1 APPLICATION
1.1 These Terms and the PSA apply to all SonaSafe Products and/or Services supplied by SonaSafe to the Client.
1.2 Where the SonaSafe and the Client have entered into a PSA (as defined under clause 2.1 below), these Terms and the terms of the PSA will apply. In the event of any inconsistency between these terms and the terms of the PSA, the terms set out in the PSA will prevail.
1.3 Any additional or special terms will only apply if they are agreed in writing and signed by both parties.
1.4 Any terms and conditions of a Client will only apply if they are agreed in writing by SonaSafe, and in the event of any inconsistency between these Terms and the terms and conditions of the Client, these Terms will prevail.
2 DEFINITIONS
2.1 In these Terms, unless the context otherwise requires:
(a) Agreement means any written agreement between SonaSafe and the Client, including (without limitation) the PSA;
(b) Business Day means a day other than a Saturday, Sunday or public holiday in New Zealand;
(c) Client means the client of SonaSafe who is purchasing the SonaSafe Products or engaging SonaSafe for the provision of Services;
(d) Client Data means any data that:
(i) is provided by, or on behalf of, the Client for processing by SonaSafe or for the purpose of providing the Services, deliverables and/or access to the SonaSafe Dashboard; and
(ii) relates to the Client’s business and is generated in the course of receiving the Services, deliverables and/or access to the SonaSafe Dashboard;
(e) Client Responsibilities means the responsibilities of the Client as specified in these Terms, the Proposal and/orPSA that the Client is required to carry out to facilitate SonaSafe’s performance of the Services;
(f) Confidential Information means all information of a confidential nature, in any form whether tangible or not and whether visible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into the PSA and includes, without limitation, any information (including Personal Information) and material concerning the contractual or commercial dealings, financial details, products or services (current or proposed), customers, employees, internal policy or other proprietary information or material of a party or dealings under the PSA;
(g) Control means with respect to any entity or person, possession of the power, directly or indirectly, to direct or cause the direction of the management policies of such entity or person, whether through legal and/or beneficial ownership of shares or otherwise;
(h) Consequential Loss means any loss, damage, cost, or expense that does not arise directly from a breach of theseTerms but occurs as a secondary or indirect result of that breach, including, without limitation:
(i) loss of profits, revenue, or business;
(ii) loss of anticipated savings;
(iii) loss of use, production, or opportunity;
(iv) loss of reputation or goodwill; and
(v) loss of data or information.
(i) Covered Environment means the specific area(s) of the Site and/or the specific area(s) around the Client’s vehicles, plant or equipment, intended to be covered by the SonaSafe System;(j) Documentation means the specifications, operating manuals, user instruction manuals, technical literature, and all other materials relating to the installation, use, maintenance, support and/or servicing of the relevant SonaSafe Products and/or Services;
(k) End User means the Client’s personnel, agents and subcontractors who are granted access to the SonaSafe Products by the Client;
(l) Fees means the amounts payable by the Client to SonaSafe for the provision of the relevant SonaSafe Products and/or Services;
(m) Force Majeure Event means any of the following events:
(i) epidemic or pandemic;
(vi) act of terrorism, war (either declared or not declared), civil disorders, revolution or act of public enemies;
(vii) flood, storm, tempest, earthquake, fire, explosion or other act of God;
(viii) act or restraint of any national or governmental authority; or
(ix) strike or lock-out, and any other event or factor (similar to the events described above) beyond the reasonable control of the party adversely affected, which prevents, delays or hinders the performance by either or both parties of their obligations under these Terms;
(n) Generated Data means new data other than the ClientData generated or derived as part of providing the SonaSafe Products and/orServices;
(o) GST means goods and services tax payable under the Goods and Services Tax Act 1985;
(p) HSAW means the Health and Safety at Work Act 2015, associated regulations and any relevant codes of practice, as may be updated from time to time;
(q) Insolvency Event means where
(i) the Client is or becomes or is deemed to be insolvent or bankrupt;
(ii) the Client goes into receivership or has a receiver, administrator, trustee and/or manager (including a statutory manager)or any analogous official appointed in respect of all or any of the Client’s property or assets;
(iii) any resolution is passed by the Client or any other corporate body for its dissolution or liquidation (except for the purposes of a solvent reconstruction), or a distress, attachment, execution or other legal process in respect of indebtedness of the Client is levied or enforced on the Client and is not discharged or stayed within 15 Business Days; or
(iv) any other insolvency event or proceedings analogous to any of the foregoing occurs in relation to the Client;
(r) IP Rights means any registered or unregistered, intellectual property including any and all rights to and interests in, or protecting, any and all industrial and intellectual property of any kind, whether or not in a material form, including but not limited to copyrights, patents, trademarks, brandnames, designs, (or equivalent in any jurisdiction), any processes, formulae, designs, reports, drawings, specifications, software, blue prints, know-how, experiences, characteristics, inventions, discoveries, improvements and research data, in relation to any industry;
(s) Minimum Standards means the minimum technical and functional standards of hardware and software specified by SonaSafe to enable effective performance of the Services, as set out in the Documentation, and as may be updated or otherwise notified by SonaSafe to the Client from time to time;
(t) Personal Information means “PersonalInformation” or “Personal Data” as defined under the Privacy Act 2020, andwhich the SonaSafe has received or has access to;
(u) PPSA means the Personal PropertySecurities Act 1999;(v) PPSR means the Personal Property Securities Register established under the PPSA;
(w) PSA means the Products and Services Agreement between SonaSafe and the Client setting out the specific SonaSafe Products the Client will purchase from SonaSafe and/or Services that the Client will engage SonaSafe for, as well as the terms on which SonaSafe will provide ongoing support to the Client, including the Service Level Indicators;
(x) Proposal means any proposal, quotation, offer, statement of work, scope of work or other document submitted by SonaSafe to the Client describing the SonaSafe Products and/or Services to be supplied, including any specifications, proposed pricing, invoicing, payment terms, deliverables, timelines or other related information;
(y) Quote means the statement issued by SonaSafe specifying the price and scope for the supply of the SonaSafe Products and/orServices. A Quote will be provided to the Client with the Proposal and/or PSA.
(z) Related Company has the same meaning as in section2(3) of the Companies Act 1993 (read as if the expression “company” in that subsection included anybody corporate of any jurisdiction);(aa) Related Party in respect of a person (first person) means, a Related Company of the first person, and any person that Controls or has a direct or indirect equity or ownership interest in the first person, is Controlled or directly or indirectly part owned by the first person, or is Controlled or part owned by the same person that Controls or directly or indirectly part owns the first person, and includes, if the first person is an individual, any spouse, partner or relative of the first person or any relative of the spouse or partner of the first person;
(bb) Security Interest has the meaning given to that term in the PPSA;
(cc) Service Level Indicators means the specific service level indicators set out in the PSA;
(dd) Services means the services SonaSafe will provide to the Client, including installation and Support Services;
(ee) Site means the Client’s Site;
(ff) SonaSafe Dashboard means SonaSafe’s software-as-a-service, cloud, or another hosted platform;
(gg) SonaSafe Products means the hardware, software and equipment, including the SonaSafe System and the SonaSafe Dashboard;
(hh) SonaSafe System means the advanced machine operator awareness system which is fitted to the Client’s vehicles and other plant and equipment, and which includes the SonaSafe Dashboard;
(ii) Support Services means the support services provided by SonaSafe as part of the Services in accordance with the PSA;
(jj) Terms means these SonaSafe Terms and Conditions, as may be updated by SonaSafe from time to time;
(kk) Third Party Applications means third party hardware, software, or other accessories that may be required to facilitate the Client’s use of the SonaSafe Products;
(ll) Trial means the temporary, limited or pilot access to or use of the SonaSafe Products and/or Services for evaluation, testing or assessment purposes;
(mm) Trial Commencement Date means the date on which a Trial begins, being the date on which the SonaSafe Equipment is installed at the Site for Trial purposes;
(nn) Trial Term means the period of time that theTrial is active for the Client’s assessment of the SonaSafe Products and/orServices, commencing on the Trial Commencement Date and continuing until the end date specified in the Proposal or the date on which SonaSafe terminates the Trial by written notice to theClient; and
(oo) Workers means SonaSafe’s personnel, agents and subcontractors engaged in the performance of the Services.
3 INTERPRETATION
3.1 The following provisions shall apply to theseTerms and any Agreement:
(a) a reference to an Agreement or another instrument includes any variation or replacement of either of them;
(b) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;(c) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day; and
(d) If any obligation under an Agreement is required to be performed on a day other than a Business Day, that obligation is to be performed on the next Business Day.
4 PROPOSAL
4.1 SonaSafe will issue the Client with aProposal, including (where applicable) any Trial arrangements, including the anticipated Trial Commencement Date, the Trial Term and a Quote. Upon the Client’s acceptance of the Proposal, the Proposal will form a contract and will be governed by these Terms.
4.2 SonaSafe will deliver to, and make accessible for the Client, the SonaSafe Products and/or Services by the delivery date specified in the Proposal.
4.3 For the avoidance of doubt, where the Proposal includes a Trial, the parties’ rights and obligations during the Trial are governed solely by the Proposal and these Terms. The continued use of the SonaSafe Products following the Trial will be on the basis set out in clause
5 TRIAL
5.1 The Trial Term will be indicated on the Proposal. Any Trial is carried out for the Client’s limited use within its business for the purpose of evaluating, testing and assessing the SonaSafe Products and Services during the Trial Term. The Client acknowledges that theTrial is not a full commercial deployment and is provided on a temporary and evaluative basis only.
5.2 For the purposes of the Trial, the Client will purchase, and SonaSafe will arrange for SonaSafe Products to be installed at the Site on a temporary basis. The Client will give SonaSafe and its Workers access to the Site for the Trial installation. SonaSafe will issue an invoice to the Client for the Trial installation and the SonaSafe Products provided, and the Client shall pay the invoice by the 20th day of the month following the month in which it is issued.
5.3 SonaSafe grants the client a non-exclusive, non-transferable, revocable and royalty-free licence to use SonaSafe’s IP Rights solely for the purposes of the Trial. All of SonaSafe’s IP Rights remain the sole property of SonaSafe (or its licensors), and this licence will automatically terminate on expiry or termination of the Trial Term.
5.4 The Client must promptly return or delete all Trial materials on request or at the end of the Trial.
5.5 The Trial is provided “as is” and without any warranties, representations or guarantees. To the maximum extent permitted bylaw, SonaSafe excludes all liability arising from or in connection with theTrial.
5.6 If, at any time during the Trial Term, theClient notifies SonaSafe in writing that it does not wish to proceed:
(a) unless the parties agree otherwise, the SonaSafe Products will be returned to SonaSafe;
(b) the Client must allow SonaSafe and/or its contractors reasonable access to the Site to remove the SonaSafe Products;
(c) the Client must ensure the SonaSafe Products are returned in substantially the same condition as supplied;
(d) upon the SonaSafe Products being returned (or removed) to SonaSafe’s satisfaction, SonaSafe will refund to the Client the amounts paid for the hardware components of the SonaSafe Products, less any reasonable costs of return, removal, decommissioning, or damage; and
(e) for clarity, any fees paid for Services(including installation, training, configuration or support) are non-refundable.
5.7 The Client agrees that:
(a) risk in the SonaSafe Products passes to theClient on delivery and remains with the Client throughout the Trial Term until the SonaSafe Products are returned to SonaSafe to its nominated location or removed by SonaSafe; and
(b) the refund described in clause 1.6 is the Client’s sole and exclusive remedy in respect of termination of the Trial and the SonaSafe Products, and the Client is not entitled to any further claims, damages or compensation.
6 PRODUCTS AND SERVICES AGREEMENT
6.1 If the Client wishes to continue using the SonaSafe Products following the Trial, the specific terms on which the Client may continue using the SonaSafe Products and engage SonaSafe for the Services will be set out in the PSA.
6.2 These Terms apply to the PSA.
6.3 If there is any inconsistency between theseTerms and the specific terms of the PSA, those specific terms of the PSA will prevail.
7 TITLE AND RISK
7.1 Where the Client has entered into a PSA, theClient agrees that:
(a) risk in the SonaSafe Products passes to the Client on the date and at the time of delivery of the SonaSafe Products at the Site. The Client will be responsible for insuring the SonaSafe Products on delivery; and
(b) title to the SonaSafe Products passes to the Client on payment fort hose SonaSafe Products;
7.2 The parties agree that SonaSafe retains a SecurityInterest in the SonaSafe Products until full payment is received. The Client acknowledges that this clause creates a Security Interest for the purposes of the PPSA and agrees that SonaSafe may register, at the Client’s cost, a financing statement on the PPSR to protect its interest. The Client will do all things reasonably required by SonaSafe to perfect and maintain the Security Interest.
7.3 The Client must not change its name, company number or NZBN or other details required on the PPSR, without first notifying SonaSafe in writing.
7.4 The Client acknowledges and agrees to waive its right to receive any notice under the PPSA (including notice of a verification statement under section 145) unless the notice is required by the PPSA and cannot be excluded. To the fullest extent permitted by the PPSA, the parties agree to contract out of sections 114(1)(a), 116, 120(2), 121, 122,125, 126, 127, 129, 131, 133 and 134 of the PPSA.
8 SONASAFE'S OBLIGATIONS
8.1 SonaSafe will:
(a) perform the Services described in any Proposal and/or PSA with due skill, care and diligence, in accordance with these Terms and all applicable laws and industry standards;
(b) ensure that all personnel engaged in the performance of the services are suitably qualified, experienced and supervised;
(c) when attending the Site, comply with, and procure that its Workers comply with, all reasonable and notified Site rules, and theClient’s health and safety requirements and security procedures;(d) provide the Services in accordance with any applicable Service Level Indicators; and
(e) use reasonable endeavours to carry out the Services so as to avoid unnecessary disruption to the Client’s operations.
9 THE CLIENTS OBLIGATIONS
9.1 The Client will:
(a) give SonaSafe all necessary cooperation and assistance in connection with these Terms, including timely access to all information, Client Data, personnel, systems, and the Site as may reasonably be required by SonaSafe to enable it to perform the Services;
(b) fulfil all of the Client Responsibilities and in compliance with all applicable laws and regulations;
(c) ensure that each End User possesses reasonable level of relevant knowledge and experience to use the Services and the SonaSafe System effectively;
(d) procure that each End User, uses the SonaSafe Products and Services in accordance with the Documentation and these Terms;
(e) be solely responsible for the accuracy, quality, integrity, and legality of the Client Data, and the means by which the Client acquires the Client Data;
(f) use all reasonable efforts to prevent unauthorised access to or use of the SonaSafe Products, the Services and the SonaSafe Dashboard, and notify SonaSafe promptly of any unauthorised access or use;
(g) implement and maintain IT security measures that meet the Minimum Standards. The Minimum Standards may include, without limitation, antivirus protection, firewalls, password policies, encryption, access controls, and multi-factor authentication. The Client must ensure ongoing compliance with such standards as a condition of receiving theServices;
(h) where applicable, ensure that any parameters set by SonaSafe in respect of which the Fees are determined are not exceeded;
(i) ensure that each End User is either an employee or agent of the Client, that each End User is assigned with individual and unique access credentials, and that such access credentials are not shared between individuals. The Client shall be liable for any unauthorised use exceeding the permitted number of End Users and may be required to pay additional Fees for such use. A reduction in End Users shall not reduce or otherwise affect the Client’s obligations in respect of any Fees or other amounts payable under these Terms and the PSA, unless agreed in writing by the parties;(j) promptly disable any login account if SonaSafe discovers (through undertaking any monitoring and audits or otherwise) that any login details have been provided to any party that is not Client or an EndUser;
(k) not request, permit or authorise anyone other than SonaSafe or an entity that SonaSafe has approved in writing, to provide any services similar to the Services in connection with the SonaSafe Products;
(l) carry out all other responsibilities of the Client set out in these Terms in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, SonaSafe may adjust any agreed timetable or delivery schedule as reasonably necessary;
(m) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the SonaSafe Dashboard, and for all problems, conditions, delays, delivery failures and all other loss or damage caused by or relating to the Client’s network connections or telecommunications link; and
(n) be responsible for all acts and omissions of its End Users as if those acts and omissions were the Client’s. To the maximum extent permitted by law, the Client will indemnify SonaSafe against all costs, losses, damages, and expenses arising out of or in connection with each End Users’ use of the SonaSafe Products.
10 CLIENT RESPONSIBILITIES
10.1 In providing the Services, SonaSafe may require assistance from the Client and access to the Site. The Client will:
(a) carry out the Client Responsibilities to an adequate standard, and in a timely, competent, efficient, and professional manner, using appropriate care and skill;
(b) ensure that SonaSafe and its Workers have:
(i) reasonable access to the Client’s Site, network, vehicles and machines; and
(ii) reasonable access to all electrical connection points to any machine that is to be fitted to any components of the SonaSafeSystem, including ground, ignition, handbrake (if applicable), and reverse (if applicable), as required by SonaSafe;
(c) ensure, so far as reasonably practicable, the health and safety of the Workers attending the Client's Site for the purposes of providing the Services; and
(d) comply with any reasonable instructions specified by SonaSafe to facilitate its performance of the Services;
10.2 If SonaSafe fails to provide, or is delayed in providing, any Services and/or access to the SonaSafe System, due to:
(a) the Client’s failure to comply with clause 1.1; and/or
(b) any latent defect in any of the Services that is not the fault of SonaSafe, then:
(c) SonaSafe will not be liable for any failure or delay in providing the Services; and
(d) the parties will use reasonable endeavours to agree an extension of time to any timetable set out in the PSA.
10.3 The Client will provide at its cost, any specialist equipment such as an elevated work platform (EWP) if requested by SonaSafe.
11 THIRD PARTY APPLICATIONS
11.1 The Client acknowledges that certain Servicesand/or the SonaSafe System rely on or incorporate Third Party Applications.SonaSafe is the sub-licensor of the Third Party Applications and grants the Client a non-exclusive, non-transferable licence to use the Third PartyApplications solely for the Client’s internal business purposes and in accordance with these Terms and the applicable Third Party Applications licence agreement. The Client will obtain rights to use such Third Party Applications solely through the sub licence granted by SonaSafe under these Terms and not directly from the third party licensor. The Client agrees to comply with all applicable licence terms and conditions governing the use of such Third Party Applications.
11.2 All Services provided by SonaSafe in relation to the relevant Third Party Applications are strictly limited to the account and licence provisions granted by the applicable third party licensor. TheClient acknowledges that SonaSafe’s ability to deliver the Services is subject to, and constrained by, the scope, terms, and limitations of the third party licensor’s account and licence rights for such Software.
11.3 SonaSafe shall remain responsible for ensuring that the Third Party Applications remains fully licensed and available for theClient’s use under the terms of the applicable software licence agreement. TheClient shall immediately notify SonaSafe if it becomes aware of any issuesaffecting the Third Party Application’s availability or functionality.1.4 The Client agrees to promptly install, orallow SonaSafe to install, any updates, patches, or upgrades to Third PartyApplications as may be required by the applicable third party licensor or asreasonably requested by SonaSafe to ensure the continued functionality,compatibility, performance, or security of the Services. SonaSafe shall not beliable for any failure or degradation in the Services arising from the Client’sfailure to install such updates in a timely manner. 1.5 SonaSafe will provide reasonable assistance tothe Client in relation to the configuration or integration of Third PartyApplications that is necessary for the operation of the Services. However,SonaSafe does not guarantee compatibility or functionality of any Third PartyApplications and is not responsible for ongoing support unless otherwise statedas being included in the Services.1.6 The Client acknowledges that Third PartyApplications licensors may update, modify, or discontinue their products at anytime. SonaSafe shall not be liable for any impact such changes may have on theServices.1.7 SonaSafe makes no warranties orrepresentations regarding the performance, security, or availability of any ThirdParty Applications and shall not be liable for any loss or damage arising fromthe failure, malfunction, or discontinuation of such software.
12 HOW YOU CAN ACCESS YOUR PERSONAL INFORMATION
12.1 All individuals have a right to request accessto their Personal Information and to requestits correction. Please contact SonaSafe if you would like to access the Personal Information it holds about you. SonaSafe will generally provide youwith access to your Personal Information within a reasonable period (but being no more than 30 days after your request). There are some circumstances in which SonaSafe is not required to give you access to your Personal Information, such as where the information relates to anticipated legal proceedings or the request is frivolous or vexatious. If SonaSafe denies or restricts your access, SonaSafe will explain why in writing.
12.2 There is no charge forrequesting access to your Personal Information, but SonaSafe may require you tomeet its reasonable costs in providing you with access (such as photocopyingcosts or costs for time spent on collating large amounts of material). SonaSafe will respond to your requests to access Personal Information in a reasonable time (but being no more than 30 days after your request). If you are forwhatever reason not satisfied with the response or resolution of your concerns or complaint, you can contact the Office of the Privacy Commissioner on 0800803 909 or by emailing enquiries@privacy.org.nz.
13 GOOGLE ANALYTICS
13.1 SonaSafe use Google Analytics on its website. Google Analytics collects and processes data by usingthe website's cookies to analyse the use of the website including, how longusers spend on each webpage and collect other online data described above. Thisinformation is used mainly for the optimisation of the website to enhance theuser experience. The data collected by Google is transmitted to a server in theUnited States (or other countries outside of New Zealand) You can review howGoogle uses data by clicking on the following link: https://policies.google.com/technologies/partner-sites.
14 COOKIES AND SIMILAR TECHNOLOGIES
14.1 SonaSafe may use and collect data through cookies (including persistent cookies) and other similar technology (such as web beacons) on its website. You can opt out of its use of cookies.
14.2 Its website, email updates and other communications may, from time to time, contain links to andfrom the websites of others. The Personal Information you provide through these websites is not subject to this Privacy Policy and the treatment of your Personal Information by such websites is not its responsibility. If you follow a link to any other websites, please note that these websites have their own privacy policies which will set out how your information is collected and processed when visiting those sites.
15 CONTACT SONASAFE
15.1 If you have any questions about how SonaSafe uses, stores, discloses or otherwise manages your Personal Information or have any concerns about its compliance with the Privacy Act, please contact:
SonaSafe 20/20 Limited
Level 2, Unit 448 Enterprise Street
Birkenhead, Auckland
sales@sonasafe.co.nz
15.2 SonaSafe will respond toyour concerns as soon as reasonably practicable (and no more than 30 days afteryour request). If you are for whatever reason not satisfied with the response or resolution of your concerns or complaint, please contact the Office of the Privacy Commissioner.
