1. Application of Terms

1.1 These Terms apply to your use of the Website. By accessing and using the Website:

a. you agree to these Terms; and
b. where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.

1.2 If you do not agree to these Terms, you are not authorised to access and use the Website, and you must immediately stop doing so.

2. Changes

2.1 We may change these Terms at any time by updating them on the Website. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Website, you agree to be bound by the changed Terms.

2.2 We may change, suspend, discontinue, or restrict access to, the Website without notice or liability.

2.3 These Terms were last updated on 28th October 2018.

3. Definitions

In these Terms:

including and similar words do not imply any limit

• Loss includes loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis
• Personal information means information about an identifiable, living person
• Terms means these terms and conditions titled Website Terms of Use
• Underlying System means any network, system, software, data or material that underlies or is connected to the Website
• User ID means a unique name and/or password allocated to you to allow you to access certain parts of the Website
• We, us or our means Filed Ltd and Filed Tax Ltd
• Website means https://filed.nz
• You means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.

4. Your Obligations

4.1 You must provide true, current and complete information in your dealings with us (including when setting up an account), and must promptly update that information as required so that the information remains true, current and complete.

4.2 If you are given a User ID, you must keep your User ID secure and:

a. not permit any other person to use your User ID, including not disclosing or providing it to any other person; and
b. immediately notify us if you become aware of any disclosure or unauthorised use of your User ID, by sending an email to info@filed.nz.

4.3 You must:

a. not act in a way, or use or introduce anything (including any virus, worm, Trojan horse, timebomb, keystroke logger, spyware or other similar feature) that in any way compromises, or may compromise, the Website or any Underlying System, or otherwise attempt to damage or interfere with the Website or any Underlying System; and
b. unless with our agreement, access the Website via standard web browsers only and not by any other method. Other methods include scraping, deep-linking, harvesting, data mining, use of a robot or spider, automation, or any similar data gathering, extraction or monitoring method.

4.4 You must obtain our written permission to establish a link to our Website. If you wish to do so, email your request to info@filed.nz.

4.5 You indemnify us against all Loss we suffer or incur as a direct or indirect result of your failure to comply with these Terms, including any failure of a person who accesses and uses our Website by using your User ID.

5. Intellectual Property

We (and our licensors) own all proprietary and intellectual property rights in the Website (including all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel), and the Underlying Systems.

6. Disclaimer

6.1 To the extent permitted by law, we and our licensors have no liability or responsibility to you or any other person for any Loss in connection with:

a. the Website being unavailable (in whole or in part) or performing slowly;
b. any error in, or omission from, any information made available through the Website;
c. any exposure to viruses or other forms of interference which may damage your computer system or expose you to fraud when you access or use the Website. To avoid doubt, you are responsible for ensuring the process by which you access and use the Website protects you from this; and
d. any site linked from the Website. Any link on the Website to other sites does not imply any endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators.

4.3 We make no representation or warranty that the Website is appropriate or available for use in all countries or that the content satisfies the laws of all countries. You are responsible for ensuring that your access to and use of the Website is not illegal or prohibited, and for your own compliance with applicable local laws.

7. Liability

7.1 To the maximum extent permitted by law:

a. you access and use the Website at your own risk; and
b. we are not liable or responsible to you or any other person for any Loss under or in connection with these Terms, the Website, or your access and use of (or inability to access or use) the Website. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.

7.2 Except to the extent permitted by law, nothing in these Terms has the effect of contracting out of the New Zealand Consumer Guarantees Act 1993 or any other consumer protection law that cannot be excluded. To the extent our liability cannot be excluded but can be limited, our liability is limited to NZD100.

7.3 To the maximum extent permitted by law and only to the extent clauses 7.1 and 7.2 of these Terms do not apply, our total liability to you under or in connection with these Terms, or in connection with the Website, or your access and use of (or inability to access or use) the Website, must not exceed NZD100.

8. Privacy Policy

8.1 You are not required to provide personal information to us, although in some cases if you choose not to do so then we will be unable to make certain sections of the Website available to you. For example, we may need to have your contact information in order to provide you with updates from our Website.

8.2 When you provide personal information to us, we will comply with the New Zealand Privacy Act 1993.

8.3 The personal information you provide to us (including any information provided if you register for an account) is collected and may be used for communicating with you, statistical analysis, the marketing by us of products and services to you, credit checks (if necessary), and research and development.

8.4 We may also collect technical information whenever you log on to, or visit the public version of, our Website. This may include information about the way users arrive at, browse through and interact with our Website. We may collect this type of technical information through the use of cookies and other means. Cookies are alphanumeric identifiers that we transfer to your computer’s hard drive to enable our systems to recognise your browser. If you want to disable cookies, you may do so by changing the settings on your browser. However, if you do so, you may not be able to use all of the functions on the Website. We use the technical information we collect to have a better understanding of the way people use our Website, to improve the way it works and to personalise it to be more relevant and useful to your particular needs. We may also use this information to assist in making any advertising we display on the Website more personalised and applicable to your interests.

a. to service providers and other persons working with us to make the Website available or improve or develop its functionality (e.g. we may use a third party supplier to host the Website);
b. in relation to the proposed purchase or acquisition of our business or assets; or
c. where required by applicable law or any court, or in response to a legitimate request by a law enforcement agency.

8.6 Any personal information you provide to us may be stored on the secure servers of our trusted service providers, which may be located outside New Zealand. This may involve the transfer of your personal information to countries which have less legal protection for personal information than New Zealand.

8.7 You have the right to request access to and correction of any of the personal information we hold about you. If you would like to exercise these rights, please email us at info@filed.nz.

8.8 This section should be read in conjunction with our Privacy Policy which can be viewed at https://filed.nz/privacy-policy/

9. Suspension and Termination

9.1 Without prejudice to any other right or remedy available to us, if we consider that you have breached these Terms or we otherwise consider it appropriate, we may immediately, and without notice, suspend or terminate your access to the Website (or any part of it).

9.2 On suspension or termination, you must immediately cease using the Website and must not attempt to gain further access.

10. General

10.1 If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications.

10.2 These Terms, and any dispute relating to these Terms or the Website, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms or the Website.

10.3 For us to waive a right under these Terms, the waiver must be in writing.

10.4 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 4.5, 5, 6, 7, 10.1, continue in force.

10.5 If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.

10.6 These Terms set out everything agreed by the parties relating to your use of the Website and supersede and cancel anything discussed, exchanged or agreed prior to you agreeing to these Terms. The parties have not relied on any representation, warranty or agreement relating to the Website that is not expressly set out in the Terms, and no such representation, warranty or agreement has any effect from the date you agreed to these Terms.

Please read these Terms of Service (this “Agreement”) carefully as they constitute a binding contract between you, an individual user (“you”) and Filed Limited and Filed Tax Limited (“Filed”) governing your use of the Filed website found at https://filed.nz (“Website”), any mobile applications (each an “App”), or other Internet services under Filed’s control and used to provide Filed’s services to you (the Website, Apps, those Internet services and any supporting activities undertaken by Filed are, collectively, the “Services”). By clicking on “I accept” on the sign-up page, installing the App, or otherwise accessing or using the Services, you have read, understood, and agree to be bound by and comply with the terms and conditions of this Agreement. If you are using the Services on behalf of an entity, partnership, or other organisation, then you represent and warrant that you: (i) are an authorised representative of that entity with the authority to bind that entity to this Agreement, and (ii) agree to be bound by this Agreement on behalf of that entity. If you do not agree, the Customer (as defined below) is not permitted to use the Services.

(1) Definitions

a “Customer” means you or, if you are using the Service on behalf of a company, entity, or organization, the entity, partnership or organization on whose behalf you are utilizing the Services.

b “Party” means either the Customer or Filed and “Parties” means both the Customer and Filed

c “Recipient” means a Customer who is an accountant, accounting firm, or other third party whose clients include Filed customers. Recipients access the Services in accordance with this Agreement for the purposes of obtaining, with their clients’ authorization, Customer Data about such clients to provide them services.

d “Representative” means a representative of the Customer, including an accountant, accounting firm, or other third party, to whom the Customer provides (or for whom Customer authorises Filed to provide) access to the Customer’s Data stored via the Services for the purpose of providing the Customer professional services.

e “Sign-up” means the on-line sign-up process on Filed’s website.

f “Term” has the meaning set out in Section 6.

(2) Subscribing to the Service; Eligibility

The Customer subscribes for the Services by selecting them from the options available during Sign-up. In the event of any conflict between this Agreement and the information provided during Sign-up, this Agreement shall control. The Customer and all Customer Personnel (as defined below) must be at least 18 years of age to use the Services. By agreeing to this Agreement, you represent and warrant to Filed that: (a) you are at least 18 years of age; (b) you have not previously been suspended or removed from the Services; and (c) your registration and your use of the Services is in compliance with all applicable laws and regulations.

(3) License

a License Grant. Subject to the Customer’s complete and ongoing compliance with all the terms and conditions of this Agreement and payment of all applicable fees, Filed hereby grants to the Customer a personal, limited, revocable, non-exclusive, non-sublicensable, non-transferable license during the Term, to access and use the Services through Filed’s available interfaces and to permit Customer Personnel (as defined below) to access and use the Services through Filed’s available interfaces, in each case, solely in connection with the Customer’s internal business operations.

b User IDs. Upon the Customer’s request, Filed will issue a Customer ID to the Customer. The Customer may share this Customer ID with each of its partners, shareholders, employees and contractors who are bound by confidentiality restrictions at least as restrictive as this Agreement (“Customer Personnel”). Customer Personnel may only access and use the Service through the Customer ID and in compliance with this Agreement. Customer will not allow Customer Personnel to share the Customer ID with third parties. The Customer is responsible for all activity occurring under its Customer ID. The Customer is responsible for all use of the Services by Customer Personnel and for maintaining the confidentiality of the Customer ID and will promptly notify Filed of any actual or suspected unauthorised use of the Services. Filed reserves the right to replace the Customer ID if it determines it may have been used for an unauthorised purpose.

c Internet Connectivity; Disclaimer. Filed may make the Services available for access via the Internet. The Customer shall provide, at Customer’s own expense, all necessary hardware, applications and Internet connectivity necessary to access the Services. The Customer acknowledges that the Internet is known to be unpredictable in performance, unsecure and may, from time to time, impede access to the Services or performance hereunder. The Customer agrees that Filed is not in any way responsible for any interference with the Customer’s use of or access to the Services or security breaches arising from or attributable to the Internet and the Customer waives any and all claims against Filed in connection therewith.

d Limitations. The Customer agrees that it will not, and it will not permit any Customer Personnel or any other party to: (i) permit any party to access or use the Services other than the Customer Personnel authorised under this Agreement; (ii) modify, adapt, alter or translate any software underlying the Services, except as expressly allowed hereunder; (iii) sublicense, lease, rent, loan, distribute, or otherwise transfer the Service to any third party; (iv) except if, and solely to the extent that, such a restriction is impermissible under applicable law, reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or algorithms, structure or organization) of any software underlying the Services; (v) use or copy the any software underlying the Services except as expressly allowed hereunder; (vi) conduct or promote any illegal activities while using the Services; (vii) use the Services to generate unsolicited email advertisements or spam; (viii) use the Services to stalk, harass or harm another individual; (ix) use any high volume automatic, electronic or manual process to access, search or harvest information from the Services (including without limitation robots, spiders or scripts); (x) except if, and solely to the extent that, such a restriction is impermissible under applicable law, interfere in any way with the proper functioning of the Services or interfere with or disrupt any servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (xi) attempt to gain access to secured portions of the Services to which it does not possess access rights; (xii) upload or transmit any form of virus, worm, Trojan horse, or other malicious code; (xiii) use any robot, spider, other automatic device, or manual process to extract, “screen scrape”, monitor, “mine”, or copy any static or dynamic web page on the Services or the content contained on any such web page for commercial use without our prior express written permission; (xiv) impersonate any person or entity, or otherwise misrepresent its affiliation with a person or entity; (xv) mirror or frame the Services or any content, place pop-up windows over its pages, or otherwise affect the display of its pages; or (xvi) publicly display or publicly perform any part of the Services. Customer may not use the Services for any purpose other than a purpose for which the Services are expressly designed. If Customer is prohibited under applicable law from using the Services, Customer may not use them.

e Suspension of Access. In addition to any other suspension or termination rights of Filed pursuant to this Agreement, certain circumstances may require Filed to suspend or terminate (where appropriate), as determined in Filed’s discretion, the Customer’s access to and/or use of, or otherwise modify, the Services and/or any component thereof, without notice in order to: (i) prevent damages to, or degradation of the integrity of, Filed’s Internet network; (ii) comply with any law, regulation, court order, or other governmental request or order; or (iii) otherwise protect Filed from potential legal liability or harm to its reputation or business. Filed will use commercially reasonable efforts to notify the Customer of the reason(s) for such suspension or termination action as soon as reasonably practicable. Nothing contained in this Agreement will be construed to limit Filed’s actions or remedies or act as a waiver of Filed’s rights in any way with respect to any of the foregoing activities. Filed will not be responsible for any loss or damages incurred by Customer as a result of any termination or suspension of access to or use of the Services.

f Fair Use Policy All of the Services are subject to the Fair Use Policy. Your use of the Services must be fair, reasonable and not excessive, as reasonably determined by us by reference to average and/or estimated typical customer usage of the Services. We will consider your usage to be excessive and unreasonable where it materially exceeds the average and/or estimated use patterns over any day, week or month (or other period of time as determined by us) (Excessive Usage). Where we offer any included Services under a Plan or other Services, such use is offered for your individual use and benefit only. If in our reasonable opinion we consider your usage to be unfair, unreasonable and/or Excessive Usage we may immediately suspend, modify or restrict your use of the Services or withdraw in full or in part your access to the Services without notice to you.

(4) Reservation of Rights

a Filed. Filed expressly reserves all rights in the Services and all other materials provided by Filed hereunder not specifically granted to the Customer. It is acknowledged that all right, title and interest in the Services and all other materials provided by Filed hereunder, any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with Filed (or third party suppliers, if applicable) and that the Services and all other materials provided by Filed hereunder are licensed on a subscription basis and not “sold” to Customer. Filed reserves the right, in its sole discretion, to change, modify, add, or remove portions of the Services. Certain of the names, logos, trademarks, trade names, service marks, content, visual interfaces, interactive features, information, compilation, computer code, products, services, and other materials displayed on the Services (“Filed Materials”), are protected by copyright, trade dress, patent, and trademark laws of New Zealand, and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between the Customer and Filed, all Filed Materials, including intellectual property rights therein and thereto, are the sole and exclusive property of Filed or its subsidiaries or affiliated companies and/or its third-party licensors. The Customer is not authorised to use, sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit adapt, or create derivative works from any such Filed Materials except as expressly authorised hereunder. The Customer shall not acquire any right, title, or interest to the Filed Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in this Agreement, and any goodwill associated therewith shall ensue solely to Filed, or its subsidiaries or affiliated companies and/or its third-party licensors, as applicable. Any use of third party software or services in connection with the Services will be governed by such third parties’ licenses or terms of service and not by this Agreement and may be subject to separate fees, including, without limitation, your mobile network operator’s fees, including fees charged for data usage and overage, which are Customer’s sole responsibility.

b Customer. The Customer expressly reserves all rights in any information, records, files or other data that the Customer (or Customer Personnel) loads, enters into, or otherwise makes available to Filed or the Services and all results from processing such data, including compilations, and derivative works thereof (the “Customer Data”), except that the Customer grants Filed a perpetual, non-exclusive, world-wide, royalty free, fully sublicenseable, fully paid-up license to use, reformat, modify, display, perform, reproduce, and create derivative works of the Customer Data: (i) in providing the Services to the Customer or (ii) in connection with Filed’s internal business purposes. Unless specifically agreed in writing, each Party’s rights under this clause 4(b) extend to any update, adaptation, translation, customization or derivative work of Customer Data, made under this Agreement.

c Feedback. In the event that the Customer provides Filed any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Services (collectively “Feedback”), the Customer agrees that Filed may use the Feedback to modify the Services and that the Customer will not be due any compensation, including any royalty related to the product or service that incorporates the Feedback. The Customer hereby grants Filed a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether the Customer provides the Feedback on the Services or through any other method of communication with Filed.

d Filed knows that privacy is important. For this reason, Filed has created a privacy policy that describes its collection, use and disclosure practices regarding any personal information that Customer provide to Filed. The security of the Customer’s personal information is important to Filed. While there is no such thing as “perfect security” on the Internet, Filed will take reasonable steps to help protect the Customer’s personal information. However, the Customer understands and agrees that such steps do not guarantee that the Services are invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities. Filed reserves the right to cooperate with local, state, provincial and national authorities in investigations of improper or unlawful activities and this may require the disclosure of the Customer’s personal information. Filed may also report to other organizations about improper or unlawful user activities and this reporting may include disclosure of personal information relating to those individuals conducting such improper or unlawful activities.

(5) Customer Data

a Responsibility. The Customer has sole responsibility for the accuracy, appropriateness and completeness of all Customer Data. Filed will use the Customer Data it is provided in performing the Services and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Customer Data.

b Transmission to Recipients. At the Customer’s request and subject to Customer’s payment of any applicable fees, Filed will use reasonable efforts to make certain Customer Data of such Customer available to Representative(s) who have registered with and are using the Services. The Customer hereby authorises Filed to disclose such Customer Data to any Representative to whom Customer authorises. Filed does not control how any Representatives use the Customer Data and has no responsibility for Customer Data that is provided to a Representative. Notwithstanding the foregoing, Filed reserves the right to decline to transmit Customer Data to a specific Representative if Filed believes such transmission would violate this Agreement or any applicable laws (in which case Filed will use reasonable efforts to promptly notify the Customer of such decision). Representatives acknowledge that Filed is merely acting as a passive conduit for such distribution and takes no responsibility for any Customer Data. Filed makes no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility or liability for, the quality, content, nature or reliability of any Customer Data.

c Restrictions. The Customer agrees not to upload or transmit any Customer Data: (i) that the Customer does not have the lawful right to copy, transmit, distribute, and display (including any Customer Data that would violate any confidentiality or fiduciary obligations that Customer might have with respect to the Customer Data); (ii) for which the Customer does not have the consent or permission from the owner of any personally identifiable information contained in the Customer Data; (iii) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights or violates any privacy rights of any third party (including, without limitation, any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (iv) that is false or misleading; (v) that is defamatory, obscene, or offensive; (vi) that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability; or (vii) that contains any viruses, Trojan horses, spyware. malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

d Indemnity. Customer agrees to defend, indemnify, and hold harmless Filed, its employees, officers, directors, affiliates, suppliers, licensors, and other customers against any and all liability (including damages, recoveries, deficiencies, interest, penalties and reasonable attorney’s fees) to third parties (including, but not limited to, any Clients, and the New Zealand government) arising out of or relating to: (a) violation of any applicable law or regulation, (b) Customer Data, (c) Customer’s (or Customer’s Personnel’s) breach of any of its obligations, representations and/or warranties under this Agreement; or (d) Customer’s use of the Services, including in combination with any third party software, application or service.

(6) Term

The term of this Agreement (“Term”) shall commence upon the date the sign-up process is complete and will continue on a month to month basis for so long as Customer is current on all fees due unless or until terminated as permitted under this Agreement. If the Customer has elected to receive 1 free month of financial statements, notwithstanding anything else to the contrary herein, the Term will begin on the date the sign-up process is complete. At the end of the 1 free month upon delivery of the 1 free month of financial statements as communicated by Filed, if the Customer wishes to continue to receive the Services, the Customer must begin paying for the Services.

(7) Customer Support

a Technical Support. During the Term for the applicable Services, and for so long as Customer is current with its payment of all applicable fees, Filed will use commercially reasonable efforts to provide Customer with technical support services relating to the Services via its technical support website, email, or telephone.

b Web Support. Web support shall not include any tax or other professional or expert advice of any kind, including, but not limited to any advice regarding the appropriate handling of tax and accounting issues, or otherwise.

c Service Upgrades and Scheduled Downtime. Filed may update the Services in its sole discretion. Filed may from time to time schedule downtime for maintenance and upgrades.

d Data Storage & Backup. Filed is not responsible for performing, and is not liable for any failure to perform, any back-up of any data (including Customer Data) provided, transmitted, processed, or stored by the Customer in or through the Services. It is the Customer’s responsibility to backup onto the Customer’s own local system all Customer Data, including all data and records that the Customer submits to Filed.

e Call Monitoring. Filed may monitor and record support-related and other outbound calls to Customer, as well as inbound calls to Filed by the Customer or the Customer’s representatives, for compliance, support, training and other purposes. The Customer acknowledges and agrees that Filed may record any call between the Customer and Filed relating to the Service, and agrees to (i) notify all relevant Customer employees that calls with Filed may be monitored and (ii) indemnify and hold harmless Filed from any claim arising as a result of Filed’s monitoring or recording of calls between Filed and the Customer’s representatives.

(8) Fees and Payment

a Fees. Access to the Services may require the Customer to pay fees, as may be further described at https://filed.nz/services/. Before the Customer pays any fees, the Customer will have an opportunity to review and accept the fees that the Customer will be charged. All fees are in New Zealand dollars and are, except as described in this Section 8, non-refundable. If Filed changes the fees for the Services, including by adding additional fees or charges, Filed will provide the Customer advance notice of those changes. If the Customer does not accept the changes, Filed may discontinue providing the Services to the Customer. Filed will charge the payment method the Customer specifies at the time of purchase. The Customer authorises Filed to charge all sums for the Services the Customer selects, to that payment method. If the Customer pays any fees with a credit card, Filed may seek pre-authorization of the Customer’s credit card account prior to the Customer’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover the Customer’s purchase.

b Automatic Credit Card Payments. The Services may include functionality for activating, updating, or cancelling recurring payments for periodic charges. If the Customer activates or updates recurring payments through the Service, the Customer authorises Filed to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or the Customer’s account, all accrued sums on or before the payment due date for the accrued sums. If the Customer uses the Service to update or cancel any existing authorised one-time or recurring payment, it may take up to 10 business days for the update or cancellation to take effect.

c Late Payment. The Customer may not withhold or “setoff” any amounts due hereunder. Filed reserves the right to suspend the Services until all past due amounts are paid in full.

d Certain Taxes. Fees quoted do not include and the Customer shall pay, indemnify and hold Filed harmless from all taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transaction contemplated herein, other than taxes based on the net income or profits of Filed.

e Refunds. In the event of termination of the Services for any reason except for the Customer’s breach, Filed may provide the Customer with a refund of any pre-paid, but unused fees related to such Services, subject to the following: (i) no refund shall be paid for the current month’s services, regardless of the day on which Customer cancels the Services; (ii) Filed will retain and not be obligated to refund any prepaid fees up to and including the amount of fees Customer would have been required under this Agreement to pay for Customer’s use of the Services for the two month period following the effective date of the termination of the Services. Customer is not entitled to any refund for Filed’s termination of the Services based upon Customer’s breach. If Customer purchased access to the Services at a discounted price, any refund will lose the benefit of that discount.

(9) Confidential & Proprietary Information

a Definitions. For purposes of this section, a Party receiving Confidential & Proprietary Information (as defined below) shall be the “Recipient” and the Party disclosing such information shall be the “Discloser” and “Confidential & Proprietary Information” means all information disclosed by Discloser to Recipient during the Term and marked as “confidential” or “proprietary.” The Customer hereby acknowledges that the Service will be considered Confidential and Proprietary Information belonging exclusively to Filed (or its designated third party supplier), and Filed hereby acknowledges that Customer Data will be considered Confidential and Proprietary Information belonging exclusively to the Customer, in each case regardless of whether or not marked as “confidential” or “proprietary.” Discloser’s Confidential & Proprietary Information does not include: (i) information already known or independently developed by Recipient without use of or reference to any Discloser’s Confidential & Proprietary Information; (ii) information in the public domain through no wrongful act of Recipient, or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.

b Covenant. Recipient hereby agrees that during the Term and at all times thereafter it shall not (i) disclose such Confidential & Proprietary Information of the Discloser to any person or entity, except to its own personnel, affiliates or contractors having a “need to know”, as permitted by this Agreement (including Section 5(b)), or to such other recipients as the Discloser may approve in writing, including Representatives; (ii) use Confidential & Proprietary Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential & Proprietary Information of the Discloser any proprietary legend. Recipient shall use at least the same degree of care in safeguarding the Confidential & Proprietary Information of the Discloser as it uses in safeguarding its own confidential information of a similar nature, but in no event shall less than reasonable care. Upon the earlier of Discloser’s written request or termination or expiration of this Agreement, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Discloser) all Confidential & Proprietary Information of Discloser in its possession or control and cease all further use thereof. Filed may retain a copy of such Confidential & Proprietary Information for the sole purpose of and to the extent necessary for it to comply with applicable legal, regulatory, and/or reasonable internal back-up or archival policies and requirements. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential & Proprietary Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that prior to disclosing any Confidential & Proprietary Information due to a legal requirement, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order.

c Injunctive Relief. Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.

(10) No Warranties

a Content from other users, suppliers, advertisers, and other third parties may be made available to the Customer through the Services. Because Filed does not control such content, the Customer agrees that Filed is not responsible for any such content. Filed does not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content, and Filed assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other users, advertisers, and other third parties or violation of any third party rights related to such content. The Services may contain links to websites not operated by Filed. Filed is not responsible for the content, products, materials, or practices (including privacy practices) of such websites. The Customer understands that by using the Site and/or Services the Customer may be exposed to third-party websites that Customer finds offensive, indecent or otherwise objectionable. Filed makes no warranty, representation, endorsement, or guarantee regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites, products or services accessible by hyperlink or otherwise from the Site or Services. Filed provides these links for the Customer’s convenience only and does not control such websites. Filed’s inclusion of links to such websites does not imply any endorsement of the materials on such third party websites or any association with their operators. The Services may contain links to websites that are operated by Filed but which operate under different terms. It is the Customer’s responsibility to review the privacy policies and terms and conditions of any other website the Customer visits. THE CUSTOMER AGREES THAT IN NO EVENT WILL FILED BE LIABLE TO THE CUSTOMER IN CONNECTION WITH ANY WEBSITES, CONTENT, MATERIALS, OR PRACTICES OF ANY THIRD PARTY.

b Warranty Disclaimer. THE SERVICES AND ALL MATERIAL OR CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FILED HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. FILED DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE SERVICES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE FILED ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. THE CUSTOMER ASSUMES ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM THE CUSTOMER’S USE OF OR ACCESS TO THE SERVICES, CUSTOMER’S DEALING WITH ANY OTHER USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES. CUSTOMER UNDERSTANDS AND AGREES THAT THE CUSTOMER USES THE SERVICES, AND USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS MATERIALS OR CONTENT THROUGH THE SERVICES AND ANY ASSOCIATED SITES OR SERVICES, AT CUSTOMER’S OWN DISCRETION AND RISK, AND THAT THE CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO THE CUSTOMER’S PROPERTY (INCLUDING CUSTOMER’S COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OR USE OF MATERIAL OR CONTENT.

c SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND THE CUSTOMER MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION

(11) Limitation of Liabilities

The Parties acknowledge that each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does reflect a fair allocation of risk between the parties, and this allocation of risk forms an essential element of the basis of the bargain between the parties and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section 11 will apply even if any limited remedy fails of its essential purpose.

a Amount. IN NO EVENT WILL FILED BE LIABLE FOR DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT EXCEEDING FEES PAID IN RESPECT OF THE SERVICES AT ISSUE IN THE LAST THREE (3) MONTHS. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL FILED’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

b Type. IN NO EVENT SHALL FILED BE LIABLE TO THE CUSTOMER FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFITS, DATA, USE, OR GOODWILL, (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL FILED BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.

c SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO THE CUSTOMER. TO THE EXTENT THAT FILED MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF FILED’S LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.

(12) Notices

Notices sent to either Party shall be effective when delivered in person or by email, one (1) day after being sent by overnight courier, or two (2) days after being sent by first class mail postage prepaid to the official contact designated below and immediately after being received by the other party’s server. Notices must be in writing and addressed as follows:

a For Filed, addressed to Customer Care at: (i) Filed Ltd, Box 857, Wellington 6140; or (ii) info@filed.nz; and

b For Customer, to the addresses or email address provided by Customer on Sign-up (as such address or email address may be updated by Customer from time to time in accordance with this Agreement).

Filed may change its contact information by giving notice of such change to the Customer. The Customer may change its contact information by using the currently available interfaces on Filed’s website. For contractual purposes, the Customer (i) consents to receive communications from Filed in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that Filed provides to the Customer electronically satisfy any legal requirement that such Communications would satisfy if it were in writing. The Customer’s consent to receive Communications and do business electronically, and Filed’s agreement to do so, applies to all of the Customer’s interactions and transactions with Filed. The foregoing does not affect the Customer’s non-waivable rights. If the Customer withdraws such consent, from that time forward, the Customer must stop using the Services. The withdrawal of the Customer’s consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between Filed prior to the time the Customer withdraws its consent.

You Consent to Receive SMS Text Messages from Us. By providing Filed with the Customer’s mobile telephone number, the Customer consents to receiving text messages at that number as requested for account verification, invitations, and other purposes related to the Service. While Filed does not charge a fee for text messages, the Customer’s carrier may charge standard messaging, data, and other fees. The Customer is responsible for these charges. Filed may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary. Filed is not responsible for the timeliness or final delivery of the message, as this is out of our control and is the responsibility of the cellular telephone operator or other networks.

(13) Termination

a On Notice. Either Party can terminate this Agreement for their convenience by providing the other party with notice of termination prior to the last day of the then current monthly renewal.

b Generally. Either Party may, in addition to other relief, terminate this Agreement if the other Party breaches any material provision thereof and fails within fifteen (15) days after receipt of notice of default to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion. Either Party shall be in default hereof if it becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed or a petition in Bankruptcy is filed with respect to the Party and is not dismissed within thirty (30) days, or, in the case of Customer, for the failure to pay all applicable fees.

c Survival. Upon termination or expiration of this Agreement for any reason: (i) all rights and obligations of both Parties (except for the Customer’s payment of all sums then owing), including all licenses granted hereunder, shall immediately terminate except as provided below; (ii) within thirty (30) days after the effective date of termination, each Party shall comply with the obligations to return or destroy all Confidential Information of the other Party, as set forth in Section 9 (Confidential & Proprietary Information). The following Sections will survive expiration or termination of this Agreement for any reason: the introductory paragraph, Sections (1), (3)(d), (4), (5(d)), (6), (10), (11), (13), and (14).

(14) General Provisions

a  Assignment. The Customer may not assign this Agreement or any of its rights or obligations hereunder to any third party without Filed’s prior written consent. Any assignment in violation of this section shall be void. Filed may assign this Agreement without restriction and without any notice to the Customer. The terms of this Agreement shall be binding upon permitted successors and assigns.

b Applicable Law. This Agreement is governed by the law of New Zealand.

c Right to List As A Customer. The Customer agrees that Filed may utilise the Customer’s entity name in listings of current customers. Use of the Customer’s name in any other marketing materials or press announcements will be submitted to the Customer in advance for approval, and such approval will not be unreasonably withheld.

d Compliance with Export Regulations. Customer has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorisations or approvals; shall indemnify and hold Filed harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. Customer shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.

e European Union Residents. If Customer resides in the European Union (EU) or if any transfer of information between Customer and the Service is governed by the European Union Data Protection Directive or national laws implementing that Directive, then Customer consents to the transfer of such information outside of the European Union to its country and to such other countries as may be contemplated by the features and activities provided by the Service.

f Construction. Except as otherwise provided herein, the Parties rights and remedies under this Agreement are cumulative. The term “including” means “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.

g Force Majeure. The Customer acknowledges and understands that if Filed is unable to provide Services as a result of a force majeure event Filed will not be in breach of this Agreement and will not be liable for delays caused by such event. A force majeure event means any event beyond the control of Filed.

h Severable. NOTHING IN THIS AGREEMENT WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO THE CUSTOMER. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and the validity, legality, and enforceability of all other provisions shall remain in full force and effect.

i Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided in this Agreement or by law in one instance shall not preclude enforcement thereof on future occasions.

j Independent Contractors. The Customer’s relationship to Filed is that of an independent contractor, and neither Party is an agent or partner of the other. The Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Filed.

k Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior agreements, negotiations, or other communications, whether written or oral. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

l Amendments. Filed reserves the right to change this Agreement at any time and from time to time upon notice by posting revisions to this Agreement (including the description of the Services) on Filed’s website. Continued use of the Services after the Customer become aware of any such changes shall constitute the Customer’s consent to such changes. The Customer is responsible for regularly reviewing the most current version of this Agreement which is available on Filed’s website