End User Licence Agreement

Revision: 2

Last updated: 10 September 2026

IMPORTANT: PLEASE READ THIS LICENCE CAREFULLY BEFORE INSTALLING, ACCESSING, OR USING THE SOFTWARE.

WARNING: By installing, copying, accessing, or otherwise using the Software, you agree that this End User Licence Agreement ("EULA" or "Agreement") is a legally binding and valid contract and agree to be bound by it. You agree to abide by the intellectual property laws and all the terms and conditions of this Agreement.

Unless you have a separate licence agreement signed by GWAITH DEVELOPMENT LIMITED, your use of the Software indicates your acceptance of this licence agreement and warranty.

If you do not agree to be bound by this Agreement, do not install, access, or use the Software and, if applicable, promptly contact your Reseller to arrange for its removal and any applicable refund.

This Agreement applies from the Effective Date defined in clause 1.12.

1. Definitions

In this Agreement, unless the context requires otherwise:

1.1 "Gwaith Software" or "the Software" means the software developed and provided by the Licensor and the entirety of its associated ecosystem, including but not limited to:

  1. the Gwaith API (also known as the "Boost API" and "Boost Management API") and all server-side components through which the applications described below communicate;
  2. desktop applications provided by the Licensor;
  3. web-based portals, interfaces, and dashboards provided by the Licensor (such as organisation management portals, document processing portals, and any other web-based administration or operational interfaces);
  4. progressive web applications (PWAs), static web applications (SWAs), and mobile applications provided by the Licensor;
  5. all associated files, libraries, modules, and documentation provided by the Licensor;
  6. any additional web-based or client-side components that interface with the Gwaith API, as released by the Licensor; and
  7. any Upgrades, Updates, or Fixes to any of the foregoing provided under this Agreement.

References to the Software in this Agreement apply equally to all of its components unless a provision expressly states otherwise.

1.2 "Licensor" or "Gwaith" or "we" or "us" or "our" means GWAITH DEVELOPMENT LIMITED, a company duly registered in New Zealand, NZBN 9429053840806, whose principal place of business is Mosgiel, New Zealand.

1.3 "Licensee" or "you" or "your" means the individual, business entity, or organisation that has acquired a licence to use the Software and has agreed to be bound by this Agreement.

1.4 "Reseller" means an entity authorised by the Licensor to distribute, license, and support the Software, and through which the Licensee has acquired its licence to use the Software. This currently includes Camu Solutions Limited and RFMS Australasia Limited.

1.5 "Third-Party System" means any third-party software product, platform, database, or service with which the Software is designed to interface, including Measure Mobile, Measure Desktop, the RFMS ERP system, Xero, and MYOB. A Third-Party System is not a product of the Licensor and is subject to its own separate terms and conditions.

1.6 "RFMS Database" means a single instance of the database associated with the RFMS ERP system, a third-party software product developed by RFMS Incorporated (now owned by Cyncly and a member of the Cyncly group of companies). The RFMS ERP system and the RFMS Database are not products of the Licensor and are subject to their own separate terms and conditions.

1.7 "API Key" means the unique key that connects a licence to a specific instance of a Third-Party System, such as a Xero organisation, enabling the Software to interface with that system for that instance. The API Key may be issued by the operator of the Third-Party System or by the Licensor, depending on the configuration.

1.8 "Server" means any computer, virtual machine, or hosted environment owned, leased, or operated by or on behalf of the Licensee on which the Software and/or a Third-Party System is installed or accessed.

1.9 "Workstation" means any desktop computer, laptop, terminal, tablet, mobile phone, or other end-user device from which an authorised user accesses the Software.

1.10 "Gwaith API" means the application programming interface provided by the Licensor through which components of the Software communicate with the Licensor's servers for the purposes of authentication, licensing, feature allocation, and the provision of services. The Gwaith API also contains the business logic for certain application functions. In some contexts, you may see the Gwaith API described as the "Boost API" or "Boost Management API", which are all the same software.

1.11 "RFMS API" means the application programming interface provided by Cyncly through which the Software interfaces with the RFMS ERP system and an RFMS Database. The RFMS API is a third-party service and is not owned, operated, or controlled by the Licensor.

1.12 "Effective Date" means the date on which the Licensee first installs, accesses, or otherwise uses the Software, or accepts this Agreement, whichever occurs first.

1.13 "Upgrade" means a material amendment to the Software which contains new features and/or major improvements, such as additional reports or new functional modules.

1.14 "Update" means a minor amendment to the Software which may contain new features or minor improvements to existing functionality.

1.15 "Fix" means a minor amendment to the Software intended to remove bugs or correct defects which impair the Software's functionality.

2. Third-party software and services

2.1 Some of the Software is designed to interface with Third-Party Systems, including the RFMS ERP system, Measure Desktop and Measure Mobile quantifying software, and the Xero and MYOB accounting products. Each Third-Party System listed below, together with its application programming interface and its database schema, is developed, owned, and maintained by the party identified against it, is the property of that party, and is subject to that party's own separate licence terms, conditions, and policies.

Third-Party Systems with which the Software interfaces, and the party that owns each:
Third-Party System Owner
RFMS Core (the RFMS ERP system), the RFMS database schema, the RFMS API, Measure Desktop, Measure Mobile RFMS Incorporated, a member of the Cyncly group of companies
Xero, the Xero API Xero Limited
MYOB, MYOB Business, MYOB AccountRight, the MYOB API MYOB NZ Ltd or MYOB Australia Pty Ltd

Nothing in this Agreement grants the Licensee any right, title, or interest in any Third-Party System. This clause applies equally to any other Third-Party System with which the Software interfaces, whether or not it is named above.

2.2 Gwaith Development Limited is an independent company. It is not a subsidiary, division, or affiliate of, and is not endorsed by, RFMS Incorporated, Cyncly (Consilio Midco Limited), Xero Limited, MYOB NZ Ltd, MYOB Australia Pty Ltd, or any of their affiliated companies. Where the Software integrates with a Third-Party System, it does so through that party's application programming interface. In the case of Xero and MYOB, the Licensor holds a developer agreement with the operator and is subject to the requirements of that operator's developer program. In the case of the RFMS ERP system, access to the RFMS API is administered by the Reseller, and the Software also performs read-only queries directly against the Licensee's own RFMS Database for certain reporting functions where the RFMS API does not expose the data required. Nothing in either arrangement is to be read as a partnership, endorsement, or joint venture. All product names, brand names, and trademarks referred to in this Agreement or in the Software are the property of their respective owners and are used only to identify the systems concerned. RFMS Australasia Limited, a reseller partner of Gwaith Development Limited, is a separate company from RFMS Incorporated and is not a member of the Cyncly group of companies.

2.3 The Licensee acknowledges that:

  1. A valid licence for each Third-Party System with which the Licensee uses the Software, obtained separately from the operator of that system or its authorised distributor, together with access to the relevant account or database, is a prerequisite for the use of Software features that interface with that system;
  2. Obtaining and maintaining each such licence, and any other authorisation required for the Licensee's use of a Third-Party System, is the Licensee's responsibility and is separate from this Agreement;
  3. The Licensor has no control over and assumes no responsibility for the availability, performance, security, or functionality of any Third-Party System or its application programming interface;
  4. Any changes, updates, discontinuations, or failures of a Third-Party System, its application programming interface, or its database schema by the operator of that system are outside the control of the Licensor, and the Licensor shall not be liable for any loss or damage arising from such changes;
  5. Where the Software performs read-only queries directly against an RFMS Database, it does so against a database instance that the Licensee owns or controls. During installation or configuration, the Software creates a SQL login with read-only access to that RFMS Database, using administrator credentials supplied by the Licensee at that time, which the Software does not retain. The Software's direct access to the RFMS Database is therefore constrained to reading at the database permission level. The Software does not create, modify, or delete any RFMS record directly; all additions, changes, and deletions the Software makes to RFMS data are made through the RFMS API.

2.4 Subprocessors engaged by the Licensor. Separately from the Third-Party Systems addressed in clauses 2.1 to 2.3, which the Licensee licenses independently from their operators, the Licensor engages its own subprocessors to provide the Software, including cloud hosting, email delivery, and artificial intelligence services. Those subprocessors are engaged by the Licensor and not by the Licensee, and clauses 2.1 to 2.3 do not apply to them. Subject to the limitations set out in Section 11 and to clause 10.5, the Licensor remains responsible for the acts and omissions of its subprocessors in their provision of the Software to the same extent as if those acts and omissions were the Licensor's own. Its cloud hosting, email delivery, and artificial intelligence subprocessors, and the purpose for which each is engaged, are listed in section 7 of the Licensor's privacy policy at gwaith.co.nz/privacy.

2.5 Third-party access outside a direct agreement. Certain features of the Software depend on access to a Third-Party System that is enabled or administered at the discretion of the operator of that system, whether directly or through the Reseller, and that is not held under an agreement between the Licensor and that operator. This includes functionality that does not form part of the system's standard published interface. Access of that kind is not within the Licensor's control. The Licensee acknowledges that:

  1. the operator of a Third-Party System may withdraw, restrict, or decline to enable that access or functionality at any time, for the Licensee or generally, and without notice to the Licensor or to the Licensee;
  2. if that occurs, features of the Software that depend on the withdrawn access or functionality may become limited or cease to operate, and the Licensor may be unable to provide an equivalent capability by other means;
  3. such an event is not a defect in the Software, is not a failure by the Licensor to supply the Software, and is not a breach of this Agreement by the Licensor;
  4. the Licensor gives no warranty and makes no representation that any such access or functionality is or will remain available; and
  5. any question of fees, credits, or refunds arising from such an event is a matter under the Licensee's agreement with its Reseller, in accordance with clause 4.4.

3. Licence grant

3.1 Grant. Subject to the terms of this Agreement, GWAITH DEVELOPMENT LIMITED grants to the Licensee a limited, non-exclusive, non-assignable, non-transferable licence, without the right to sublicense, to use the Software in accordance with this Agreement and any other written agreement with the Licensor. This licence is not a sale. The Licensor does not transfer title or ownership of the Software to the Licensee.

3.2 Permitted use. The Licensee may use the Software for the purpose of:

  1. Installing and running the Software on the Licensee's Servers and Workstations;
  2. Allowing the Licensee's employees and authorised third parties to run the Software on the Licensee's Servers and Workstations;
  3. Publishing or distributing output generated by the Software (such as exported spreadsheets or reports) to the Licensee and/or authorised third parties (such as an accountant or auditor).

3.3 Duration. This licence is granted for as long as the Licensee remains in compliance with all terms of this Agreement, including payment of any applicable fees to its Reseller. Where the Licensee has entered into a subscription arrangement, the licence remains in effect only while the subscription is current and all fees are paid.

3.4 Non-assignable and non-transferable. The Licensee may not assign, transfer, sublicense, or delegate any rights or obligations under this licence to any third party without the prior written consent of the Licensor, which shall not be unreasonably withheld or delayed. Consent is not required where the Licensee assigns this Agreement in its entirety to a successor of all or substantially all of its business or assets, provided that the Licensee gives the Licensor written notice within twenty (20) working days of the assignment and the successor agrees in writing to be bound by this Agreement.

3.5 Commercial use. The Software may be used in a commercial environment. However, the resale, redistribution, or commercial exploitation of the Software itself, and/or the sale of any report, document, or other output generated via the Software as a standalone product or service, is strictly prohibited.

3.6 Installation consent. By proceeding with the installation of the Software, the individual performing the installation represents and warrants that they are duly authorised to accept this Agreement on behalf of the Licensee. The installer's acceptance of this Agreement during the installation process binds the Licensee and all of its authorised users to the terms of this Agreement. If the individual performing the installation is not authorised to accept these terms on behalf of the Licensee, they must not proceed with the installation.

3.7 Acceptance by access or use. Several components of the Software are not installed by the Licensee. By accessing or using any web-based portal, interface, or dashboard, any progressive web application, any mobile application, or the Gwaith API, the individual doing so accepts this Agreement on behalf of the Licensee, whether or not any component of the Software has been installed and whether or not the Licensee was provisioned by a Reseller. The individual accessing or using those components on behalf of an organisation represents and warrants that they are duly authorised to accept this Agreement on behalf of that organisation, and that acceptance binds the Licensee and all of its authorised users to the terms of this Agreement. If the individual is not authorised to accept these terms on behalf of the Licensee, they must not access or use those components.

4. The reseller relationship

4.1 Commercial relationship. The Software is distributed through Resellers. The Licensee's commercial relationship, including fees, payment terms, invoicing, provisioning, and first-line support, is with its Reseller and is governed by the agreement between the Licensee and that Reseller.

4.2 Scope of this Agreement. This Agreement governs the licence to use the Software and is between the Licensee and GWAITH DEVELOPMENT LIMITED. It is not an agreement with the Reseller, and the Reseller is not a party to it.

4.3 Conflict. Where an agreement between the Licensee and its Reseller conflicts with this Agreement on the scope of the licence, intellectual property, or permitted use of the Software, this Agreement prevails to the extent of the conflict. This clause governs the Licensee's licence to use the Software only. It does not affect any right that a Reseller holds under its separate agreement with the Licensor, including any right to distribute, sublicense, or support the Software, and clauses 3.5 and 5.3 are not to be read as limiting those rights.

4.4 No direct invoicing. The Licensor does not invoice the Licensee directly for the Software. The Licensor is not responsible for the fees, payment terms, billing arrangements, or refunds agreed between the Licensee and its Reseller, and any question about those matters must be directed to the Reseller.

4.5 Suspension for non-payment. Where fees payable to a Reseller in respect of the Software have not been paid, the Licensee's licence, or any licence key or API Key issued under it, may be suspended. A suspension of that kind may be applied by the Reseller directly, using the licensing portal that the Licensor makes available to Resellers for that purpose, or by the Licensor upon written notice from the Reseller. The following apply:

  1. Not less than seven (7) days' written notice of the intended suspension, stating the reason for it and the date on which it will take effect, is to be given to the Licensee before the suspension takes effect. The Licensor will give that notice where it applies the suspension itself, and requires each Reseller to give it as a condition of access to the licensing portal. Within that period the Licensee may pay the outstanding amount to its Reseller, or notify the Licensor and the Reseller that it disputes the amount;
  2. Suspension is limited to what is reasonably necessary to address the non-payment. The Licensor will not terminate this Agreement for non-payment otherwise than in accordance with clause 9.2;
  3. Where the Licensor applied the suspension, it will restore access promptly, and in any event within two (2) working days, upon written notice from the Reseller that the amount has been paid or the matter otherwise resolved, or upon the Licensee providing the Licensor with reasonable evidence of payment. Where the Reseller applied the suspension using the licensing portal, the Reseller may restore access directly;
  4. During any period of suspension the Licensee retains the right to export its own data. A request for that export should be made to the Reseller in the first instance. Where the Reseller has not actioned the request within five (5) working days, the Licensee may request the export from the Licensor directly, and clause 9.5(c) applies to that request.

Whether fees are owing is a question arising under the agreement between the Licensee and its Reseller, to which the Licensor is not a party. The Licensor is not responsible for determining whether an amount a Reseller states to be owing is correct, and any dispute about the underlying fees is a matter between the Licensee and its Reseller. Nothing in this clause limits or affects any right or remedy the Licensee has against its Reseller, or any right the Licensee has in respect of a suspension applied otherwise than in accordance with this clause.

4.6 Survival of financial obligations. All financial obligations incurred by the Licensee in respect of the Software, whether owed to a Reseller or to the Licensor, shall survive the expiration or termination of this Agreement.

4.7 No Reseller authority. No Reseller is authorised to make any representation, warranty, or commitment on behalf of the Licensor, or to vary, waive, or extend any term of this Agreement.

5. Use restrictions

5.1 The Licensee shall use the Software in compliance with all applicable laws and regulations in the jurisdictions where it operates and shall not use the Software for any unlawful purpose.

5.2 Licensing scope. Each licence is granted at the organisation level and entitles the Licensee to access the Software in connection with the Licensee's organisation as configured by the Licensor.

  1. Third-Party System integration. Where the Software interfaces with a Third-Party System, it does so through a unique API Key that is specific to a single instance of that system, such as a single RFMS Database. Each instance to which the Software is connected requires its own API Key and a corresponding licence, unless otherwise agreed in writing between the Licensor and the Licensee.
  2. Multiple instances. If the Licensee operates or is affiliated with multiple instances of a Third-Party System (whether due to separate legal entities, archival databases, or otherwise), a separate licence must be granted for each instance unless otherwise agreed in writing between the Licensor and the Licensee.
  3. Multi-instance user access. Where a user requires access to Software functionality across multiple licensed instances, a separate user account must be created for each instance. Each such user account is subject to the terms of this Agreement and the applicable licence for that instance.

5.3 Prohibited distribution. The assignment, sublicence, networking, sale, or distribution of copies of the Software is strictly forbidden without the prior written consent of the Licensor. It is a violation of this Agreement to assign, sell, share, loan, rent, lease, borrow, network, or transfer the use of the Software. If any person other than an authorised user uses a copy of the Software registered in the name of the Licensee, regardless of whether it is at the same time or different times, then this Agreement is being violated and the Licensee bears responsibility for that violation.

6. Intellectual property and reverse engineering

6.1 Ownership. The Software contains copyrighted material, trade secrets, and other proprietary material. GWAITH DEVELOPMENT LIMITED retains sole and exclusive ownership of all rights, title, and interest in and to the Software and all intellectual property rights relating thereto, including but not limited to copyrights, patents, trademarks, trade secrets, and any derivative works. Copyright law and international copyright treaty provisions protect all parts of the Software. No program, code, part, image, text, or other component may be copied or used in any way by the Licensee except as expressly permitted within the bounds of this Agreement.

6.2 Reverse engineering prohibition. The Licensee shall not, and shall not attempt to, directly or indirectly:

  1. modify, adapt, alter, translate, or create derivative works based upon the Software in whole or in part;
  2. reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code, object code, algorithms, data structures, or underlying ideas of the Software;
  3. extract, reconstruct, or deduce the SQL code, database queries, stored procedures, or any other database logic employed by the Software;
  4. intercept, monitor, log, or analyse network traffic, API calls, or communications between the Software and any server or service for the purpose of extracting, replicating, or reverse engineering business logic, data structures, or proprietary methods;
  5. circumvent, disable, or interfere with any protection, licensing, authentication, or security mechanism within the Software;
  6. use any automated tools, scripts, or processes to extract data, functionality, or logic from the Software beyond what is provided through its intended user interface and outputs;
  7. reconstruct or derive the Software's business logic through systematic observation, testing, or analysis of its inputs and outputs.

6.3 Trademarks. The Licensor's name, logo, and graphics that represent the Software shall not be used by the Licensee in any way without the prior written consent of the Licensor, except as reasonably necessary to identify the Licensee's use of the Software in the ordinary course of business.

6.4 All rights not expressly granted to the Licensee in this Agreement are reserved by GWAITH DEVELOPMENT LIMITED.

7. Data collection and privacy

7.1 API and data processing. The Software communicates with servers operated by or on behalf of the Licensor via the Gwaith API for the purposes of:

  1. Authentication and user account management;
  2. Licence validation and feature allocation;
  3. Providing services requested by the Licensee through the Software, which may require the temporary processing and transmission of the Licensee's business data (such as inventory data for warehouse stocktake functions, or reporting data for report generation functions).

7.2 Data storage and retention. This clause describes data held by the Licensor in deployments the Licensor hosts; where the Software is deployed on infrastructure that the Licensee owns or controls, retention of data on that infrastructure is the Licensee's responsibility. The Licensor stores the following categories of data:

  1. Organisation information: company name, contact details (phone, email, address), and licensing data. This data is maintained for the duration of the business relationship and as required by law.
  2. User account information: name, user identifier (which may or may not be a valid email address), and assigned role. This data is maintained for the duration of the user's account.
  3. Transient service data: business data transmitted to or processed by the Gwaith API in the course of providing services is retained only for as long as necessary to deliver the requested service and is then deleted, subject to the diagnostic log retention described in paragraph (d), and except as provided in Section 8 in respect of data associated with artificial intelligence features.
  4. Diagnostic logs: API request and response traffic, including the content of requests and responses, is logged for the purposes of debugging and support. These detailed logs are deleted on a rolling 30-day cycle. Metadata logs, such as session records and failed sign-in attempts, are retained for 90 days. No authentication credentials, passwords, or session tokens are captured in these logs.

7.3 Security. The Licensor employs industry-standard security measures to protect data transmitted to and stored on its servers, including SSL/TLS encryption, security certificates, and organisational access controls. All API access is scoped to the Licensee's organisation, such that authorised users may only access data belonging to their own organisation.

7.4 Infrastructure. Where the Software is deployed in an environment hosted by the Licensor, Licensee data is processed and stored using cloud resources provided by Microsoft Azure. The Licensor selects its infrastructure providers with regard to their security certifications and compliance standards. Where the Software is deployed on infrastructure that the Licensee owns or controls, whether self-hosted or on-premises, the Licensee is responsible for that infrastructure, for its security, and for the data held on it.

7.5 Privacy policy. The collection, use, disclosure, and protection of personal information is further governed by the Licensor's privacy policy, available at gwaith.co.nz/privacy. By using the Software, the Licensee acknowledges and agrees to the collection and processing of data as described in this Section 7 and in that privacy policy.

7.6 The Licensee is responsible for ensuring that it has obtained all necessary consents from its employees, contractors, and other individuals whose personal information may be transmitted to the Licensor through the Licensee's use of the Software.

7.7 Third-party data processing. Where the Software interfaces with a Third-Party System, data may be transmitted to and processed by systems operated by the operator of that system. Such data transmission is subject to the privacy policies and terms of service of that operator, which are separate from those of the Licensor. The Licensor is not responsible for how the operator of a Third-Party System collects, uses, stores, or processes data transmitted to it.

8. Artificial intelligence features

8.1 Certain features of the Software use artificial intelligence services. Those services are operated within Microsoft Azure, using resources provisioned to and controlled by the Licensor.

8.2 Output produced by those features is generated by automated systems. It may be incomplete, inaccurate, or incorrect, and it may vary between requests made on the same data.

8.3 The Licensee is responsible for reviewing and verifying all output generated by an artificial intelligence feature before relying on it or acting on it. Such output is not professional advice, and the Licensee must not treat it as accounting, financial, legal, tax, or other professional advice. The Licensee remains responsible for its own business decisions and for the accuracy of its own records.

8.4 The Licensee's data is not used to train models. No data submitted to or processed by an artificial intelligence feature is used to train, fine-tune, or otherwise adjust any model, and it is not made available to any third party for that purpose.

8.5 The retention and deletion of data associated with artificial intelligence features, including conversations and uploaded documents, is governed by the Licensor's privacy policy at gwaith.co.nz/privacy.

9. Term and termination

9.1 Term. This Agreement is effective from the Effective Date and continues until terminated in accordance with this Section 9.

9.2 Termination by Licensor. GWAITH DEVELOPMENT LIMITED may terminate this Agreement, including the Licensee's licence, upon written notice if the Licensee:

  1. becomes insolvent or otherwise enters into any liquidation, receivership, administration, or bankruptcy process;
  2. exports the Software to any jurisdiction where the Licensor may not enforce its rights under this Agreement;
  3. is in breach of any term or condition of this Agreement and fails to remedy that breach within fourteen (14) days of receiving written notice specifying the breach and what is required to remedy it;
  4. is in material breach of clause 5.3 or clause 6.2, and that breach is by its nature not capable of being remedied;
  5. otherwise enters into any arrangement that causes or would cause the Licensor to be unable to enforce its rights under this Agreement.

Termination under paragraph (a), (b), (d), or (e) takes effect immediately upon written notice. Termination under paragraph (c) takes effect only if the breach remains unremedied at the end of the fourteen (14) day period. Where a breach is capable of being remedied, the Licensor will proceed under paragraph (c) and not under paragraph (d). The Licensor will not terminate under this clause in respect of a breach that the Licensee is taking reasonable steps to remedy within the period allowed.

9.3 Suspension pending remedy. Where the Licensee is in breach of this Agreement, the Licensor may suspend the Licensee's licence, or any licence key or API Key issued under it, in addition to or instead of terminating under clause 9.2. Suspension under this clause is subject to the following:

  1. The Licensor will give the Licensee written notice specifying the breach, what is required to remedy it, and the date on which the suspension will take effect, being not less than seven (7) days after the date of the notice. This paragraph does not apply where the breach falls within clause 9.2(d), or where immediate suspension is reasonably necessary to protect the security or integrity of the Software or the data of any other licensee, in which case the Licensor may suspend immediately and give notice as soon as practicable afterwards;
  2. Suspension is limited to what is reasonably necessary to address the breach;
  3. The Licensor will restore access promptly, and in any event within two (2) working days, once the breach has been remedied;
  4. During any period of suspension the Licensee retains the right to export its own data in accordance with clause 9.5(c).

Suspension for non-payment of fees is governed by clause 4.5 and not by this clause.

9.4 Termination by Licensee for loss of functionality. Where functionality of a kind described in clause 2.5 is withdrawn or restricted by the operator of a Third-Party System, and as a result a material part of the Software's functionality permanently ceases to be available to the Licensee, the Licensee may terminate this Agreement on written notice to the Licensor. The Licensee may not give notice under this clause until thirty (30) days after it has notified the Licensor of the loss of functionality, during which period the Licensor may restore the functionality or provide a reasonable alternative. Termination under this clause takes effect on the date stated in the notice, or on the date the notice is received if no date is stated. Subject to clauses 10.5, 11.3, and 11.4, termination under this clause is the Licensee's sole remedy against the Licensor in respect of that withdrawal or restriction, and does not affect any right the Licensee may have against its Reseller in respect of fees, in accordance with clause 4.4.

9.5 Effect of termination. Upon termination of this Agreement:

  1. Subject to paragraph (c), all rights granted to the Licensee under this Agreement shall immediately cease;
  2. Subject to paragraph (c), the Licensee shall immediately cease all use of the Software and destroy or delete all copies of the Software in its possession or control. This obligation applies to the Software, and not to the Licensee's own business data or to any report, export, or other output generated by the Software;
  3. Data export. For thirty (30) days following the date of termination, and during any period of suspension under clause 4.5 or clause 9.3, the Licensor will on request provide the Licensee with a reasonable means of exporting the Licensee's own business data held in any deployment hosted by the Licensor, in a commonly used machine-readable format. This paragraph does not apply where the Software is deployed on infrastructure the Licensee owns or controls, in which case the data remains on that infrastructure and under the Licensee's control. After that period the Licensor may delete the data in accordance with its privacy policy;
  4. Sections 1, 2, 6, 7, 10, 11, 12, and 15, together with clauses 4.6 and 9.5, shall survive termination.

10. Disclaimer of warranties

10.1 As is. The Software is provided "as is" and "as available" without warranty of any kind. To the maximum extent permitted by applicable law, GWAITH DEVELOPMENT LIMITED expressly disclaims all warranties, whether express, implied, statutory, or otherwise, including but not limited to implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.

10.2 No warranty of uninterrupted operation. GWAITH DEVELOPMENT LIMITED does not warrant that the Software will be error-free, uninterrupted, free of defects or harmful code, or that it will meet the Licensee's requirements or expectations.

10.3 Licensee's responsibility. The Licensee acknowledges that it uses the Software at its own risk and assumes all responsibility for the selection of the Software to achieve the Licensee's intended results and for the installation, use, and results obtained from the Software.

10.4 Application to output. This disclaimer applies to all files, reports, documents, and other output generated or edited by the Software, including output generated by the artificial intelligence features described in Section 8.

10.5 Consumer law notice. Certain jurisdictions, including Australia and New Zealand, provide consumer guarantees that cannot be excluded, restricted, or modified by contract. Subject to clause 10.6, nothing in this Agreement is intended to exclude, restrict, or modify any consumer guarantee or right that applies, and that cannot lawfully be excluded, restricted, or modified, under the Consumer Guarantees Act 1993 (New Zealand), the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010), or any other applicable consumer protection legislation. To the extent that any such guarantee or right applies, the liability of GWAITH DEVELOPMENT LIMITED is limited, to the extent permitted by law, to the replacement or repair of the Software or the resupply of the relevant service.

10.6 Acquisition for business purposes. The Licensee acknowledges and agrees that it acquires and uses the Software for the purposes of a business. Accordingly, and to the extent permitted by law:

  1. the parties agree to contract out of the Consumer Guarantees Act 1993 (New Zealand) in accordance with section 43 of that Act, and that Act does not apply to the supply of the Software under this Agreement; and
  2. where the Australian Consumer Law applies, the Licensee acknowledges that the Software is not of a kind ordinarily acquired for personal, domestic, or household use or consumption, and that it is acquired for use in the Licensee's business.

The Licensor and the Licensee are each in trade, this Agreement is in writing, and the parties agree that it is fair and reasonable that they be bound by this clause, having regard to the commercial nature of the supply and to the Licensee's opportunity to consider this Agreement and obtain independent advice before accepting it. This clause does not apply to the extent that the Licensee is in fact a consumer for the purposes of the legislation concerned, and in that case clause 10.5 applies instead.

11. Limitation of liability

11.1 Indirect and consequential loss. To the maximum extent permitted by applicable law, and subject to clauses 11.3 and 11.4, in no event shall GWAITH DEVELOPMENT LIMITED, its employees, agents, Resellers, or distributors be liable for any indirect, incidental, special, consequential, or punitive damages whatsoever, including but not limited to damages for loss of profits, loss of use, business interruption, loss of information or data, or pecuniary loss, arising out of or related to this Agreement, the Software, or the use or inability to use the Software, whether based upon contract, tort (including negligence), strict liability, or any other legal theory, even if GWAITH DEVELOPMENT LIMITED has been advised of the possibility of such damages.

11.2 Aggregate cap. To the maximum extent permitted by applicable law, and subject to clauses 10.5, 11.3, and 11.4, the total aggregate liability of GWAITH DEVELOPMENT LIMITED under or in connection with this Agreement shall not exceed the greater of:

  1. the total amount of fees attributable to the licence for the Software, whether paid to a Reseller or to GWAITH DEVELOPMENT LIMITED, during the twelve (12) months immediately preceding the event giving rise to the claim; and
  2. NZ$10,000.

For the purpose of this clause, fees attributable to the licence for the Software exclude any amount attributable to a Reseller's own services, to hardware, or to third-party products or charges. Where fees were invoiced to the Licensee as a single or bundled figure, the amount attributable to the licence for the Software is the Licensor's list price for that licence at the time of invoicing. The Licensor will state that amount in writing on request from the Licensee.

11.3 Consumer guarantees. The limitations set out in this Section 11 are subject to any consumer guarantees or rights referred to in clause 10.5 that cannot be excluded or limited by law.

11.4 Exclusions from the limitations. Nothing in this Section 11 limits or excludes the liability of GWAITH DEVELOPMENT LIMITED for fraud or fraudulent misrepresentation, for wilful misconduct, for death or personal injury caused by its negligence, or for any other liability that cannot lawfully be limited or excluded.

12. Indemnification

12.1 Licensee indemnification. The Licensee agrees to indemnify, hold harmless, and defend GWAITH DEVELOPMENT LIMITED, its officers, employees, agents, and distributors against any and all claims, proceedings, demands, losses, damages, costs, and expenses (including reasonable legal fees) resulting from or in any way connected with:

  1. The Licensee's breach of any term of this Agreement;
  2. The Licensee's violation of any applicable law or regulation;
  3. Any claim by a third party arising from the Licensee's own data, content, or records processed using the Software, or from the Licensee's breach of this Agreement.

This indemnity does not apply to the extent that the claim arises from the Licensor's own breach of this Agreement, its negligence, or its wilful misconduct, from a defect in the Software, or from any matter for which the Licensor indemnifies the Licensee under clause 12.3.

12.2 Licensor warranty. GWAITH DEVELOPMENT LIMITED warrants that, to the best of its knowledge, the Software does not violate or infringe any third-party intellectual property rights, patents, or trademarks, and that no legal action has been taken against it for any such infringement as of the Effective Date.

12.3 Licensor intellectual property indemnification. The Licensor will indemnify, hold harmless, and defend the Licensee against any claim by a third party that the Software, when used by the Licensee in accordance with this Agreement, infringes that third party's copyright, patent, trademark, or trade secret rights, and will pay any damages and costs finally awarded against the Licensee, or agreed in settlement, in respect of such a claim. This indemnity is subject to the limitation of liability in clause 11.2 and does not apply to the extent that the claim arises from:

  1. use of the Software in breach of this Agreement, or in combination with any product, data, or system not supplied or approved by the Licensor, where the claim would not have arisen but for that use or combination;
  2. any modification of the Software not made by or on behalf of the Licensor;
  3. the Licensee's continued use of a version of the Software after the Licensor has made a non-infringing replacement, Update, or Fix available to it at no additional charge; or
  4. a Third-Party System, which is governed by clause 2.1.

Where a claim of the kind described in this clause is made or is reasonably anticipated, the Licensor may at its own cost procure for the Licensee the right to continue using the Software, or modify or replace the Software so that it is non-infringing while remaining materially equivalent in function. If neither is reasonably achievable, the Licensor may terminate the licence on written notice, in which case it will notify the Licensee's Reseller so that fees paid in respect of the unexpired portion of the licence term may be refunded under the agreement between the Licensee and that Reseller. This clause states the Licensor's entire liability, and the Licensee's sole remedy under this Agreement, in respect of any claim that the Software infringes the intellectual property rights of a third party.

12.4 Conduct of claims. Where a party (the "Indemnified Party") seeks indemnity under clause 12.1 or clause 12.3 from the other party (the "Indemnifying Party"):

  1. The Indemnified Party shall notify the Indemnifying Party in writing promptly after becoming aware of the claim, and in any event within a period that does not materially prejudice the defence of that claim;
  2. The Indemnifying Party may assume and control the defence and settlement of the claim using counsel of its choosing, and the Indemnified Party shall provide reasonable cooperation at the Indemnifying Party's cost;
  3. The Indemnifying Party shall not settle or compromise the claim in any way that admits liability on the part of the Indemnified Party, imposes any obligation or payment on the Indemnified Party, or otherwise affects the Indemnified Party's rights, without the Indemnified Party's prior written consent, which shall not be unreasonably withheld or delayed;
  4. The Indemnified Party may participate in the defence of the claim with counsel of its own choosing at its own cost;
  5. If the Indemnifying Party does not assume the defence of the claim within a reasonable period after receiving notice of it, the Indemnified Party may defend and settle the claim and recover its reasonable costs under the applicable indemnity.

Each party shall promptly notify the other of any legal action of which it becomes aware relating to the Licensee's use of the Software.

13. Upgrades, updates, and fixes

13.1 The Licensor may, at its sole discretion, provide the Licensee with Upgrades, Updates, or Fixes from time to time.

13.2 The Licensee agrees to keep the Software up to date and to install all relevant Updates and Fixes in a timely manner. The Licensee may, at its sole discretion, purchase Upgrades according to the rates set by its Reseller.

13.3 The Licensor may provide any Update or Fix free of charge; however, nothing in this Agreement shall require the Licensor to provide Upgrades, Updates, or Fixes of any kind.

13.4 Any Upgrades, Updates, or Fixes provided to the Licensee are subject to all terms of this Agreement.

14. Support

14.1 First-line support. First-line support for the Software is the responsibility of the Reseller. The Licensee shall direct requests for assistance, training, configuration, and fault reports to its Reseller in the first instance. The Reseller may escalate a matter to the Licensor in accordance with the arrangement between the Reseller and the Licensor.

14.2 The Software is provided on an "as-is" basis. Unless otherwise agreed in a separate written support agreement, the Licensor is under no obligation to provide support, maintenance, or remediation of any bug, failure, mis-performance, or other defect in the Software.

14.3 Bug notification. The Licensee may report details regarding any bug, defect, or failure in the Software to its Reseller, or to the Licensor, promptly and without unreasonable delay. The Licensee shall comply with any reasonable request from the Licensor for information regarding such bugs, defects, or failures.

14.4 Feature requests. The Licensee may request additional features in the Software, provided that:

  1. The Licensee waives any claim or right in any such feature should it be developed by the Licensor;
  2. The Licensee warrants that the requested feature does not, to the best of the Licensee's knowledge, infringe any third-party patent, trademark, trade secret, or other intellectual property right.

15. General provisions

15.1 Governing law. This Agreement shall be governed by and construed in accordance with the laws of New Zealand, without regard to its conflict of laws provisions. The parties hereby submit to the non-exclusive jurisdiction of the courts of New Zealand for the resolution of any disputes arising out of or relating to this Agreement.

15.2 Entire agreement. This Agreement, together with any separate written agreements between the Licensor and the Licensee, constitutes the entire agreement between the Licensor and the Licensee with respect to the Software and supersedes all prior or contemporaneous oral or written communications, proposals, representations, and warranties relating to its subject matter. Clause 4.3 governs any conflict between this Agreement and an agreement between the Licensee and its Reseller. Nothing in this clause excludes or limits any liability or remedy arising from fraud or fraudulent misrepresentation, or operates to exclude, restrict, or modify the application of section 9, section 12A, or section 13 of the Fair Trading Act 1986 or of any equivalent provision of the Australian Consumer Law. This clause does not affect any right the Licensee has against its Reseller in respect of a representation made by that Reseller.

15.3 Amendment. GWAITH DEVELOPMENT LIMITED may modify this Agreement from time to time, subject to the following:

  1. Grounds. A modification may be made only to reflect a change in applicable law or regulatory requirement, to address a security or operational risk, to describe a new, changed, or discontinued feature of the Software, to reflect a change to a Third-Party System or to a subprocessor engaged by the Licensor, or to reflect a change in the Licensor's costs of providing the Software;
  2. Material changes. A modification that materially reduces the Licensee's rights or materially increases the Licensee's obligations takes effect no earlier than thirty (30) days after the Licensor gives the Licensee notice of it, by email to the address associated with the Licensee's account or by notice within the Software. Publication on the Licensor's website is not by itself sufficient notice of a material change;
  3. Right to reject. If the Licensee does not accept a material change, the Licensee may terminate this Agreement without penalty by giving the Licensor written notice at any time before that change takes effect. Any entitlement of the Licensee to a refund of fees paid in respect of the unexpired portion of its licence term is governed by the agreement between the Licensee and its Reseller, and the Licensor will notify the Reseller of a termination under this paragraph;
  4. Other changes. A modification that does not materially reduce the Licensee's rights or materially increase its obligations, such as the correction of an error, a clarification of existing wording, or the description of a new feature that the Licensee is not required to use, may be made by publication on the Licensor's website and takes effect on publication;
  5. Continued use. Continued use of the Software after a modification has taken effect in accordance with this clause constitutes acceptance of the modified terms.

15.4 Severability. If any provision of this Agreement is held to be unlawful, void, or unenforceable by a court of competent jurisdiction, that provision shall be deemed severed from this Agreement and shall not affect the validity or enforceability of the remaining provisions, which shall continue in full force and effect.

15.5 Waiver. The failure of either party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement must be in writing and signed by the waiving party.

15.6 Force majeure. Neither party shall be liable for any failure or delay in performing its obligations under this Agreement (other than payment obligations) where such failure or delay results from circumstances beyond the reasonable control of that party, including but not limited to natural disasters, acts of government, pandemic, war, terrorism, riots, power failure, internet or telecommunications failure, or cyberattack.

15.7 Notices. All formal notices under this Agreement shall be in writing and shall be deemed duly given when delivered by email (with confirmation of receipt) or by registered post to:

  1. The Licensor: GWAITH DEVELOPMENT LIMITED, 2 Victoria Street, Mosgiel, 9024, New Zealand; or by email to admin@gwaith.co.nz.
  2. The Licensee: the postal or email address provided by the Licensee in its account registration or most recently updated with the Licensor or its Reseller.

15.8 Assignment by Licensor. GWAITH DEVELOPMENT LIMITED may assign or transfer this Agreement and all of its rights and obligations hereunder to any successor, affiliate, or acquirer of all or substantially all of its business or assets without the consent of the Licensee, provided that the assignee agrees to be bound by the terms of this Agreement.

15.9 Relationship of parties. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employment relationship between the parties.

15.10 Export compliance. The Licensee shall not export or re-export the Software or any copy or adaptation thereof in violation of any applicable laws or regulations.

15.11 Consumer law. To the extent that any mandatory consumer protection laws apply to this Agreement in the Licensee's jurisdiction (including, without limitation, the Consumer Guarantees Act 1993 (New Zealand) and the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010)), no provision of this Agreement shall be read as excluding, restricting, or modifying the application of any such mandatory laws. If there is a conflict between this Agreement and any such mandatory law, the mandatory law prevails to the extent of the conflict. Clause 10.6 applies where the Licensee acquires the Software for the purposes of a business and the applicable legislation permits the parties to contract out of it, and nothing in this clause prevents clause 10.6 from taking effect to that extent.

End of agreement.

Enquiries about this Agreement may be sent to admin@gwaith.co.nz.