MATTR Customer Agreement

Definitions. In this Agreement, the following terms will have the meaning set out below:

Account means the account, and associated log-in details, you use to access the Services or Materials.

Affiliate means an entity controlled by a party, which controls a party or is under common control with a party. As used in this definition “control” and its variants means ownership of more than 50% of the voting equity of an entity.

Agent has the meaning given to it in clause 4.4.

Agreement means this Customer Agreement, together with all Order Forms and applicable Service Terms, Support Terms and Data Processing Terms.

API means an application programming interface.

Confidential Information means information including Materials disclosed by one party to the other party under or in connection with this Agreement, including the terms of this Agreement (which is confidential to MATTR), the Fees, any information about the disclosing party’s products, pricing or business plans, and any other information that:

1. is marked confidential;
2. the discloser advises is confidential at or around the time the information is communicated to the recipient;
3. the recipient knows or ought to know is confidential; or
4. is by its nature confidential,

but excludes information that:

5. is in the public domain, other than by breach of this Agreement;
6. is in the possession of the recipient without breach of confidentiality by the recipient or other person; or
7. is independently developed by the recipient.

Content means software (including source and object code, machine images, code snippets and samples), data, metadata, instructions, reports, documents, text, audio, video, images and other materials.

Copyleft Licence means any version of the GNU General Public Licence (“GPL”), including GPL v2, GPL v3, the AGPL and LGPL, or other open source licence terms that contain equivalent copyleft provisions to the GPL.

Customer Agreement means clauses 1-21 of this MATTR Customer Agreement, excluding the Order Form and Service Terms.

Customer Application User means an individual user of applications you create, implement or operate using the Services or Materials, including:

1. onboarding or issuance portals, digital wallet or credential verifier apps created by, using or dependent upon our platform, APIs and/or software development kits (“SDKs”); and/or
2. Customised Apps or licensed MATTR apps provided for you as part of the Services or Materials.

Customer Representative means an individual (including any Agent) involved with your implementation or operation of the Services or Materials, including:

1. MATTR Users; and
2. other individuals whose information we process in connection with the maintenance or administration of the relationship between you and us.

Customer Representative Information means:

1. information about Customer Representatives that you provide us or is generated through the use of our Services or Materials. For example, names, usernames, phone numbers, email addresses and billing information associated with your Account; and
2. usage data related to your Account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.

Customised App means a white labelled version of a MATTR web or mobile application, as may be specified in an Order Form.

Data Processing Terms means the document with that title which we provide to you or make available on the Site or through the Services, as may be updated by us from time to time.

Documentation means the user guides and admin guides (in each case exclusive of content referenced via hyperlink) for the Services located at https://learn.mattr.global (or any updated URL designated by us), as such user guides and admin guides may be updated by us from time to time.

Effective Date means the date when this Customer Agreement is agreed by both parties, or the date you otherwise access or use any of the Services or Materials, whichever is earlier.

End User means:

1. any individual acting on behalf of an Issuer or Verifier;
2. any Holder or Customer Application User; and/or
3. any other individual who directly or indirectly (i) uses Your Content or (ii) otherwise accesses, uses or benefits from the Services or Materials, including through services or materials you provide or support, and whether authorised by you or not, provided that End User does not include a Customer Representative in their role as a Customer Representative.

Feedback means all ideas, suggestions, feature or roadmap requests, comments and other feedback that you provide to us.

Fees means all amounts owing by you under this Agreement for the Services and Materials, as specified in an Order Form, including any:

1. fees calculated by reference to charges payable by us to third party suppliers;
2. fees calculated by reference to our standard rates or any daily or hourly rates specified in any Order Form; and
3. fixed fees or subscription charges.

Good Industry Practice means, in the performance of this Agreement, the exercise of the skill, diligence, prudence, foresight and judgment that would be expected from a skilled and experienced person engaged in such performance in the same or similar circumstances.

Sales Taxes includes any sales tax, value added tax or equivalent taxes imposed under the laws of any jurisdiction (including New Zealand or Australian Goods and Services Tax).

Holder means an individual who holds a verifiable credential processed directly or indirectly via the Services or Materials.

Intellectual Property means all intellectual property rights, including:

1. patents, designs, trademarks, service marks, copyright material or works, registered designs, database rights, domain name rights, trade names, symbols and logos (whether registered or unregistered); and
2. all formulae, methods, plans, data, drawings, specifications, characteristics, algorithms, source and object code, equipment, designs, inventions, discoveries, improvements, know-how, software, trade secrets and other proprietary information.

Issuer means a person or entity who issues verifiable credentials to a Holder directly or indirectly via the Services or Materials, including by using:

1. applications created by, using or dependent upon our platform, APIs and/or SDKs; and/or
2. applications or Customised Apps provided or licensed to you as part of the Services or Materials.

Law or Laws means:

1. any statute, regulation, bylaw, ordinance or subordinate legislation;
2. any binding court order, judgment or decree;
3. any binding order of any other governmental body; and
4. any applicable industry code, convention, policy or standard enforceable by law.

Losses means any claims, damages, losses, liabilities, costs, and expenses (including reasonable lawyers’ fees).

Materials means Content we or any of our Affiliates make available in connection with the Services or on the Site in connection with the Services, including APIs, SDKs, Customised Apps (other than Your Content included in such Customised Apps), Documentation, sample code, software libraries, command line tools, proofs of concept, prototypes, templates and other related technology (including any of the foregoing that are provided by our Personnel). Material does not include the Services.

MATTR Marks means any trademarks, service marks, service or trade names, domain names, logos, and other designations of us and our Affiliates that we may make available to you in connection with this Agreement.

MATTR User means authorised users of Services and/or Materials provided by MATTR to you or capability derived from the Services and Materials (e.g. your Agents, developers, product teams, security teams who use the MATTR portal, service desk portal, MATTR APIs, MATTR GO Hold, MATTR SDKs etc). MATTR User does not include an End User in their role as an End User.

Milestone Date means the target date for completion of a Milestone, as set out in an Order Form.

Month or Monthly means the period from a day of one month to the corresponding day of the next month, or if such does not exist, the last day of the next month.

Open Source Component means software provided by a third party and licensed on open source terms.

Order Form means an order for Services under this Agreement entered into by you and MATTR in one of the following ways:

1. by clicking to accept applicable details for an order for Services via an online process; or
2. by you and MATTR signing a written Order Form document.

Except for the purposes of clause 2.1 of this Customer Agreement, an Order Form includes and incorporates those Service Terms set out or referred to in it.

Overdue Interest Rate means the “Business Overdraft Base Rate” of ANZ Bank New Zealand Limited (Base Rate) plus 1.5% per annum (or, if the Base Rate ceases to be published, such alternative rate as notified by us from time to time).

Package Terms means Service Terms that apply across all or a specified collection of the Services set out in an Order Form.

Personnel means, in respect of a person, its agents, officers, employees and contractors.

Privacy Policy means the privacy policies located on the Site (and any successor or related locations designated by us), as may be updated by us from time to time.

Region means the geographical location where we will primarily store and process Your Content as part of the Services as specified in an Order Form.

Service means a service described in an Order Form and includes any Materials specified to be provided as part of the supply of that Service.

Service Terms means the terms and conditions that apply to your use of a Service as set out or referred to in your Order Form. Service Terms may be Package Terms or specific to individual Services and include all Specifications or other documents linked to or incorporated by reference in the Service Terms.

Service Credit means the dollar credit that we may credit back to an eligible Account in accordance with agreed Support Terms.

Site means our website at mattr.global and learn.mattr.global as may be updated by us from time to time, or any derivative, related or new site on which we offer our Services or you can access our Materials.

Site Terms means the terms of use that relate to any use of the Site, located on the Site (or any updated URL designated by us), as may be updated by us from time to time.

Specification means a description of a Service we will provide to you. A Specification may be linked to from the Service Terms for a Service and may be described as a Product Specification or Service Specification.

Start Date means the commencement date for a Service, as specified in an Order Form.

Support Terms means the Support Terms and Conditions specified or linked to in an Order Form. The Support Terms detail the Service Level Agreement that applies to our Services and/or Materials.

Tax or Taxes includes any present or future tax, levy, impost, duty, rate, charge or fee imposed or levied by any government authority in any country, together with any related interest, penalties or charges, but does not include a tax imposed on or calculated by reference to overall net income.

Term means the period for which we will provide Services and/or Materials to you, as specified in an Order Form.

Termination Date means the date that this Agreement or an Order Form terminates (as applicable) in accordance with clause 14 or the terms set out in the applicable Order Form (as the context requires).

Third Party Credential Capability Provider means (i) a smart phone platform provider (“OEM Wallet”) with a native wallet application for storing digital credentials; (ii) third party providers of trust list information or security certificate verification details for digital credentials; (iii) third party providers of services enabling Verifiers access to an OEM Wallet; and (iv) other third parties providing services, software, data or inputs that we designate as a Third Party Credential Capability Provider in an Order Form.

Trial Access means where we agree with you that we are providing you with access to certain of our Services and/or Materials for trial use only (including where you sign up for a free MATTR VII account on our website, or where you receive free trial access to our SDKs).

Verifier means a person or entity who verifies credentials directly or indirectly using the Services or Materials, including by using:

1. applications created by, using or dependent upon our platform, APIs and/or SDKs; and/or
2. applications or Customised Apps provided or licensed to you as part of the Services or Materials.

Working Days means any day other than Saturday, Sunday or a public holiday observed in Auckland, New Zealand.

Your Marks means any trademarks, service marks, service or trade names, domain names, logos, and other designations of you or your Affiliates.

Your Content means Content that you or End Users transfer to us for processing, storage or use in connection with the Services under your Account and any computational results derived through use of the foregoing via the Services or Materials. For clarity, Your Content includes Content that you or any End User stores with us in connection with our Services and Materials. Your Content does not include Customer Representative Information.

Your Systems means interfaces, software, platforms, systems, cloud services, infrastructure or distribution channels that are not owned or operated by us.

Interpretation. In this Agreement:

1. a reference to any document, enactment or regulation includes a reference to that document as amended or replaced from time to time;
2. headings appear as a matter of convenience and do not affect the meaning or construction of the Agreement;
3. the word “includes” or “including” and similar terms do not limit the meaning of preceding words;
4. a reference to a person includes a corporation sole and also a body of persons, whether corporate or unincorporated;
5. the singular includes the plural and vice versa;
6. words importing one gender include the other genders; and
7. any rule of law or legal decision that would require interpretation of this Agreement against the party that drafted it is not applicable and is hereby waived.

1. one or more Order Forms (including, for clarity, Order Forms that have been accepted by you through an online ordering process), referencing this Customer Agreement;
2. Service Terms referred to in, or incorporated into, an Order Form;
3. other documents linked to, or incorporated by reference in, the Order Form or Service Terms, such as Specifications;
4. this Customer Agreement, which applies to all Services to be supplied by MATTR to you; and
5. any applicable Support Terms and Data Processing Terms.

1. Service(s) and/or Materials to be provided under this Agreement will be set out in Order Forms. An Order Form may include additional terms and conditions and will incorporate the Service Terms that apply to each relevant Service.
2. The parties may agree to add further Services or Materials under this Customer Agreement from time to time, by entering into one or more subsequent Order Forms, referencing this Customer Agreement.
3. Any services, software and/or hardware not expressly specified in an Order Form as being provided by MATTR are out of scope and will be subject to additional Fees on a time and materials basis at MATTR’s standard rates from time to time.
4. In addition to any Services and/or Materials purchased in an Order Form, we can provide you the following disengagement services on request, on a time and materials basis at MATTR’s standard rates:
   1. disengagement planning services;
   2. support for the migration of Your Content; and
   3. other services as agreed as part of any disengagement plan.
5. Order Forms may be entered into with a reseller rather than directly with us. If that is the case your obligation to pay the Fees will be to the Reseller rather than to MATTR. All other obligations of this Agreement will apply directly between you and MATTR.

1. in accordance with (i) the applicable Order Form and Service Terms; and (ii) this Customer Agreement;
2. in accordance with Good Industry Practice;
3. where no specific timeframe is provided in this Agreement, within a reasonable time;
4. with reasonable care and skill, using suitably qualified Personnel;
5. in accordance with Laws that apply to our business as a provider of IT products and services; and
6. in accordance with any Service quality requirements expressly specified in this Agreement.

1. For Fees calculated by reference to hourly or daily rates of our Personnel, we may change such hourly or daily rates on each anniversary of the signing of an Order Form.
2. For fixed Fees or subscription charges, we may propose an increase to such Fees to take effect after the expiry of the initial fixed term of any Order Form (i.e. that is, prior to you exercising any renewal under that Order Form).

1. the applicable Services and/or Materials continue to substantially comply with the applicable Order Form and Service Terms; and
2. we do not materially diminish the core functionality of the applicable Service and/or Materials.

1. address or avoid a security or Intellectual Property risk to us or the Services or Materials;
2. avoid any violation of any Law or reflect any regulatory change; or
3. maintain the commercial viability, security and availability of the Services or Materials.

1. protect the Services, Materials and Your Content against accidental or unlawful loss, access, modification or disclosure;
2. identify reasonably foreseeable and internal risks to security and unauthorised access; and
3. minimise security risks, including through regular risk assessments and testing.

1. certain types of data may be provided to our data sub-processors pursuant to clause 6.3 below, at the location for each sub-processor specified at https://learn.mattr.global/docs/resources/terms/data-sub-processors from time to time; and
2. where necessary in connection with providing the Services or administering this Agreement, our personnel located in another location (for example, New Zealand) may access Your Content as stored within the Region or where the systems of our data sub-processors are located.

1. maintain or provide the Services and Materials;
2. comply with the Law or legal processes, or to exercise, establish or defend our legal rights (and if we are allowed to, we will notify you of any request to disclose); or
3. mitigate potential negative implications of a disaster or security incident (as determined by us) which may include transfer of your data to a different location within the Region if one is available.

1. making available to each category of End User all required information about how their personal information will be collected, used, stored, transferred, processed and/or disclosed as required under applicable data protection and privacy laws; and
2. obtaining any required End User consents for the collection, use, storage, transfer, processing and disclosure of personal information, sensitive information or special category data (as those terms are defined in applicable data protection and privacy laws).

1. the recipient needs to disclose the Confidential Information to its professional advisors, provided that the recipient’s professional advisors are contractually required themselves to keep the Confidential Information confidential;
2. disclosure is required by Law or a Stock Exchange requirement, in which case, the recipient of the Confidential Information must promptly, where possible and permitted by Law, notify the discloser and only disclose the portion of Confidential Information necessary to satisfy the requirement; or
3. the recipient needs to disclose the Confidential Information to its Personnel to perform its obligations and exercise its rights under this Agreement.

General responsibilities. You must:

1. ensure that Your Content, and its use (including by End Users) comply with this Agreement and all applicable Laws;
2. use and configure the Services, Materials and any integration, portals, mobile applications or user interfaces that you create that interact with the Services and/or Materials in accordance with the Documentation;
3. ensure that Content provided to us in connection with this Agreement is accurate, complete, up-to-date and not misleading in any material respect;
4. provide information, co-operation and assistance to us and our Personnel on reasonable request;
5. make suitable Personnel available to us, ensure that they attend meetings, answer questions, provide information, and make decisions in a timely fashion, and ensure that any information they provide to us is accurate, up-to-date and complete;
6. comply with our reasonable directions in connection with the security and integrity of the Services;
7. properly configure and use the Services, including any Materials provided as part of the Services;
8. not provide Content to us to the extent it is subject to additional security measures not agreed in writing;
9. only use Services and Materials within the restrictions and limitations specified in the applicable Service Terms; and
10. comply with any of your other responsibilities as set out in an Order Form.

Account and payment. To access the Services, you must have an Account associated with a valid email address and a valid form of payment or agreed payment process in a signed Order Form.

Trial Access. We may provide you with Trial Access to Services and/or Materials. To the extent you are receiving Trial Access, either party may terminate that Trial Access for convenience at any time. Any Services and/or Materials provided via Trial Access are provided solely on an “as is” and “as available” basis and clauses 4.1 and 17.1 do not apply. You agree that we may not meet the service levels specified in the Support Terms and you will not be eligible for Service Credits in respect of Trial Access. We may do any of the following in respect of Services and/or Materials provided via Trial Access: (i) vary the Services and/or Materials at any time (including by making breaking changes, or changes that materially diminish the functionality you receive) without notice to you; (ii) remove, replace, retire or make end of life any part of the Services and/or Materials without notice to you and without complying with the Support Terms, (iii) suspend your access to all or any part of the Services and/or Materials without cause; (iv) amend the terms of this Customer Agreement, the Support Terms and the Data Processing Terms immediately on notice in writing to you. The indemnity in clause 16.2 does not apply to any Services and/or Materials provided via Trial Access. You must not use Services and/or Materials provided via Trial Access in production, for any commercial use or with any of your Confidential Information or personal information of real individuals without our express prior consent. The provisions of this clause 9.3 apply in respect of Trial Access notwithstanding any other provisions of this Agreement.

Services requiring access credentials. If a Service involves the use of access credentials (such as passwords, private keys, API keys, 3rd party secrets for access to claim sources or other secrets) by you or your Customer Representatives or End Users, you are responsible for protecting such credentials against unauthorised use or disclosure and you must not sell, share, transfer or sub-licence them except:

1. to the extent that we permit in writing (which we may permit subject to conditions); and
2. that you may disclose credentials to your Personnel performing work on your behalf.

Your accounts. Except to the extent caused by our breach of this Agreement:

1. you are responsible for all activities that occur under your Account, regardless of whether the activities are authorised by you or undertaken by you, your Personnel, Agents, Customer Representatives, End Users or a third party; and
2. we and our Affiliates and Personnel are not responsible for unauthorised access, interference or modification to your Account, or any unauthorised access, modification, loss or disclosure of Your Content or personal information or other data in your Account.

End Users. You are responsible for Customer Representatives’ and End Users’ use of Your Content, the Services and the Materials. You must ensure all End Users comply with the terms of this Agreement and agree to terms that are consistent with this Agreement. We do not have to provide any support or services to End Users unless we have a separate agreement with you or them for the provision of such support or services or are required to support them by Law (e.g. with access to personal information).

Sandbox and prototypes. If we make available a sandbox environment, or any demo, tech preview, beta or prototype Services and/or Materials, you may only use such Services and/or Materials with dummy or test data unless we provide express written consent for wider use. You must only use such Services and/or Materials for the sole purpose of evaluating capabilities in a non-production, non-commercial environment. You will ensure that all data entered into such Services and/or Materials by you and your Customer Representatives is not data that is, or is likely to constitute, personal information or Confidential Information, unless you have our express prior written consent for such use.

Failure to meet your obligations. We will not be responsible for any failure to meet or delay meeting our obligations under this Agreement to the extent caused or contributed to by:

1. your failure to comply with your obligations under this Agreement or failure to provide timely input or decisions or take appropriate action; and/or
2. your information, material, input or decisions,

each an “Excused Event”.

You will still be responsible for paying the Fees applicable for a period affected by an Excused Event.

Fees.

1. In exchange for our commitment to supply Services and/or Materials, you must pay us the Fees specified in an Order Form.
2. To the extent that an Order Form specifies any:
   1. fixed Fee, we will charge you that fixed Fee;
   2. variable Fee (other than an estimated time and materials Fee), we will charge in accordance with the specified calculation methodology for the variable Fee;
   3. estimated or time and materials Fee, we will charge time and materials Fees at the rates specified (or our standard rates, if no such rates are specified); or
   4. Fee in respect of a defined quantity or allocation of Services or Materials (e.g. a number of End Users, or a fixed number of hours of professional services), the full Fee set out in the Order Form will be charged irrespective of whether you use the entire quantity or allocation.
3. Any estimate of time and materials Fees must be calculated by MATTR in good faith based on the information available to it at the time, but are estimates only.
4. Unless otherwise expressly stated in an Order Form, payment of Fees is not conditional on acceptance or use of Services or Materials to be provided as part of the Services.
5. Unless expressly stated otherwise in an Order Form, any reference to a monetary amount is a reference to United States Dollars.

Invoicing. We will issue invoices to you in respect of the Fees as specified in the Order Form. Invoices are payable by the date specified in the Order Form, or if no date is specified, by the 20th of the month following the month in which the invoice is received.

When charging starts. We may begin charging you for a Service from the earliest of:

1. the date on which we first make any part of the Service or Materials available to you; or
2. the date specified in an Order Form.

Unless we cause a delay in making Services or Materials available, charging will apply in accordance with this clause even if you do not start consuming the relevant Service or Materials at the time charging is permitted to start.

Costs and disbursements. In addition to the Fees, you will pay us for all pre-approved costs and expenses incurred by us in connection with providing you the Services and Materials.

Payment terms. You must pay all Fees payable under this Agreement by the due date without any set-off, counterclaim, deduction or other withholding. We may charge you interest at the Overdue Interest Rate on any unpaid Fees from the date such unpaid Fees became due until the date payment is received into our account in cleared funds. However, if the Overdue Interest Rate exceeds the maximum permitted legal interest rate, the interest chargeable will be reduced to reflect the maximum permitted legal interest rate.

Fees exclusive of Taxes. Our Fees exclude Sales Taxes and all other Taxes. If we are liable for any Sales Taxes or any other Tax in respect of the provision of the Services or Materials or any other supply we make under this Agreement, you will pay us, in addition to and at the same time as our Fees, an amount equal to the amount of such Tax, subject to receipt of a tax invoice (if applicable).

Withholding Tax. If:

1. you are required by Law to make any deduction or withholding from any amount payable to us under this Agreement; or
2. we are required by Law to pay any Tax in relation to any amount receivable by us under this Agreement,

you must pay to us such additional amounts as are necessary so that, after making the deduction, withholding or payment, the net amount received and retained by us is equal to the amount we would have received and retained had no such deduction, withholding or payment been made.

1. we determine on reasonable grounds that your or any End User’s use of the Services or Materials: (i) is in breach of clauses 7, 9, or 10; (ii) could subject us, our Affiliates, our Personnel or any third party, to liability; (iii) could be fraudulent; or (iv) is prohibited under clause 21.6;
2. you are otherwise in breach of this Agreement;
3. you have failed to pay any required amount under clause 11 in respect of any Service or Materials by the due date; or
4. you have ceased to operate in the ordinary course of business, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any insolvency, bankruptcy, reorganisation, liquidation, dissolution or similar proceeding.

1. you remain responsible for all Fees you incur during the period of suspension; and
2. you will not be entitled to any Service Credits under the Support Terms for any period of suspension.

1. to the extent we have the right to suspend under clause 13;
2. if our relationship with a third-party partner who provides software or other technology we use to provide affected Services or Materials expires, terminates or requires us to change the way we provide the software or other technology as part of the Services or Materials;
3. to comply with any applicable Law or legal processes; or
4. if we are subject to any legal or regulatory changes that we consider make it technically or commercially burdensome for us to continue providing the affected Services or Materials to you.

1. except as provided in clause 14.4, all your rights under this Agreement or the applicable Order Form with respect to affected Services and Materials immediately terminate;
2. if one or more Services or Order Forms is terminated (but not other Services, Order Forms or the entire Agreement), such termination will not affect any remaining Services, Materials or Order Forms in effect between the parties or this Customer Agreement;
3. you remain responsible for all Fees you have incurred for affected Services and Materials up until, and including, the Termination Date and are responsible for any Fees you incur for those affected Services or Materials during the post-termination period described in clause 14.4;
4. you will immediately return or, if instructed by us, destroy all Material provided in connection with affected Services which are in your possession; and
5. clauses 1, 9.5(a), 11, 14, 15 (except the licence granted to you in clause 15.3), 16, 17, 18 and 21 will continue to apply in connection with the affected Services and Materials.

1. we will not take action to remove Your Content from the Services as a result of the termination for 30 days following the Termination Date; and
2. we may remove Your Content from the Services any time following that 30 day period unless otherwise agreed with you in writing.

1. you or your licensors own all right, title, and interest in and to Your Content and Feedback, including to Intellectual Property;
2. you have all rights in Your Content and Feedback necessary to grant the rights contemplated by this Agreement; and
3. none of Your Content and End Users’ use of Your Content or the Services, Materials or Site will breach clause 7, 9, or 10, or otherwise breach any applicable third-party licence, developer or other terms that apply (e.g. Google Pay or Apple Wallet terms).

1. the Services, Site, the MATTR Marks and Materials; and
2. any changes, updates or improvements to the Services, Site, MATTR Marks and Materials over the course of this Agreement, including (i) where made by us in the course of providing Services to you or (ii) where we have outlined certain changes we intend to make with you, discussed changes with you, and/or asked for your Feedback.

1. modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Content included in the Services or Materials (except to the extent Content is provided to you under a separate licence that expressly permits the creation of derivative works);
2. reverse engineer, disassemble, or decompile the Services or Materials or apply any other process or procedure to derive the source code of any software included in the Services or Materials (except to the extent applicable Law doesn’t allow this restriction);
3. access or use the Services or Materials in a way intended to avoid incurring fees, bypass usage limits or bypass quotas.

1. we and our Affiliates may use, disclose, modify or develop the Feedback for any purpose without restriction and without attribution or compensation to you or any other person; and
2. you irrevocably assign to us all right, title, and interest in and to the Feedback and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Feedback.

General. You will defend, indemnify, and hold harmless us, our Affiliates and our licensors, service providers and suppliers, (and each of our and their respective Personnel) from and against any third-party claim against us arising out of or in connection with:

1. your or any Customer Representatives’ or End Users’ access to or use of the Services or Materials (including any activities under your Account and use by your Personnel); or
2. a dispute between you and any End User.

You will reimburse us for reasonable legal fees, as well as time and materials spent by our Personnel responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in this clause at our then-current hourly rates.

The Services. Subject to the limitations in this clause 16, we will defend you and your employees, officers, and directors against any third-party claim alleging that the Services infringe or misappropriate that third party’s Intellectual Property, and will pay the amount of any adverse final judgment or any settlement agreed by us.

Your Content. Subject to the limitations in this clause 16, you will defend us, our Affiliates, and our and their respective Personnel against any third-party claim alleging that any of Your Content infringes or misappropriates that third party’s Intellectual Property, and will pay the amount of any adverse final judgment or settlement agreed by you.

Exclusions. We will have no obligations or liability to you under clause 16.2 arising out of or in connection with:

1. modification of the Services or Materials by anyone other than us or our Affiliates;
2. combination, operation or use of the Services or Materials with any other goods, software, product, data or services not provided by us; or
3. you, or any Customer Representative’s or End User’s use of the Services or Materials after we have notified you to discontinue such use.

The remedies provided in this clause 16 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of Intellectual Property by the Services or by Your Content.

Remediation. For any claim covered by clause 16.2 we will, at our option, either:

1. procure the rights to use that portion of the Services alleged to be infringing;
2. replace the alleged infringing portion of the Services with a non-infringing alternative;
3. modify the alleged infringing portion of the Services to make it non-infringing; or
4. terminate the allegedly infringing portion of the Services or this Agreement or both (as applicable).

Process. The party seeking defence or indemnity under this clause 16 must:

1. give the other party prompt written notice of the claim;
2. not make any admission and must not purport to settle the claim without the other party’s prior written consent;
3. permit the other party to control the defence and settlement of the claim; and
4. reasonably cooperate with the other party (at the other party’s expense) in the defence and settlement of the claim.

Specification. We warrant that each Service will substantially comply with the Specification for it set out in the applicable Service Terms.

Exclusion of warranties. To the maximum extent permitted by law, no warranties apply to the Services and/or Materials other than those expressly set out in this Agreement. Except to the extent prohibited by Law (or to the extent any statutory rights apply that cannot be excluded, limited or waived):

1. we and our Affiliates and licensors exclude all implied or statutory warranties, including any warranties arising out of any course of dealing or usage of trade regarding the Services and/or Materials; and
2. the Services and/or Materials are not provided subject to any warranties: (i) of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or quiet enjoyment; (ii) that the Services and/or Materials will be uninterrupted, error free or free of harmful components; or (iii) that any Content will be secure or not otherwise lost or altered.

However, see clause 18.7.

Limitation. Subject to clauses 18.2-18.4, in no case will each party and its Affiliates’ and licensors’ aggregate liability under this Agreement to the other party exceed the amount you actually pay us under this Agreement for the Service or Materials that gave rise to the claim during the 12 months before the liability arose.

Matters outside liability cap. The limitation of liability in clause 18.1 does not apply to liability arising out of or in connection with any of the following:

1. fraud or wilful misconduct by either party or their Personnel;
2. your obligation to pay the Fees, interest on Fees, costs for the recovery of Fees, Taxes, gross-ups or any other amount due to us under clauses, 11 or 12;
3. our obligations under clause 16.2 and your obligations under clause 16.3;
4. infringement or unauthorised use of our Intellectual Property;
5. any indemnity by you under this Customer Agreement; and
6. either party’s liability for breach of clauses 7 or 8, provided that our total aggregate liability to you for breach of clauses 7 or 8 will instead be limited to 3 times the total Fees payable in the 12 months prior to the first event giving rise to liability.

Exclusion. Neither party nor its Affiliates will be liable to the other party under or in connection with this Agreement for (i) any indirect or consequential loss; or (ii) loss of profits, revenues, customers, opportunities, goodwill, use, or data or for any exemplary damages. In addition, we will not be liable to you for any compensation, reimbursement or damages arising out of or in connection with your inability to use the Services or Materials as a result of: (iii) this Agreement or your use of or access to the Services or Materials being terminated or suspended in accordance with this Agreement; or (iv) downtime or unavailability of any part of the Services or Materials, except as expressly stated in our Support Terms.

However, see clause 18.7.

Recovery of data. Our liability for loss of or damage to Your Content stored on our platform is limited to taking reasonable steps to recover the affected data from our available backups within the applicable Region.

Application of Law. The exclusions and limitations set out in this clause 18 apply only to the maximum extent permitted by applicable Law. See clause 18.7.

Proportionate liability. Each party’s liability for any Losses suffered by the other party under or in connection with this Agreement will be reduced proportionally to the extent the other party contributed to such Losses.

Consumer Laws. In some places, like New Zealand and Australia, there may be non-excludable warranties, guarantees or other rights provided by Law (Non-excludable Consumer Guarantees). They still apply – these terms do not exclude, restrict or modify them. Except for such Non-excludable Consumer Guarantees and other rights you have that we cannot exclude, we expressly exclude all warranties and guarantees and we are only bound by the express terms set out in this Agreement. Our liability for breach of a Non-excludable Consumer Guarantee is limited, at our option (and subject to clause 18.1), to either re-performing, refunding, replacing or paying the cost of replacing the relevant service (unless the Non-excludable Consumer Guarantee says otherwise, in which case it is limited to the greatest extent allowed by the Non-excludable Consumer Guarantee).

Mitigation. Each party must take reasonable steps to mitigate any Losses that it may suffer under or in connection with this Agreement.

No poaching. For the duration of this Agreement and for 6 months after its termination, you must not directly or indirectly solicit or offer employment or a contract for services to any MATTR personnel, except with MATTR’s prior consent.

Assignment. You must not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, except with our prior written consent. Any assignment or transfer in violation of this clause 21 will be void. We may novate, assign or otherwise transfer this Agreement without your consent:

1. in connection with a merger, acquisition or sale of all or substantially all of our assets; or
2. to any Affiliate or as part of a corporate reorganisation,

and in the event of a novation or transfer, effective upon the novation or transfer, the new party nominated by us is deemed substituted for us as a party to this Agreement and we are fully released from all of our obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.

Entire agreement. This Agreement is the entire agreement between you and us regarding its subject matter. It supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, (whether written or verbal) regarding the subject matter of this Agreement. We will not be bound by any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement, and whether or not they are prior to, contemporaneous with, or subsequent to this Agreement) including terms contained in your purchase orders, receipts, confirmations, RFx documentation and other standard terms.

Force majeure. We and our Affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labour disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications or cloud infrastructure failures, earthquake, storms or other elements of nature, epidemics, pandemics, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

Governing Law and jurisdiction. This Agreement will be governed by the Laws of New Zealand and subject to clause 19.2, you consent to the non-exclusive jurisdiction of the New Zealand courts. You must not object to the transfer of any proceedings to New Zealand courts on any basis, including inconvenience. The parties agree that United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

Export control. Each party will comply with export control and sanctions laws and regulations applicable to its business. You are solely responsible for your compliance with applicable laws in relation to how you choose to use the Services, including the transfer and processing of Your Content, the provision of Your Content to End Users, and the Region in which any of the foregoing occur. You must not use our Services in violation of any export or trade embargo laws that apply to you. You represent and warrant that you are not in a jurisdiction subject to sanctions that would affect our provision of the Services or Material or otherwise designated on any list of prohibited or restricted parties maintained by the United Nations Security Council, the European Union or its Member States, the United States, New Zealand or other applicable government authority.

Our relationship with you. We and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Except as expressly provided in this Agreement, neither party, nor any of their respective Affiliates, or personnel is an agent of the other for any purpose or has the authority to bind the other.

Third-Party beneficiaries. This clause 21.8, clause 21.9 and the terms set out in clause 16 relating to indemnified third parties and the references in this Agreement to our Affiliates, licensors, service providers and suppliers are expressed for the benefit of those persons for the purposes of the Contract and Commercial Law Act 2017 (Part 2, Subpart 1). Otherwise, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.

You may only make claims against us. Where you have any claim arising out of or in connection with the Services, Materials, this Agreement, you may only make that claim directly against us (and not against any of our Personnel, Affiliates, licensors, service providers and suppliers). None of our Affiliates, licensors, suppliers and service providers (or their Personnel), will be liable to you or required to compensate you for any Losses of any kind that you may suffer in connection with the Services, Materials or this Agreement.

Material Adverse Change. For the purposes of this clause, a “Material Adverse Change” will mean any state or federal government action, decision, executive order, change in Laws, regulatory change (to avoid doubt including the introduction of any new taxes, import or export duties, tariffs or export controls) occurring during the Term which has or is likely to have a material adverse impact on: (i) our compliance with this Agreement; or (ii) the technical, operational or commercial viability of our provision of the Services or Materials as envisaged by this Agreement. Despite any other provision of this Agreement, if a Material Adverse Change occurs during the Term:

1. we may give notice to you setting out details of the Material Adverse Change and any proposed variation to this Agreement (including to the Fees, Services or Materials);
2. the parties will promptly meet to discuss the Material Adverse Change and endeavour to agree any appropriate variation to this Agreement; and
3. if the parties cannot agree on a variation within 30 days of notice of a Material Adverse Change, we may terminate the applicable Order Form or the Agreement by 15 Working Days’ notice in writing.

Non-exclusive. Nothing in this Agreement implies an obligation of exclusivity on us. You acknowledge that we may supply the same or similar services or materials to other customers.

No waiver. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision or any other provision at a later time. All waivers by us must be in writing to be effective.

Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to give effect to the intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement, but the rest of the Agreement will remain in full force and effect.