1. INTRODUCTION

1.1    By confirming acceptance to this Agreement through the checkbox on our Website or by accessing and using the Service, you acknowledge and agree:

(a) to be bound by this Agreement and (as applicable) HighLevel’s Terms ; and

(b) that you have the authority to act on behalf of any entity or individual who is using the Service.

1.2 From time to time, we may need to make changes to this Agreement. We will notify you of any changes to this Agreement by posting them on our Website (“ Updated Agreement ”). If you subsequently confirm acceptance to the Updated Agreement through the checkbox on our Website or access the Service, you will be bound by the Updated Agreement. If you do not agree with the terms of the Updated Agreement, then you may give us written notice of termination due to the change in terms.

2.      DEFINITIONS

2.1 In this Agreement, unless the context indicates otherwise: “Additional Terms” has the meaning given to it in clause 11.1;

“Agreement” means these terms and conditions of use (as amended by us from time to time);

“Authorised User” means any of the personnel, contractors, agents or representatives of the Subscriber that the Subscriber has authorised to access and use the Service on its behalf; “Confidential Information” means all written and oral information provided by either party to the other that is not public knowledge. It is acknowledged and agreed that all information regarding the Service and the Software is Confidential Information belonging to us; “Default Interest” means 15% interest charged at calculated from the due date to the date full payment is received;

“Dispute” has the meaning given to it in clause 19.1; “Effective Date” has the meaning given to it in clause 3.1;

“External Website” has the meaning given to it in clause 10.1; “Fee” means the total amount payable by you for the Platform and Services in accordance with clause 5; “Force Majeure Event” means any event or circumstance beyond our reasonable control and includes, but is not limited to any event or circumstance occasioned by, or in consequence of, any act of God, strikes, lockouts, other industrial disturbances, wars, terrorism, blockades, insurrections, riots, epidemics, pandemics or other infectious diseases, shortage of labour or civil disturbances, the order, direction, or requirement of any court, government, or local authority; “GST” means goods and services tax as defined in the Goods and Services Tax Act 1985;

“HighLevel” means HighLevel Inc., a Company incorporated in the United States of America (USA) with its principal office in Dallas, Texas, USA;

“HighLevel’s Terms” means HighLevel’s terms of service located in the link to our Website, as amended from time to time as published on HighLevel’s website; “Information Privacy Principles” means the information privacy principles set out in section 22 of the Privacy Act;

“Intellectual Property Rights” includes copyright, and all rights conferred under statute, common law or equity in relation to inventions (including patents), trade marks, designs, domain names, rights in databases, confidential information, trade secrets, tooling design, know-how, specifications, manufacturing processes and all other proprietary rights;

“Personal Information” as defined in section 2 of the Privacy Act;

“Platform” means the Member Suite Pro technology communication platform hosted by us for you pursuant to this Agreement, and which you (and your Authorised Users) are able to access;

“Privacy Act” means the Privacy Act 2020; “Subscriber Data” means any and all data (including any text or images and personal information) relating to you, your Authorised Users, that you upload, publish or transmit on or through the Platform; “Service” means the Platform (including, as applicable, configuration services, and access to and use of the Platform and Support Services). References to the Service in this Agreement will be deemed to include a reference to the Platform; “Software” means the Platform software (and any related software) that is owned (or licensed) by us and made available to you through the Service; “Subscriber” means the person(s) who registers to access and use the Service, and includes the entity for whom that person enters into this Agreement on behalf of; “Support Services” means the standard access and support services provided by (or on behalf of) us in connection with the Service; “we”, “us”, “our” means Executive Office Limited (NZCN 5933307), trading as Member Suite Pro;

“Website” means https://membersuitepro.com or such other site as notified by us from time to time; and

“you” and “your” means either the Subscriber and as the context permits, includes the Authorised Users.

3. TERM

3.1    This Agreement will commence on the date you first access the Service (“ Effective Date ”) and will remain in effect until terminated in accordance with this Agreement or (as applicable) HighLevel’s Terms (“ Term ”).

4.      SERVICES

4.1    Subject to your compliance with this Agreement, we grant to you a non-exclusive, non-transferable, and non-assignable right to access and use the Service during the Term for internal business purposes only and not for re-sale or commercial use.

4.2    We will provide you with Support Services as reasonably required (and requested by you). If additional support is required at any time, we may agree to provide additional services upon you agreeing to the additional cost of those services, as notified by us.

4.3    Terminal equipment, communications links and systems compatibility (and all costs associated with such items) are your sole responsibility. We accept no responsibility for any unavailability of, or defects in, the Platform or the Service to the extent such unavailability or defects arise out of or in connection with terminal equipment, communications links or systems compatibility.

5.FEE

5.1    In accessing and using the Service, you are required to pay us the relevant Fee at the relevant times and using the payment method as elected on our Website, or otherwise agreed in writing between us. Access to the Platform will only commence once payment is received.

5.2    We reserve the right to change the payments methods that we accept at any time.

5.3    We may charge a payment surcharge for applicable payment transactions equal to our reasonable cost of acceptance.

5.4    You agree to pay all sums due to us under this Agreement, free of any set off or counterclaim and without deduction or withholding.

5.5    The Fee is exclusive of GST unless specifically stated otherwise. You will pay all applicable GST in addition to the Fee.

5.6    Unless the Service is provided to you for a specific term with a set Fee for that term, we reserve the right to change the Fee from time to time by notice to you (which may be by way of posting on our Website). If you do not accept the change in Fee, then you may give us written notice of termination due to the change in Fee, and in that case the new Fee will not apply during the period up to termination. If you subsequently confirm acceptance to the updated Fee through the checkbox on our Website or access the Service after the change in Fee is notified, then the new Fee will apply.

5.7    We reserve the right to:

(a)     charge Default Interest; or

(b)     terminate or suspend your access to the Service,

if you fail to pay the Fee when it falls due. Default Interest is calculated from the date any sum is due to the date full payment is received. This is in addition to any other rights and remedies we may have.

5.8    5.8 You are responsible for all Fees incurred up to the date of termination in accordance with clause 12.

5.9    You will pay any expenses, disbursements, and legal costs that we incur enforcing any rights contained in these terms, including our reasonable solicitors’ fees or debt collection agency fees.

6. AUTHORISED USER

6.1You warrant that all information supplied by you via the Platform for the purposes of registration, creating an account, accessing and using the Services is true, correct and up to date.

6.2You are responsible for keeping all access information, including email addresses and log-on credentials, secret and secure. Without limiting the foregoing, you agree:

(a) not to disclose and to ensure that all Authorised Users do not disclose their username or log-on credentials to any other person;

(b)to ensure that none of your Authorised Users (or any other person under your control) attempts to gain unauthorised access to the Service, including but without limitation, through hacking or password mining;

(c) to inform us immediately of any known or suspected unauthorised access to and use of the Service; and

(d) you have sole responsibility for setting the administration privileges of each Authorised User and for monitoring whether those privileges are being adhered to.

6.3  You must notify each Authorised User of the terms of this Agreement and ensure that each of them strictly complies with this Agreement. You will be responsible (and liable) for any failure of any Authorised User to comply with the terms of this Agreement or HighLevel’s Terms (as if it were a breach by you of this Agreement).

7. RESTRICTION OF USE

7.1    With respect to your access to and use of the Service you acknowledge and agree that you will comply with this Agreement, the HighLevel Terms (as applicable), applicable laws, rules and regulations, together with all instructions, guidelines, procedures and policies notified by us from time to time.

7.2 You agree, that at all times, you will not:

(a) modify, translate, reverse engineer, decompile, disassemble or create derivative works of the Services (or any part of them) or otherwise attempt to: (i) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Services (or any part of it), including, without limitation, any such mechanism used to restrict or control the functionality of the Services; or (ii) derive the source code or the underlying ideas, algorithms, structure or organisation form of the Services (or any part of it); or

(b)distribute through the Platform any attachments, documents or files that: (i) infringe on any copyright, patent, trade secret, trademark, privacy or other third-party proprietary rights; (ii) violate any law, statute, ordinance or regulation; (iii) are defamatory, libellous or obscene; or (iv) contain viruses, malware, trojan horses, worms, time bombs, or similar harmful programming routines.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 Title and associated Intellectual Property Rights in the Subscriber Data remain your (or, as applicable, the relevant Authorised User or third party’s) property.

8.2 You acknowledge that:

(a)the Service, Platform, Website and Software are protected by copyright and other interests and are proprietary and confidential to us and HighLevel; and

(b)all rights, title and interest in and to the Service, Platform, Website and Software, including associated intellectual property rights, are and will remain vested in us and/or our HighLevel.

9. SUBSCRIBER DATA

9.1 You acknowledge that we are not responsible for, and have no liability in respect of, the Subscriber Data, loss or corruption of the Subscriber Data, or how you or any of your Authorised Users use the Subscriber Data or the Service. You are solely responsible for the Subscriber Data.

9.2 You agree to indemnify us against all liabilities, costs (including all costs incurred between solicitor and client), losses, claims, expenses and demands incurred by us which arise from or in connection with the Subscriber Data.

10.    THIRD PARTY WEBSITES AND MATERIAL

10.1 The Platform and the Service may contain links to other websites or resources over which we do not have control (“ External Website ”) or resources over which we do not have control. Such links do not constitute an endorsement by us for those External Websites. You acknowledge that the Platform is providing these links to you as a convenience, and you further agree that we are not responsible for the content of any External Websites. Your use of the External Websites is entirely at your own risk and is subject to the terms and conditions of use and privacy policies located on the External Websites.

11. SPECIFIC SERVICES AND TERMS AND CONDITIONS

11.1 You acknowledge that online transactions made available or offered by us through the Platform, from time to time, are subject to any specific additional terms and conditions agreed between you and us (“ Additional Terms ”). Access and use of the Platform will constitute acceptance of the Additional Terms.

12. TERMINATION AND SUSPENSION

12.1 This Agreement and your right to access and use the Services starts on the Effective Date and continues until:

(a) (if the Service is provided for a specified term) the end of the specified term;

(b) the date on which you advise us in writing that you do not agree to the terms of the Updated Agreement or any change in Fees (as applicable);

(c) (unless you have subscribed for a specified term) the date specified in any written notice (provided not less than 30 days’ notice has been given) given by either party to the other party, advising of the termination of the Service; or

(d) the Agreement is terminated (in accordance with the terms set out in this Agreement).

12.2 We may immediately by notice in writing to you, terminate this Agreement (or, in our discretion, suspend the provision of the Service) where:

(a)you breach any material term (including failing to pay any sum when it falls due) of this Agreement or HighLevel’s Terms (and that breach is not capable of being remedied or is not remedied within 5 working days of us notifying you of the breach);

(b)you breach, or attempt to breach, any of our security protocols or systems on the Website, or access (or attempt to access) an account that does not belong to you;

(c) required by law; or

(d) we consider it necessary or desirable to do so to protect our interests or reputation or the interests of the Service or any other person.

12.3 We may also suspend access to the Service at any time:

(a)for such time as is necessary to carry out maintenance determined by us to be necessary or desirable;

(b) to reduce or prevent interference with the Website or the Service;

(c if required to do so as a result of a direction by any Government, law enforcement or other authority; or

(d)   (d) in accordance with clause 5.7.

12.4 Upon termination of this Agreement (for any reason):

(a) you must immediately cease (and ensure all Authorised Users cease) to access the Service;

(b) all of your Subscriber Data, will be deleted from the Website;

(c)any termination will be without prejudice to any prior breaches by you (or any of your Authorised Users) of this Agreement;

(d)any provision of this Agreement intended to survive termination (or which is necessary for the interpretation or enforcement of this Agreement) will survive; and

(e)if termination occurs prior to the end of a specified term for provision of the Service, then all Fees for the remainder of the specified term (if not already paid) will become immediately due and payable, except to the extent we are reasonably able to minimise (in whole or part) the loss of Fees for the remaining term.

13. UPDATES AND NEW VERSIONS

13.1 We may provide updates to or new versions of the Platform (or any parts of it) and reserve the right to suspend use to the Platform to undertake such updates or install such new versions. You agree to comply with our instructions in relation to any update, new version or maintenance and we will not be held liable for any upgrade, update, maintenance or new version of the Software or Service (or any part of them).

14. WARRANTIES

14.1 We will use our commercially reasonable efforts to ensure that the Service is accessible by you and any Authorised Users in accordance with this Agreement.

14.2 We do not represent that the Service is error-free or will satisfy your requirements. Nor do we provide any warranties in respect of the accuracy, completeness, timeliness or supply of information via the Website. We cannot guarantee that the Website or the Service will be free from viruses, trojan horses, worms, time bombs, or similar harmful programming routines. Our obligation in clause 14.1 is in lieu of all other warranties in respect of the Website, the Service, or the Platform. To the maximum extent permitted under applicable law, all other warranties, condition and representations, whether express, implied or verbal, statutory or otherwise, and whether arising under this Agreement or otherwise, are excluded (including, without limitation, the implied warranties of merchantability, non-infringement and fitness for a particular purpose).

14.3 Both parties agree and acknowledge that the Services supplied by us and acquired by you, are supplied or acquired in trade:

(a) within the meaning of the Fair Trading Act 1986, so that sections 9, 12A, and 13 of the Fair Trading Act 1986 will not apply to the agreement between us, and that it is fair and reasonable to exclude their application; and

(b)within the meaning of the Consumer Guarantees Act 1993, so that the provisions of the Consumer Guarantees Act 1993 will not apply to the agreement between us, and that it is fair and reasonable to exclude their application.

15.LIABILITY AND INDEMNITY

15.1 To the extent that our liability is not otherwise limited or excluded, and to the maximum extent permitted by law, our aggregate liability to you whether in tort, contract, at law (including for a misrepresentation) or otherwise for any loss, damage or injury in relation to the Services is limited to the Fees actually paid by you within 3 months from the date the loss, damage or injury occurred.

15.2 Under no circumstances will we or HighLevel (or any of their directors, officers or employees) be liable for any loss or damage of any kind whatsoever arising from the supply of the Services by us to you, including direct or consequential loss and loss of profits, whether suffered or incurred by you or another person or entity and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from the Services provided by us to you.

15.3 You acknowledge and agree that we are simply facilitating your ability to assess your business needs more efficiently, and that we will have no liability to you or any Authorised User in connection with any action (or inaction, as the case may be) taken by an Authorised User as a result of its interaction with the Platform.

15.4 You will indemnify and hold us and HighLevel (and their directors, officers and employees), harmless from all claims, liabilities, damages, losses (including legal fees) and expenses, due to or arising out of your (or any of your personnel or Authorised Users) use of the Service, and/or any breach of any term of this Agreement by you or any of your Authorised Users.

16. ASSIGNMENT

16.1 You will not license, assign, subcontract, resell, share, pledge, rent or transfer any of your rights under this Agreement or any part of them without our prior written consent (which may be withheld in our absolute discretion). Any effective change in your management or control in your corporate entity will be deemed an assignment.

16.2 We may assign this Agreement at any time by notice in writing to you.

17. PRIVACY

17.1 We confirm that we will comply with the Privacy Act and the Information Privacy Principles (set out in the Privacy Act) with respect to any of your Personal Information that we hold.

17.2 You acknowledge and agree that we may collect, retain, and use information that is Personal Information about you and any Authorised User for the purposes of supplying the Services, assessing your credit worthiness, enforcing any rights under this Agreement, including any disclosure to debt collection agencies, or marketing any services we think might be of interest to you.

17.3 You have the right to request access to any Personal Information that we hold about you, and to request correction of it if you consider that the Personal Information is incorrect.

17.4 If you have any questions or concerns in relation to your privacy or would like to correct any information we hold about you, please email us at privacy@executiveoffice.co.nz .

18. CONFIDENTIALITY

18.1 Unless otherwise consented in writing by one party to the other, each party will maintain the confidentiality of all Confidential Information of the other obtained pursuant to this Agreement. The provisions of clause 18.1 do not apply to any information which is:

(a) already public knowledge;

(b) received from a third party who is in lawful receipt of the information and is able to disclose it to the recipient without restriction;

(c) required by law to be disclosed; or

(d) necessary for us to disclose in order to provide the Service.

19. DISPUTES

19.1 Where a dispute relating to this Agreement or the Service (“ Dispute ”) arises, the parties must negotiate in good faith in an attempt to resolve the Dispute amicably, prior to taking any other action (except urgent injunctive relief).

19.2 Where the Dispute cannot be resolved by way of good faith negotiations within 30 days (or such longer period agreed by you and us) of negotiations commencing, the parties are free to take any other action.

20. GENERAL

20.1 Any problems that occur whilst accessing the Website or the Service (or any other correspondence with us) should be notified in writing to us at your earliest convenience.

20.2 Any notices to be provided by us to you pursuant to this Agreement will be made by either posting such notice on the Website or emailing you at the email address you have supplied to us.

20.3 Where a Force Majeure Event occurs, we will not be liable for any delay or failure to fulfil our obligations under this Agreement.

20.4 This Agreement and the provision of the Service provided under this Agreement will be governed by New Zealand law. The parties submit to the exclusive jurisdiction of the New Zealand courts in respect of any disputes or claims arising out of or in connection with the Service.

20.5 Nothing express or implied in this Agreement will be construed as constituting either party as the partner, agent, employee, office or representative of, or as a joint venture with, the other party, and neither party will make any contrary representation to any other person.

20.6 If any of provision of this Agreement is determined to be illegal, invalid or otherwise unenforceable, then to that extent, it will be severed and deleted from these terms and the remaining terms will survive and continue to be binding and enforceable.

20.7 No delay, neglect, or forbearance on the part of either party in enforcing against the other party any term or condition of the Agreement will either be or be deemed to be a waiver or in any way prejudice any right of that party under the Agreement.

20.8 This Agreement constitutes the entire agreement between the parties with respect to the use of the Service and supersedes all prior or contemporaneous understandings regarding such subject matter.