# DX2 Customer Terms

** Below are the General Terms and Conditions, these do not apply to Enterprise Customers in the USA with individual Terms and Conditions Agreements **

Welcome to DX2, a self-service on-online portal that OLYMPIC SOFTWARE N.Z. LIMITED has developed for businesses that wish to create, exchange and track business documents with their partners. These Terms are intended to explain our obligations to you and your obligations as a customer when you use the DX2 network or our related web sites.

Please read these Terms carefully.

By registering with us, accessing and continuing to access the DX2 network or permitting other persons to utilise it, our technical support services or our web sites you agree that you have read, understood and accepted our Terms and are authorised to use the DX2 network.

In some areas we have appointed a Reseller who may be providing services to you on our behalf. In places in this agreement where we use the words ‘we’, ‘us’ or ‘our’ they may also apply to the Reseller as well as or instead of Olympic Software where appropriate.

We may update these Terms from time to time and make them available on our web sites.

Last updated: 28 July 2020 Version 4.0

# 1. Our Commitments

We want to make it easy for you to do business with us and others. We are committed to:

responding to your needs quickly and effectively;
maintaining a secure network and protecting your privacy;
putting you in touch with the right person to answer your inquiries;
ensuring that our services are available to you 24 hours a day; and
keeping you informed about new services which may benefit your business.

Wherever we provide services for you, we agree to:

provide them with due care and skill;
make sure they do everything we say they will do;
do our best to ensure they are reliable although we do not guarantee they will be continuous or fault-free;
implement and maintain security procedures and measures in order to ensure the integrity of them;
guard against the risks of unauthorised access, alteration, destruction or delay;
use reasonable efforts to publish on our web sites or notify you about any planned downtime of the DX2 network;
store all your data on the DX2 network for so long as you have an account open with us unless you otherwise ask us to destroy it;
comply with our Privacy Policy. relating to the privacy and security of your personal data available on the DX2 network;
use reasonable efforts to contact you directly via email to warn you prior to suspension or termination of your User Account or Customer Account; and
be available to fix any fault or disruption which occurs in the DX2 network.

However, we take no responsibility for the nature, quality or content of any material you may access through using the DX2 network or our web sites nor do we exercise any editorial control over it.

# 2. DX2 Network Services

Subject to your compliance with these Terms, we grant to you a non-exclusive, non-transferable right to use the following DX2 network services and our web sites solely for your business operations:

a network by which you can exchange commercial and business documents;
a software program through which you can create your own network by inviting your customers and suppliers to join the DX2 network;
the ability to create an integration through the DX2 network with other customers;
the business network and electronic business documents, and other tools and services provided by us; and
all additional services, applications or new features made available through the DX2 network.

Whenever you issue and receive invoices and/or other business documents through the DX2 network it is always subject to the technical and functional specifications of DX2 network as amended from time to time. Using our services does not give you any rights in any parts of the DX2 network.

When you register to use the DX2 network and our web sites, by default the profile, company information and the personal data and other information which you provide us with (which you confirm is true and accurate), including, but not limited to, your company name, description and address, may become publicly available on the DX2 network for others to view. Accordingly, any other user of the DX2 network may view your profile and contact you or (if you have agreed to exchange business documents with them) send you an invoice or another business document via the DX2 network.
You shall ensure you are entitled to disclose the personal data and other information to us from within your organisation or relevant third parties and that they have given their consent to our use and processing of their personal data or information in accordance with these Terms and our Privacy Policy. You will update and correct any data you disclose to us and ensure that it is accurate at all times. If you are located within the European Economic Area (EEA), you acknowledge and agree that your personal data maybe transferred or stored outside the EEA in order to provide the DX2 services.

# 3. Your Responsibilities

Whenever you use the DX2 network or our web sites, it is your responsibility to:

follow our directions about the use of them and to comply with these Terms;
ensure you are authorised to access them and are not using them as a competitor, private individual or consumer;
use them for lawful purposes and without annoying anyone such as sending unsolicited volume e-mails or infringing any copyright;
ensure all information you submit is correct, up-to-date and complete;
never interfere with our other DX2 customers or promote violence or discrimination against them;
keep your password(s) secure and advise us promptly if someone unauthorised gains access to them or the DX2 network;
ensure that any messages you send or receive containing confidential information (or agreed mutually to be confidential) are maintained in confidence and are not disclosed or transmitted to any unauthorised persons nor used for any purposes other than those intended by the sending customer;
ensure you are not using crawlers, robots, data mining or extraction tools or anything harmful such as viruses that may interfere with other customers computer system;
never reverse engineer/compile or disassemble or copy/modify any of the DX2 network or related software;
ensure the purpose is not for monitoring performance or functionality, or for any other benchmarking or competitive purposes;
comply with the Copyright Act 1994 and the Privacy Act 1993 where your business relates to New Zealand, and all defamation and other applicable laws; and
make sure anyone else who uses them on your behalf, or does anything relating to them, also meets these responsibilities.

We reserve the right, without liability to you, to disable, suspend or terminate your access to the DX2 network and our web sites, your account(s) or any other material if you breach any provision of these Terms.

You are also responsible where you access third party web site content, correspond with, and purchase products and services from, third-party web sites. You acknowledge that you do so solely at your own risk, and we do not accept any liability in relation to the content or use of, or correspondence with, or any transactions completed by you with any such third party.

We do not endorse or approve any third-party web sites nor the content of any of the third-party web sites made available via the DX2 network.

# 4. Our Charges

You must pay for your use of the DX2 network and for the services we provide to you no matter who uses them. Most charges are billed at the end of each month and the amount due is to be paid to us within 7 days in N.Z dollars (including GST), unless services provided by a Reseller who may offer a variation on these terms. We may increase our charges from time to time (for example services that are currently provided for free may not be), provided that we have first given you reasonable notice of our new charges.

All charges including non-standard charges will be set out in a pricing schedule that will be agreed between us in writing.

In general, there will be no charges for your use of storage for your data and documents associated with your usage of DX2. We may charge you for additional storage space in the event other material is being stored or your storage usage is inconsistent with the level of transactional activities. Certain additional or non-standard services may be provided by us and third parties and the provision of these may be subject to further terms and charges e.g. consultancy or training services.

# Billing

Our charges are based on records we keep of the services we provide and are non-cancellable and non-refundable. Please let us know before the due date for payment if you think a bill has a mistake or includes a charge which you should not have to pay. We will investigate the matter. While we are doing this, you need pay only the undisputed part of the bill by the due date for payment. Normally, we will be able to find out if there is a mistake in our records and get back to you within 7 working days.

If we have not received payment of any bills within 7 days after the due date, and without prejudice to any of our other rights and remedies:

we may, without having any liability, disable all your accounts that you have with us, passwords and access to all or part of the DX2 network while the bill remains unpaid;
charge interest on the overdue amounts at 3% p.a. over the then current base commercial lending rate of our bank commencing on the due date for the bill and continuing until fully paid, whether before or after judgement; and
charge you for any reasonable expenses we incur in collecting any money you owe us or in exercising any of our other legal rights.

# 5. Termination

You may terminate any service with us or with another customer you exchange documents with simply by sending us a notice advising of the service end date. Where you have agreed to take the service for a minimum period, charges for the service will continue until the end of that period. Otherwise they will stop at the end of the following month. Upon termination of the service(s), all licences granted under these Terms shall immediately terminate and all of your data will be rendered inactive in our records. If you would like us to provide you with the most recent back-up of your data, you must contact us within ten working days of the date of termination and, subject to your compliance with these Terms, we shall use our reasonable efforts to deliver (at your cost, payable in advance of delivery) your data to you as soon as reasonably practicable.

You shall pay all reasonable expenses incurred by us in disposing of your data in a manner inconsistent with our standard practice for the disposal of data.

Notwithstanding termination for any reason, the rights and obligations of the parties governed by these Terms shall survive the termination in relation to any matter arising prior to the termination and any obligations which, by their nature, are intended to survive beyond termination. Clauses 5 (Termination), 7 (Limitation of Liability), 8 (Intellectual Property), 12 (Notices) and 15 (Governing Law) shall survive any termination of these Terms.

# 6. Compensation and Liability

# Reasonable Costs

Where a service we provide to you is affected because we do not meet our responsibilities to you, and you reasonably incur direct costs as a result, please let us know. Where we consider it appropriate, we will refund to you all or part of those direct costs.

Where we do not meet a responsibility we have to you, the refund of our charges is limited to an amount equal to our standard monthly charge for the affected service.

For us to consider your claim, you must tell us within 7 days after the problem occurs.

# Exceptions

We are not liable to reimburse you in any form for our failure to meet a responsibility we have to you where such failure arises from any one or more of the following events or losses:

faults caused by either your (or your customer’s) equipment, applications, interconnected equipment, networks, systems or gateways and/or your acts or omissions, third party components whether within or outside the DX2 network or the acts or omissions of local network carriers or failure of third party services;
disconnection and/or reconnection of the services due to non-payment of any charges payable by you or where the services are disconnected by reason of it being used for any illegal, unlawful or other objectionable purpose described in these Terms;
scheduled or routine maintenance or reconfiguration of our DX2 network or our equipment, including without limitations the following:
- Maintenance by local network operators on access circuits affecting our web sites; or
- Maintenance (software) or upgrades made on the DX2 network;
- faults arising from reasons beyond our reasonable control and force major events including but not limited to catastrophic incidents, riots, vandalism, lightning, power failure, fire, flood, earthquake, emergency, curfew, industrial disputes, acts or omission of any person for whom we are not responsible or any causes whether similar or otherwise outside our control;
- DNS (Domain Name Server) issues or changes (propagation issues) outside our direct control;
- outages elsewhere on the Internet that hinder access to your account or the DX2 network;
- your acts or omissions (or acts or omissions of others engaged or authorized by you), including, without limitation any negligence, wilful misconduct, or use of our services in breach of these Terms;
- distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our web sites or due to you downloading any software or material posted on it, or on any other web site linked to it; and
- any damages resulting from your reading or use of the contents of any message sent to you through the DX2 network.

We will warrant only those areas of our services that we consider to be under our control.

# Property Damage

If in the course of providing consulting services we or anyone we are responsible for causes physical damage to your property through not taking reasonable care, we will pay the reasonable costs of repairing the damage up to the maximum amounts available under our public liability insurance policy. For us to consider your claim, you must tell us within 7 days after the property is damaged.

# 7. Exclusion of Our Liability and Indemnity

We have set out your rights to claim a refund of our charges for any problems you may have and to claim compensation from us. We now exclude all other liability we may have to you. This exclusion also applies for the benefit of these people:

other customers we allow to use the DX2 network and to provide the DX2 network (such as Spark), their employees, contractors and everyone they are responsible for; and
our employees and contractors, everyone we are responsible for and anyone else we get to perform our responsibilities. None of us is liable to you or has to pay you for anything else caused by or resulting from anything any of us does or does not do, or delays in doing, whether or not it is contemplated or authorised by these Terms or any agreement you have with us. This exclusion applies:
- whatever you are claiming for (including loss of profits or business)
- however, liability arises or might arise if it were not for this clause.

This exclusion does not prevent you getting a court order requiring us to do anything we have agreed to do for you. You agree to defend, indemnify and hold us harmless from and against all claims and expenses, including legal fees, arising out of or related to:

any content submitted or posted by you, in connection with your use of the DX2 network, or any use of our web site or services in violation of these Terms;
any fraud you commit or your intentional misconduct or gross negligence; and
your violation of any applicable laws or rights of another customer or third-party.

# GENERAL

# 8. Intellectual Property Rights

We have intellectual property rights in the DX2 network and our web sites including the software forming part of it. These rights include, for example, all copyright, trademark and design rights relating to the systems, software, documents and services. We retain all our rights when we provide access to the DX2 network or services to you. Except as expressly stated in these Terms, we do not grant you any rights to, or in, our intellectual property, or any other rights or licences in respect of our services, the DX2 network or the documentation.

All information about the design of the DX2 network and our services is confidential, and you must not copy any of it or disclose it to anyone.

You grant to us a royalty free irrevocable worldwide right and non-exclusive licence to use, make available, reproduce, modify, publish, edit, translate, distribute, perform and display any content you post or supply (such as on message boards, chat rooms, blogs and/or other public forums, to the extent they are made available to other customers) under these Terms and any other intellectual property rights necessary and/or desirable in our reasonable opinion to provide our services through the DX2 network and/or via any other form, media or technology for as long and as otherwise necessary to enable us to perform our obligations under these Terms. You also agree that we may use your company name and/or logo in our marketing and publicity material as examples of current users of the DX2 network unless you choose to opt out by notifying us by email.

# 9. Cookies and Privacy

We may obtain information about your general Internet usage by using a cookie file which is stored on your browser or the hard drive of your computer. Cookies contain information that is transferred to your computer’s hard drive. They help us to improve our web sites and services so that we can deliver a better and more personalised service, for example by remembering your login details. Some of the cookies we use are essential for the DX2 network to operate. By registering with the DX2 network, you agree to our use of cookies.

Unfortunately, the transmission of information via the Internet is not completely secure. Although we will do our best to protect your personal data, we cannot guarantee the security of your personal data transmitted over the DX2 network. Any transmission is at your own risk. Once we have received your personal data, we will use strict procedures and security features to try to prevent unauthorised access.

We will need you to help us ensure that all the personal data you provided to us is accurate and up to date. If you wish to correct and update any of your personal data, you may do so by updating the personal data through the preferences available in your account.

For business activities relating to New Zealand, the Privacy Act gives you the right to access information we hold about you. Your right of access can be exercised in accordance with the Act. Any access request may be subject to a fee to meet our reasonable costs in providing you with details of the information we hold about you. Please send any access requests to privacy@olympic.co.nz

# 10. All Services Acquired for Business Purposes

For business activities relating to New Zealand, you agree that you are acquiring our services for the purposes of a business as defined in the Consumer Guarantees Act 1993. The provisions of that Act do not apply to the DX2 network or any of our other services as they are not available for domestic or household use.

# 11. Assignment

You may assign (if you sell your company) and appoint another company on your behalf to use the DX2 network so long as you first obtain our prior written approval. We may assign and have someone else provide the DX2 network or any of the services we provide under these Terms.

# 12. Sending Bills and Notices

We will send bills and other notices to you using the DX2 network as a transport mechanism, and when this is not available, we will send bills and other notices to the last email address you have given us. We may also send notices in writing by personal delivery, post or facsimile. We can assume any bill or notice we send by post has been delivered 5 days after we post it. Any communication received after 5pm or on a day which is not a working day in the place of receipt shall be deemed not to have been received until the next working day in the place of receipt. Please tell us if you change your contact details.

# 13. Unsolicited Materials

Please do not send us any unsolicited materials of any kind as we do not accept or read them. If you send us unsolicited materials, you understand and agree that the following terms will apply, notwithstanding any covering letter or other terms that accompany them:

we will not review them or keep them confidential; and
we may use and redistribute them for any purpose without restriction and free of any obligation to acknowledge or compensate you.

# 14. Technical Support and Complaints

In the event of an enquiry, problem or loss of service relating to the use of the DX2 network, which you cannot resolve, the procedure is as follows:

We ask that you report all problems/enquiries to the Support Desk, providing as much detail as possible about your problem/enquiry;
We will log the problem with appropriate details into our call management system and assign a unique number to track your call. Your call will be passed to one of our support consultants who will endeavour to resolve your problem/enquiry with a phone call;
All business-critical problems being identified as the non-availability of the DX2 network, will be responded to within 60 minutes during normal business hours and where possible, resolved within four working hours. All business-critical problems will take priority over all other calls you report to us;
Where any failure occurs owing to a fault or service provided by us, our software provider or contracted third party supplier (e.g. Network Provider) every effort will be made to restore service within four business hours, but we cannot guarantee this;
Where any failure occurred owing to a fault or service provided by you, then we will provide assistance as required, but we will not be liable for the resolution of service; or
All other calls will be prioritised and handled in accordance with our resolution policies or any variations agreed between us in writing.

Any concerns or complaints regarding the DX2 network should be emailed in the first instance to support@olympic.co.nz.

# 15. Governing Law

If any provision (or part of a provision) of these Terms is found by any Court to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of these Terms.

These Terms and any dispute or claim arising out of or in connection with them shall be governed by and construed in accordance with the laws of New Zealand. The New Zealand Courts will have jurisdiction over any claim arising from, or related to, the DX2 network, our services or these Terms.

Where services are provided by a Reseller based in the United States of America this Agreement and all matters and issues collateral thereto shall be governed by the laws of the Commonwealth of Virginia, without regard to its conflict of law principles. Any action or proceeding arising out of or relating to this Agreement shall be brought in a court of competent jurisdiction, federal or state, located within the Commonwealth of Virginia. The parties hereby irrevocably consent to personal jurisdiction and venue in, and agree to service of process issued or authorized by, any such court; provided, however, that nothing in this Agreement will prevent us from seeking injunctive relief to enforce the terms of this Agreement in any competent venue or jurisdiction, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.