client signature confirming delivery or collection.

Third Party Request for Records. If TIMG is served with any demand, request, order, warrant or legal requirement to produce, provide or give access to the Records to any person, (“order”):

TIMG shall if practicable and lawful, promptly notify the Client before responding to or complying with such order; and shall reasonably comply with any lawful Client request or directions and assist the Client to respond to, comply with, defend or oppose such order at the Customer’s cost including any retrieval, copying, scanning or delivery Charges.

Nothing shall prevent TIMG from complying with any order without notifying or seeking consent of the Client if legally required or if in TIMGs reasonable opinion, failure to comply with the order could cause TIMG to be in breach of any duty or obligation that could lead to any claim, action, liability, costs, damages or penalties against TIMG or any of its Workers.

The Client indemnifies and shall hold TIMG harmless from any action, claim, liability, cost, loss or damages in respect of TIMG responding to, complying with or opposing any such order, including TIMGs legal costs in seeking advice on TIMGs obligations, rights and options.

Location of Records. TIMG and its Affiliates operate and provide the Services at different locations within and outside the location of the Customer. TIMG shall have the right to store the Records and / or provide any part of the Services at any location in any jurisdiction that to TIMGs reasonable knowledge has equivalent or superior privacy, intellectual property and data protection laws to the jurisdiction of this Agreement.

Title in Records. Ownership and title of Records remains with the Client (subject to any security in favour of TIMG); however, if the Records are destroyed or deleted as part of the Services or during the Transition Period; all title and property and rights in the Records of any person shall be deemed extinguished at the time the Client requests or authorises destruction or deletion, or that TIMG otherwise obtains the right to do so.

INTELLECTUAL PROPERTY

Each party warrants to the other, that any Intellectual Property used or introduced or connected with this Agreement owned by that party, does not to the best of the warranting party’s knowledge infringe on the rights of any other person.

No Intellectual Property that is owned, licensed to, used, improved or developed by a party in any way connected with this Agreement shall be assigned, licensed or sub-licensed or deemed assigned or licensed to the other party; unless specifically provided for in this Agreement or a future SOW and/or an intellectual property licence or deed of assignment entered by the parties in connection with this Agreement.

If it comes to the notice of a party during the Term that use of any of the other party’s Intellectual Property in connection with this Agreement party infringes or allegedly infringes the rights of others, the first party shall not make any admissions or enter any settlement or take any substantive step in connection with the other party’s Intellectual Property but shall promptly notify that party and promptly take any steps as requested by the other party.

GENERAL

Interpretation and Application: In this Agreement, unless the context otherwise specifies or requires:

The singular includes the plural and vice versa;

Reference to a company or other entity includes reference to a person and vice versa;

A reference to a person includes a reference to the person’s executors, administrators, successors, substitutes, assigns, employees, agents, representatives and contractors;

Reference to a statute or regulation will include all amendments and re-enactments thereof and any subordinate legislation, mandatory code and regulations made thereunder;

Reference to a clause, schedule or annexure is reference to a clause of these General Terms and Conditions or a schedule or annexure of this Agreement.

All approvals, consents and waivers by a party must be in writing to be valid and enforceable.

An obligation not to do anything will be deemed to include an obligation not to permit or reasonably fail to prevent that thing to be done.

Priority: The provisions of these General Terms and Conditions shall apply to all Services supplied during the Term and have priority over any Schedule, Annexure or Statement of Work, unless otherwise specifically varied, waived or otherwise provided for in those parts of this Agreement.

Variation: This Agreement may only be varied in writing signed by both parties. Provided that, these General Terms and Conditions may be reasonably updated at any time during the Term by TIMG without notice to the Customer. The latest and applicable version shall be that version on TIMGs website or provided on request.

Entire Agreement: This Agreement constitutes the entire agreement between the parties and supersedes or overrides prior or subsequent agreements, representations, arrangements or understandings between the parties in any way relating to its subject matter; including as may be set out in the Customer’s own terms of supply provided to TIMG at any time unless agreed to by valid variation. The Client does not rely on any specific or implied undertaking, warranty or obligation of TIMG not included in this Agreement.

Severability: If any part of this Agreement is held to be unlawful, void or unenforceable it shall not impair the enforceability of the remaining parts of this Agreement.

Notices: Notices must be in writing and delivered in person, by courier or tracked mail, to addresses detailed in Part A. Notices are deemed given on the date and time of receipt or recorded delivery time. A party is entitled to rely on an address being current unless updated by similar notice.

Counterparts: This Agreement may be signed in any number of counterparts, including facsimile or scanned copies, all of which shall together constitute one and the same instrument and a binding and enforceable agreement between the parties. Any party may execute this Agreement by signing any such counterpart.

Force Majeure

A non-performing party shall not be liable or responsible to, or be required to indemnify the other party for any breach of this Agreement or failure or delay in performing or complying with any obligation under this Agreement (other than payment of Charges properly due) if:

The failure or breach is directly or materially due to, caused or contributed to by events, circumstances or forces beyond the reasonable control of the non-performing party such as but not limited to natural or weather event or disaster, fire, war or terrorist act, loss or interruption of access to utilities or essential supplies or services, pandemic or epidemic, an order of government or authority (“a force majeure event”); and

the force majeure event means continuing or achieving performance is reasonably impossible, impracticable, unsafe to person or property, unlawful, or no longer feasible; and

the non-performing party relying on the force majeure event has taken and continues to take reasonable steps to prevent, overcome or minimise or mitigate the occurrence or effect of the force majeure event on its performance.

If the failure or delay or other breach by a party continues for three months or longer after date of notice or to the force majeure event, either party may terminate this Agreement or the affected SOW by written notice to the other.

No Charges are payable for Services to the extent they are not provided during or due to a force majeure event; and the Client may at its own cost engage a third party to carry out the same or similar services. TIMG shall not be liable to the Client for any costs payable to a third party even they exceed the Charges that would have been payable for the same under this Agreement. The Client must pay TIMGs standard Charges for any retrieval and delivery of the Records to enable the third party to carry out the Services.

Assignment:

The Client must notify TIMG in writing of any sale of its business or change of ownership and change of contact details and Client name, where the Client has assigned their rights under this Agreement to a third party. The Client will not be released from its obligations or liabilities under this Agreement without TIMG written consent which will not be unreasonably withheld but may require the assignee to enter into a deed of assignment or new Agreement with TIMG, at the Customer’s cost.

TIMG shall notify the Client of any sale or assignment of TIMGs rights and obligations under this Agreement to any third party as soon as practicable pending or after the change. The Client shall if required by TIMG or the assignee enter into a new Agreement with the assignee at TIMG or the assignees cost.

Claims And Dispute Resolution

TIMG shall not be liable in respect of any claim by the Client of breach or loss or damage unless notice in writing of the claim is given within 30 days of the occurrence of the alleged event or default, or the day on which the Client become aware of the event or default (time being of the essence). Any notice shall state full details of the claim.

If any dispute or difference arises between the parties in relation to this Agreement or the matters under it; including where liability is denied or disputed after a notice of claim or any disagreement, matter or issue arises (“dispute”) a party may serve a notice of dispute on the other party, and the parties or their authorised representatives will enter into negotiations in good faith to attempt to resolve the dispute within 14 days (or such longer period as the parties may agree) of the date of the Dispute Notice. If the authorised representatives cannot resolve the dispute they will, unless otherwise agreed, each elevate the dispute to the CEOs and/or legal counsel to attempt resolution.

If the parties cannot resolve the dispute between them, mediation may then be initiated by notice to the to the other party and unless otherwise agreed, no additional or further claim or action may be taken by either party without first attempting mediation. Unless otherwise agreed, mediation shall take place in the city nearest TIMGs premises in accordance with the [Mediation Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc. (AMINZ)] [Australian equivalent]; which will be requested to appoint a mediator if the parties cannot agree on a suitable person to act as mediator. Suitable person shall mean a person with reasonable knowledge of the sector related to the Services, and a background in commercial contractual claims and disputes.

Nothing in this clause will prevent any party from taking immediate steps to seek urgent interlocutory relief where necessary to protect and preserve their legitimate rights or prevent further loss or damage; before an appropriate Court.

Survival. Following the End Date, all obligations, rights and restrictions under this Agreement:

That are specific to the Transition Period and otherwise reasonably necessary during the Transition Period shall survive and apply until all related obligations and actions during the Transition Period are complete; and

Relating to Intellectual Property, Confidential Information, the Privacy Act, Liability, Indemnities, Disputes Process, recovery of overdue Charges and other provisions that expressly or can be reasonably be implied to apply after termination of an agreement of this nature; shall survive and continue following the End Date.

Governing law: This Agreement will be governed by, and construed in accordance with, the laws of the jurisdiction specified in Part A and the parties submit to the non–exclusive jurisdiction of the Courts of that jurisdiction.