1.1 Parties

360 Commerce Limited, company number 7392576 (Supplier)
(Customer) as identified on the order

1.2 Description of the Service

To provision and provide access to use the 360 Commerce eCommerce Software as a Service (SaaS) platform plus any associated support, training and other services as agreed by 360 Commerce in writing.

The following terms shall have the following meaning: -

In this Contract unless the context otherwise requires:

a. words used in the singular only should include the plural where appropriate (and vice versa);
b. words denoting any gender shall include every gender; and references to persons shall include bodies corporate;
c. references to any clauses are to the clauses of this Contract and any headings are for convenience only;
d. References to any Act of Parliament shall be deemed to include any amendment replacement or re-enactment thereof for the timing being in force.

a. The Contract and its terms shall come into effect on the Commencement Date as defined in the Order.
b. The Minimum Period will be 24 calendar months from the Services Commencement Date.
c. The Contract shall roll over on each Calendar Year following the end of the Minimum Period. and shall continue in force until terminated by either party with the remainder of the Calendar Year as notice.
d. Such notice cannot be given before the end of the Minimum Period.

a. 360 Commerce agrees to arrange the provision of Services requested by the Client by way of an Order -

i. From the Commencement Date

ii. Services will be provided in accordance with the Order.

iii. This includes support from 8.30am to 5.30pm (NZT) Monday through Friday, excluding statutory holidays.

iv. Unless otherwise specified under a separate ‘360 Commerce SLA contract’, any ongoing support following the completion of order will be provided on an ad-hoc basis with no guaranteed response timeframes.

b. The Client accepts that the Online Systems cannot be provided fault free and interruptions may occasionally occur. If the Client becomes aware of any fault or breakdown in the operation of the Online Systems, it shall notify the 360 Commerce as soon as practicable. 360 Commerce undertakes to respond to any fault reported.

c. The Client further acknowledges that the quality of the Online Systems and Services are in certain respects dependent upon third party providers of computing services, data communication carriers, operators of local telecommunications infrastructure, other third parties and the Client’s own networks and devices; and the Supplier cannot be held responsible for third party services.

d. 360 Commerce will be the first and main point of contact on behalf of the Client in relation to all aspects of the provision of the Online Systems.

a. The Customer agrees to pay to 360 Commerce in accordance with any Order or these Terms: -

i. All Charges as agreed in any Order such as, and not limited to, initial website set ups, design services, support, monthly fees and development fees for new or changed functionality.
ii. The monthly fee is payable from the Services Commencement Date.
iii. The Client will make all payments not later than 20th of the month following or otherwise as stipulated in accordance with the payment terms agreed in the Order.
iv. Any change requests to Orders may result in additional charges. Additional functionality requirements that emerge during the implementation of an Order will be documented and priced by 360 Commerce. The Client will be informed of any additional costs and approval gained before any work on such additional functionality is undertaken.

b. Should delays occur in the completion of an Order that are attributable to lack of actions of the Customer and not in the control of 360 Commerce, 360 Commerce reserves the right to address the timeline and cost dependencies on a case-by-case basis and, if necessary, revise the program timing and inform the Customer of the increased Charges that will be incurred as a result.
c. The Charges are in New Zealand Dollars and are exclusive of GST or any other tax which may apply in relation to the provision of Services.
d. 360 Commerce reserves the right to vary charges as follows:

i. The monthly fee will be reviewed 3 months prior to the end of the Calendar and the Customer will be notified of any price increases for the following Calendar Year.

ii. The hourly charge may change with 1 months’ notice, unless otherwise specified under the separate ‘360 Commerce SLA’ contract.

a. The Customer will be provided with secure login and password details by 360 Commerce to access and use the 360 Commerce Online Systems as directed by 360 Commerce.
b. 360 Commerce undertakes to provide the Client with technical assistance in connection with the 360 Commerce Online Systems in accordance with clause 2.3
c. 360 Commerce reserves the right to modify the Online Systems at any time.
d. The Customer will not use the Online Systems otherwise than in accordance with 360 Commerce‘s instructions as may be notified in writing by 360 Commerce, instructions may include , but are not limited to the proper and secure use of passwords, user identification codes, and other operational matters.

a. Without prejudice to any other rights of 360 Commerce, (including the right to terminate) 360 Commerce, shall be entitled at any time to suspend the provision of  Services and/or to disconnect the Online Systems forthwith by written notice to the Customer: -

i. In circumstances where 360 Commerce, will be entitled to terminate the agreement due to non-payment of Charges or
ii. If the Customer commits a material or persistent breach of any provision of this Contract or any Order.
iii. In circumstances where the Services cannot be provided for regulatory or licensing reasons.
iv. If the Customer causes or may be a contributory cause of: material damage or infringement to any other 360 Commerce clients or Third party.

b. If any Services are suspended solely due to the fault of the Customer or its agents (other than for a reason set out in clause 2.7, 360 Commerce, will be entitled to charge the Customer for all reasonable costs and expenses necessarily and properly incurred subsequently in reconnecting the Customer to the Services.

a. Either party shall be entitled to terminate this contract by written notice to the other, following the end of the Minimum Period and in accordance with point 2.2
b. 360 Commerce shall be entitled to terminate this Contract forthwith by notice in writing to the other if: -

i. the Customer becomes the subject of a bankruptcy order or becomes insolvent, or
ii. (Being a company) goes into liquidation, or has a receiver appointed over any of its assets or

c. Either Party shall be entitled to terminate this Agreement forthwith by notice in writing to the other if: -

i. the other party commits a material or persistent breach of any provisions of this agreement including (without limitation) non-payment of Charges;

a. All content and data provided by the Customer remains its property.
b. All computer code, database design and other Intellectual Property owned by 360 Commerce remains the property of 360 Commerce Limited. The Customer must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
c. If the Customer commissions, pays for in whole or part for additional functionality, the resulting Intellectual Property and Source Code belongs solely to 360 Commerce and may be included in the 360 Commerce Online System to be used by other Customers.
d. The Customer agrees not to copy, modify or distribute any original 360 Commerce Source Code or Intellectual Property provided to the Customer in any way.
e. 360 Commerce warrants that the use of the Online System by the Customer as contemplated by this Contract and Order does not and will not infringe the Intellectual Property rights or any other rights of any third party. 360 Commerce shall indemnify the Client against all claims and expenses arising as a result of any breach by 360 Commerce of the aforesaid warranty.
f. The Customer warrants that the use of the 360 Commerce Online System as contemplated by this Contact and the Order does not and will not infringe the Intellectual Property rights of any third party. The Customer shall indemnify the 360 Commerce against all claims and expenses arising as a result of any breach by the Customer.

a. Neither party shall be liable to the other in respect of any matter arising out of or in connection with the order and these terms in contract tort or otherwise for any loss of profit and loss of business contacts or any indirect or consequential loss or damage whatsoever.

a. Either party shall not be deemed to be in default or liable to the other party for any delays in performance or from failure to perform or comply with the terms of the order or these terms due to any cause beyond its reasonable control including, without limitation, Acts of God, acts of government or competent regulatory authority, telecommunications network operator, war or national emergency, riots, or civil commotion, fire, explosion, flood, epidemic, lockouts, strikes or other industrial disputes.

a. All literature (in hard or soft form) issued by or on behalf of the 360 Commerce in connection with the order, these terms and the Services is provided for information only and is believed to be correct, but is not guaranteed and will not be binding on 360 Commerce; 360 Commerce will not be liable for any misstatements or omissions in relation to the same.

a. Notices under or in connection with this Contract or any Order shall, unless otherwise agreed, be in writing and may be sent by email or mail to the address of the party concerned from time to time.

a. This Contract (together with the Order) constitute the entire agreement between the parties with respect to its subject matter.
b. If any clause or provision of these terms are held invalid or unenforceable the validity or enforceability of the remaining provisions shall be unaffected.
c. The failure to exercise or delay in exercising any right or remedy under these terms will not constitute a waiver of that right or remedy, or a waiver or any other rights or remedies.

a. This Contract and the Order shall be governed by and construed in accordance with the laws of New Zealand.
b. Both parties agree to abide by the following Dispute mechanism prior to any legal action being filled.
c. The parties agree in the first instance to engage in discussion and negotiation to resolve any issue that arises between them on an amicable basis within a period of 14 days from the issue being raised by either party in writing.
d. If an agreement cannot be reached within 14 days then the parties agree to proceed with mediation with an independent mediator in accordance with the Mediation Rules of the New Zealand Dispute Resolution Centre.
e. If no agreement that finally resolves all the matters in dispute is reached within 30 Days form the date that the mediation is requested, either party may refer the dispute to arbitration for final and binding determination in accordance with the NZDRC Arbitration Rules.
f. If one party tries to take court action without first following the dispute resolution processes agreed in this point 2.15, then this constitutes a breach of contract. The other party can take legal action and pursue a ‘stay of proceeding’ as well as recovering any assoctied costs this may incur.

a. While using 360 Commerce services and until the end of any notice period the Customer may share confidential information with 360 Commerce, and the Customer may become aware of confidential information about 360 Commerce.

b. Both Parties agree to take reasonable steps to protect the other party’s confidential information from being accessed by unauthorised individuals. Both parties may share each other’s confidential information with legal or regulatory authorities if required to do so.

We respect your privacy and take data protection seriously. The following sets out how we process your own personal data and the data you enter about others into 360Commerce platform to ensure we meet our obligations to you under the New Zealand Privacy Act 2020. 

a. Collection of data: 360 Commerce may collect, hold, and update your personal information in order to conduct business, provide services, to verify your identity and to meet our legal obligations. Some examples on how personal information may be collected include via use of the services and facilities available through our platform, via forms, via emails.

b. General Use of data: When you enter or upload your data into our platform, we don’t own that data but you grant us a license to use, copy, transmit, store, analyze, and back up all data you submit to us through our services, including personal data of yourself and others, to: enable you to use our services; allow us to improve, develop and protect our services; create new services; communicate with you about the platform; send you information we think may be of interest to you; and disclose to third party service providers and partners to enable and support such purposes.

c. Information volunteered by you: this is information provided by you for a particular purpose, for example a support ticket request. This information will be used exclusively for the purpose for which you have provided it.

d. Business information: this is information given to us in the course of your business and ours such as to allow you customers to purchase your products on our platform. Such information is retained for business use only. We undertake to preserve the confidentiality of the information and of the terms of our relationship. It is not used for any other purpose.

e. Disclosure of information: 360 Commerce will only use personal information for the purpose it was collected and will not disclose personal information that it holds about you unless one of the exceptions in Principle 11 of the Information Privacy Principles (pursuant to section 22 of the New Zealand Privacy Act 2020) applies. For example, we believe that the use or disclosure is reasonably necessary to enforce any legal rights we may have, or if the disclosure of that information is required or permitted by law.

f. Storage and protection of information: 360 Commerce may store your personal information in hard copy or electronic form. This includes third party storage facilities and in cloud storage located inside or outside New Zealand. We will take reasonable steps to keep your personal information safe from loss, unauthorized activity, or other misuse.

g. Anonymized statistical data: When you use our services, we may create anonymized statistical data from your data and usage of our services, including through aggregation. Once anonymized, we may use it for our own purposes, such as to provide and improve our services, to develop new services or product offerings, to identify business trends, and for other uses we communicate to you.

h. Data breach notifications: Where there has been unauthorized access to personal data that you’ve entered into 360 Commerce, we’ll let you know and, where possible, give you information about what has happened. Depending on the nature of the unauthorized access, and the location of your affected contacts, you may be required to assess whether the unauthorized access must be reported to the contact and/or a relevant authority. We think you’re best placed to make this decision, because you’ll have the most knowledge about the personal data you have entered in your 360 Commerce Platform.