Welcome to Ocerra, a cloud-based accounts payable automation software for touchless invoice processing.
1. Definitions and Interpretation
1.1 In this Agreement, unless the context requires otherwise:
Administration Access means the access provided to one administration user authorised by the Subscriber that allows the user to:
(a) add, remove or change other Authorised Users; and
(b) set the level of access that each Authorised User has to access and use the Subscription Services;
Application means any web application accessible via https://app.ocerra.com or iOS, Android or other mobile app made available by us that allows you to access the Subscription Services;
Authorised User means any employee, contractor, officer or agent of the Subscriber’s business who is authorised by the Subscriber to access and use the Subscription Services and Documentation;
Business Day means a day other than a Saturday, Sunday or public holiday in Auckland, New Zealand;
Consultancy Fees has the meaning set out in clause 6.1(b);
Consultancy Services means any training, implementation or consultancy services in respect of your use of the Subscription Services, as set out in a Statement of Work;
Confidential Information means any information relating to the business or affairs of a party including, without limitation,
(a) its designs, drawings, manufacturing know-how, object code, source code, planned modifications to hardware or software, planned enhancements to hardware or software, product knowledge, quality standards, research and development, unpublished specifications, technical information, pricing, manipulated data, business plans, business processes, methodologies, techniques, general know-how, costs and margins, customer lists, financial data, internal price information, market research, marketing plans, sales forecasts and trade secrets,
but does not include information which:
(b) can be established by written records to be already known to the recipient at the time of disclosure; or
(c) which is in or enters the public domain through no fault of the recipient.
Documentation means the documentation (if any) made available to you by us through the Subscription Services, which sets out a description of the Subscription Services and the user instructions for the Subscription Services;
Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;
Services mean Subscription Services, Support Services and Consulting Services;
Subscriber means the person that registers to use or receive the Subscription Services;
Subscription Fee means:
(a) the monthly subscription fee payable for your access and use of the relevant Subscription Services; and
(b) such other monthly fees for functionality, data volumes or anything else you are subscribed for,
as set out on the Ocerra Website, Application or other pricing documentation provided by us to you;
Subscription Services means the Ocerra software-as-a-service for businesses consisting of invoice processing, related smart workflows and reporting, and any other modules offered by us from time to time, accessible via the Application;
Support Services has the meaning set out in clause 4.1;
Ocerra Website means www.ocerra.com or any other URL address notified to you by us from time to time;
Third Party Provider has the meaning set out in clause 9.5(b);
Virus means any thing or device (including any software, code, file or program) which may: (a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or (c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
we, our and us refers to Ocerra Limited;
you and your refers to:
(a) the Subscriber; or
(b) where the context permits, the Authorised Users;
Your Data means the data inputted by you for the purpose of using the Subscription Services or facilitating your use of the Subscription Services, including, where applicable, Authorised Users’ data.
1.2 In this Agreement, unless the context requires otherwise:
(a) words importing one gender include the others;
(b) words importing the singular or plural number include the plural and singular number respectively;
(c) headings are inserted for the sake of convenience of reference only and do not affect the interpretation of this Agreement; and
(d) a person includes any individual, corporation, unincorporated association, government department or municipal authority.
2. Your right to use the Subscription Services
2.1 We grant you a non-exclusive, non-transferable right to:
(a) access and use the Subscription Services that you have subscribed to, and the relevant Documentation;
(b) download, install and use the Applications; and
(c) permit any Authorised User, permitted under the relevant Subscriptions Services, to use the Subscription Services and the Documentation (including to download, install and use the Applications) as set out in (a) and (b) above,
solely for the Subscriber’s own internal business purposes, all on the terms and conditions set out in this Agreement.
2.2 You will, and will ensure that your Authorised Users:
(a) comply with all applicable laws (including privacy and data protection laws in respect of the collection, use and disclosure of personal information that is included in Your Data) with respect to the use of the Subscription Service and your activities under this Agreement;
(b) keep secure and confidential logins and passwords for access to and use of the Subscription Services and Documentation;
(c) use all reasonable endeavours to prevent any unauthorised access to, or use of, the Subscription Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify us;
(d) allow us at any time to audit your or your Authorised Users’ use of the Subscription Services in order to establish whether the Subscription Services are being used in accordance with this Agreement;
(e) promptly disable any login account if we discover (through undertaking the audits referred to in clause 2.2(d)) that any login details have been provided to any third party; and
(f) on demand, pay to us an amount of any underpayment of Subscription Fees discovered by us through undertaking the audits referred to in clause 2.2(d).
(g) ensure that your network and systems comply with the relevant specifications as may be specified by us from time to time.
2.3 You may allow Authorised Users to access and use the Subscription Services (including to download, install and use the Applications) in accordance with clause 2.1. Without limiting any of your obligations under this Agreement:
(a) you will be responsible for determining the level of access that each Authorised User has to access and use the Subscription Services, and you acknowledge that we will not be responsible for your use of, inability to use, or incorrect use of, the Subscription Services arising out of or in connection with:
(i) any act or omission of the Authorised Users; or
(ii) you incorrectly granting a level of access to an Authorised User, which that Authorised User is not entitled to;
(b) you will notify Authorised Users, and procure Authorised Users to agree, that use of the Subscription Services is subject to the following terms and conditions:
(i) Authorised Users will comply with this Agreement;
(ii) we will have no liability to Authorised Users (whether direct or indirect) arising out of or in connection with their use of the Subscription Services;
(iii) such other terms and conditions notified to you in writing; and
(c) any act or omission of Authorised Users relating to the use of the Subscription Services will be treated as your act or omission. We may terminate any authority you have granted to any Authorised User if we consider that the relevant Authorised User is in breach of this Agreement or puts you in breach of this Agreement.
2.4 You will be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
2.5 You will not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Subscription Services and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Subscription Services;
(b) access all or any part of the Subscription Services and Documentation in order to build a product or service which competes with the Subscription Services and/or the Documentation;
(c) use the Subscription Services and/or Documentation to provide services to third parties (other than to Authorised Users in accordance with this Agreement);
(d) use the Subscription Services and/or Documentation for fraudulent or unlawful purposes;
(e) attempt to undermine the integrity or security of the Subscription Services or any third party’s systems, networks or resources used in the provision of the Subscription Services;
(f) attempt to gain unauthorised access to any information or materials other than those to which you have been given express permission to access as part of the Subscription Services;
(g) make the Subscription Services and/or Documentation available to any third party (other than to Authorised Users in accordance with this Agreement); or
(h) access, store, distribute or transmit any Viruses.
We may, without liability to you, disable your access to the Subscription Services if you are in breach of this clause 2.5.
2.6 If you are authorised by the Subscriber as an administrator of the Subscriber’s account with us, you will be provided with Administration Access.
2.7 You acknowledge that we regularly upgrade and update the Subscription Services and that the Subscription Services are continually evolving. Some of these changes will occur automatically, while others may require you to schedule and implement the changes. You will, where required, upgrade your software and/or devices in order to make efficient use of the Subscription Services. We will provide you with reasonable notice of any such changes.
3. Change in Subscription Services
3.1 You may add, remove or change the number of Authorised Users only if you have Administration Access. We will grant access to the Subscription Services and the Documentation to such additional or fewer Authorised Users in accordance with the provisions of this Agreement.
3.2 Subject to the terms of this agreement, you may:
(a) upgrade, downgrade or otherwise change Subscription Services;
(b) request configuration of or customisation of any part of the Subscription Services; and
(c) add, remove or change details in relation to the Subscriber’s account with us;
by contacting us at firstname.lastname@example.org
3.3 If you downgrade your account, no refunds will be paid in respect of any unused portion of any higher account offering. Downgrading your account may cause the loss of data, content, features or capacity of your account. If you choose to downgrade your account, we do not accept any liability for the resulting loss of data, content, features or capacity.
3.4 If you upgrade your account, the balance already paid for the rest of the term will be credited to your account. We will charge you for any net amount due as a result of the upgrade and your account renewal date will be reset to the next available billing day.
3.5 If your actual usage of our Subscription Services for any month exceeds any entitlements, limits or caps set for your account, we will notify you and you will be deemed to have upgraded your account for that month and will be charged the Subscription Fees applicable to your actual usage for that month as set out in clause 3.4, and at our sole discretion, an administration fee of $120 (plus GST). We will notify you if we consider that you need to upgrade your account plan.
4. Other Services
4.1 We may at our absolute discretion provide you with helpdesk and/or other services in relation to the Subscription Services (Support Services). We may at any time suspend, discontinue or change the Support Services without notice to you.
4.2 Where you require, we may agree to provide you with Consultancy Services, including customisation of the Application or any part of the Subscription Services (Customisation). The specific terms and pricing applicable to our provision of Consultancy Services will be agreed in a separate agreement between you and us (Statement of Work). Any Statement of Work will form part of and be governed by these Agreement. For the avoidance of doubt, all services relating to any Customisation, including upgrading, fixing, adjusting, and supporting your Customisation will be considered to be Consultancy Services.
5. Your Data
5.2 You acknowledge and agree that you will have sole responsibility for:
(a) ensuring that all of Your Data that we require to provide you with Subscription Services under this Agreement are provided to us;
(b) the legality, reliability, integrity, accuracy and quality of Your Data;
(c) reviewing and ensuring the accuracy and correctness of all outputs and results from your provision of Your Data to, and use of, the Subscription Services, including results and outputs generated and executed wholly or partly by automated means such as our spam filters, smart workflows and automatic approvals.
5.3 Each party will take appropriate technical, physical and organisational measures and safeguards against unauthorised or unlawful processing of Your Data or its accidental loss, destruction or damage and we will, as part of these measures, use reasonable endeavours to back-up Your Data. You acknowledge that if there is any loss or damage to Your Data, your sole and exclusive remedy will be for us to use reasonable commercial endeavours to restore such lost or damaged data from the latest back-up of Your Data maintained by us. We will not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party.
5.4 You acknowledge and agree that you are solely responsible for:
(a) ensuring compliance with and satisfaction of all applicable laws, including any record keeping requirements that you are subject to; and
(b) where required, obtaining any relevant authorisations and consents from relevant authorities or regulatory bodies in respect of our use, storage and processing of Your Data under this Agreement.,
5.5 You acknowledge and agree that we may use Your Data for the purpose of:
(a) performing our obligations under this Agreement;
(b) ensuring that you are complying with the terms and conditions of this Agreement;
(c) improving or enhancing the Subscription Services;
(d) performing data analysis, machine learning, or cross-entity analysis, all on an aggregated and/or anonymous basis,
provided that we comply with our confidentiality obligations under clause 8.
5.6 You warrant that you are authorised to provide Your Data to us so that we can provide the Subscription Services to you.
6. Charges and Payment
6.1 You will pay:
(a) the Subscription Fees to us in accordance with this clause 6, in respect of the Subscription Services; and
(b) any fees for Consultancy Services set out in a Statement of Work (Consultancy Fees).
6.2 In respect of Subscription Services, we will either:
(a) issue a valid tax invoice to you for the then current subscription period at the start of each month. Unless otherwise specified by us, payment of each invoice will be payable on the 20th of the month of the invoice. Payment details will be specified on the invoice; or
(b) if you have elected automatic payment by debit and credit card, you will be charged the Subscription Fees at the end of each monthly subscription period. We use the third party payment processor Stripe to process card payments.
6.3 In respect of Consultancy Services, we will issue a valid tax invoice to you for Consultancy Services provided in the period specified in that invoice. Unless otherwise specified by us, payment of each invoice will be payable by the 20th of the month of the invoice. Payment details will be specified on the invoice.
6.4 If you fail to pay any fees when due then (without prejudice to any of our other rights and remedies):
(a) we may, without liability to you disable access to, or suspend the provision of, all or part of the Services, and will be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and/or
(b) interest will accrue on such due amounts at an annual rate equal to 2% over the then current base overdraft rate of our bankers calculated from the due date until the date the amount is paid in full.
6.5 All amounts stated or referred to in this Agreement are, exclusive of GST (if any), and unless otherwise stated, specified in New Zealand dollars for New Zealand-based companies and in Australian dollars for Australian-based companies. If you are required by law to deduct or withhold taxes or charges from the amounts due to us under this Agreement, you will ensure that the amount due to us is increased so that the payment actually made to us equals the amount due to us as if no such taxes or charges had been imposed.
6.6 We may change the Subscription Fees at any time by giving you at least 30 days’ prior written notice.
7. Intellectual Property Rights
7.1 We and/or our licensors own all Intellectual Property Rights in the:
(a) Services (except Your Data); and
together with all Customisations, modifications, enhancements and other developments to the Services and Documentation (whether or not recommended or suggested by you). Except as expressly stated in this Agreement, this Agreement does not grant you any rights to, or in, the Intellectual Property Rights, or any other rights or licences in respect of the Services or the Documentation.
7.2 You own the Intellectual Property Rights in Your Data. You grant us a non-exclusive right to use Your Data to perform our obligations under this Agreement.
8.1 Except as expressly permitted in these Agreement, you and we both agree:
(a) not to use the other party’s Confidential Information for any purpose other than complying with these Agreement;
(b) to take reasonable steps to protect the other party’s Confidential Information from being accessed by unauthorised individuals; and
(c) not to divulge the other party’s Confidential Information to any persons (except to their employees or contractors (for whom that party will be responsible) and then only to those employees or contractors who need to know) without the other party’s prior written consent.
8.2 Each party will on demand and, in any event, on termination of this Agreement, deliver to the other party all Confidential Information and any other document supplied by or obtained from the other party.
8.3 We may publicly refer to or publicise your use of the Subscription Services to promote the Subscription Services, including:
(a) your business name;
(b) the Subscription Services that you or your Authorised Users use, and how the specific Subscription Services that you subscribe to have been used by you; and
(c) the quantitative and qualitative value our Subscription Services have added to your business.
8.4 This clause 8 will survive termination of this Agreement.
9. Warranties and Liability
9.1 Subject to clause 9.4, we warrant that:
(a) the Subscription Services will function substantially as described in the Documentation; and
(b) to the best of our knowledge and belief the Subscription Services do not infringe the copyright of any third party (IP Warranty) and we will indemnify you against any loss or damage that you incur arising out of a breach by us of the IP Warranty.
9.2 If the Subscription Services do not function substantially in accordance with the Documentation, we will, at our option, either:
(a) modify the Subscription Services to conform to the Documentation; or
(b) provide a workaround solution.
If neither of the options in paragraphs (a) or (b) is commercially feasible, either party may terminate this Agreement by giving written notice to the other party, in which case we will refund to you any portion of the Subscription Fees that you have paid to us in advance that relate to services that will no longer be provided to you as a result of termination. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the warranty set out in clause 9.1.
9.3 We will not be liable for a breach of the warranty in clause 9.1 to the extent of any non-conformance which is caused by use of the Subscription Services contrary to the Documentation and any other of our instructions, or modification or alteration of the Subscription Services by any party other than us or our duly authorised contractors or agents.
9.4 We do not warrant:
(a) that your use of the Subscription Services will be uninterrupted or error-free;
(b) that the Subscription Services, Documentation and/or the information obtained by you through the Subscription Services will
(i) always be available, either in its current form or at all; or
(ii) meet your requirements.
(c) that we will support, maintain or continue to offer the Subscription Services;
(d) the accuracy, correctness, reliability and completeness of any information, formulae, automated decisions, workflow features or calculation provided through the use of the Subscription Services (together referred to as Calculations). To the maximum extent permitted by law, we will not be liable for any form of loss or damage, arising out of or in connection with your reliance on and use of the Subscription Services. You agree that you will not rely solely on the Calculations and will carry out your own calculations (other than by using the Subscription Services) to verify the accuracy, correctness, reliability and completeness of the Calculations.
9.5 You acknowledge that:
(a) we are not your accountant, tax or other professional advisor and you are solely responsible for ensuring the accuracy and correctness of any output or result from your use of the Subscription Services and compliance with all applicable laws; and
(b) we may rely on the provision of services by third parties (including data centre, electricity, telecommunications and outsourcing providers) in order to provide the Subscription Services (Third Party Providers) and that the Subscription Services may be subject to limitations, delays and other problems inherent in the use of such services provided by Third Party Providers.
9.6 Except as expressly set out in this Agreement, the Services and the Documentation are provided on an “as is” basis and all representations, conditions or warranties (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) in respect of the Services and Documentation are expressly excluded.
9.7 You will indemnify us against all costs, losses, expenses and damages that we incur arising out of or in connection with any claims against us resulting from:
(a) your, and Authorised Users’, use of the Services, the Documentation and any Third Party Products; and
(b) any breach by you or your Authorised Users of this Agreement.
9.8 Except where we have liability to you under clause 9.1 (b) and unless stated otherwise in this Agreement, we will not be liable to you under the law of tort, contract or otherwise for any claim, damages or liability (collectively referred to as a Claim), including loss of profits, loss of revenue, loss of data, or any indirect, consequential or special loss or damage suffered or incurred by you, however caused, arising out of or in connection with this Agreement.
9.9 If, despite clause 9.8, we are found liable for any Claim, then to the maximum extent permitted by law, our liability arising out of all Claims under this Agreement will not exceed in aggregate an amount equal to the fees for the Services actually paid by you to us in the 3 months prior to time the liability arises.
10. Term and Termination
10.1 Subscription Services will automatically renew at the end of the subscription period you have elected. You may terminate this Agreement without cause by giving us a notice of non-renewal, in which case the Agreement will be terminated at the end of the then current subscription period.
10.2 We may terminate this Agreement without cause by giving you at least 60 days’ prior written notice.
10.3 Either party may terminate this Agreement if the other party:
(a) is in material breach of this Agreement which is not capable of remedy, or which is capable of remedy and has not been remedied within 14 days of receiving notice from the other party specifying the breach and requiring it to be remedied; or
(b) goes into liquidation or has a receiver or statutory manager appointed of any of its assets, becomes insolvent or makes any arrangement with creditors.
10.4 On termination of this Agreement for any reason:
(a) you will pay all Subscription Fees and Consultancy Fees up to and including the effective date of termination;
(b) all licences granted under this Agreement will immediately terminate and you must cease using the Subscription Services and the Documentation;
(c) each party will return, and make no further use of property, Documentation and other items (and all copies of them) belonging to the other party;
(d) we may delete any of Your Data in our possession unless we receive, no later than 10 days after the effective date of the termination, a written request for access to the most recent version of Your Data in our possession. We will use reasonable commercial endeavours to allow you to export Your Data in a format specified by us within 30 days of your receipt of such a written request, provided all Subscription Fees and other fees outstanding at and resulting from termination (whether or not due at the date of termination) have been paid. Following this 30 day period we may then delete any of Your Data in our possession]; and
(e) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, will not be affected or prejudiced.
10.5 If you terminate this Agreement under clause 10.1 or we terminate this Agreement under clause 10.3, you will:
(a) not be entitled to a refund of any Subscription Fees or Consultancy Fees pre-paid to us; and
(b) be liable to pay the Subscription Fees or Consultancy Fees on a pro-rata basis for each day up to and including the date of termination of this Agreement to the extent that you have not paid for the use of the Subscription Services on those days.
11.1 If a dispute arises out of or relates to this Agreement (Dispute), a party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause, except where the party seeks urgent interlocutory relief.
11.2 A party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute.
11.3 On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
11.4 If the Dispute is not resolved within 15 Business Days of the notice being given pursuant to clause 11.2 (or within such further period agreed in writing by the parties), either party may, by giving written notice to the other party, require the Dispute to be determined by the arbitration of a single arbitrator. The arbitrator will be appointed by the parties or, failing agreement within five Business Days of the notice requiring arbitration, by the President of the New Zealand Law Society on application of either party. The arbitration will be conducted as soon as possible and in accordance with the provisions of the Arbitration Act 1996.
12.1 The terms of this Agreement and all Statements of Work (if any) constitute the entire agreement of the parties about its subject matter and supersedes any previous understanding or agreements on that subject matter. To the extent there is any inconsistency between the terms of this Agreement and a Statement of Work, the following decreasing order of precedence will apply:
(a) the relevant terms of the Statement of Work to the extent those terms expressly state that they override specific terms of this Agreement; and
(b) the terms of this Agreement.
12.2 We may sub-contract any of our obligations under this Agreement without obtaining your prior written consent.
12.3 We will not be liable to you under this Agreement for any failure or delay in performing our obligations under this Agreement arising out of any event or circumstance beyond our reasonable control.
12.4 This Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.
12.5 If any part or a provision of this Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement will continue to operate.
12.6 A provision or a right under this Agreement may not be waived except in writing signed by the party granting the waiver.
12.7 A party may exercise a right, power or remedy under this Agreement at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party under this Agreement does not prevent a further exercise of that or of any other right, power or remedy.
12.8 This Agreement may be varied by us at any time upon 30 days’ written notice to you of such changes, including by email or posting of modified terms on the Ocerra Website and/or the Application (Variations). You will ensure that you have read, understood and agreed to the most recent terms posted on the Ocerra Website, the Application or as otherwise notified to you. If you do not agree with any Variations, you may terminate this Agreement by giving us written notice before the Variations take effect.
12.9 You will not assign, transfer or otherwise deal with this Agreement or any of your rights or obligations under this Agreement, whether in whole or in part, without our prior written consent.
12.10 Any notice you send must be sent to email@example.com unless otherwise stated in this Agreement. Any notice we send will be sent to the email address you provided when you subscribed for the Subscription Services. A notice or communication in relation to this Agreement will be deemed to be received on the Business Day on which the email is successfully delivered.
12.11 This Agreement will be governed by and construed in accordance with the laws of New Zealand. If you wish to bring any claim or other action against us arising out of or in connection with this Agreement then you must bring that claim or other action against us in New Zealand.