Terms & Conditions

Version 1.0

Last Updated: June 2026

EngineeringX Terms and Conditions (BETA)

Except to the extent agreed otherwise in writing by EngineeringX, these terms and conditions (Terms and Conditions) apply to the provision of the Solution and the Services by EngineeringX Limited (EngineeringX) to the entity identified in the Order Form (Customer) and to any use of the Solution and the Services. EngineeringX and Customer are referred to in these Terms and Conditions each as a Party and together as the Parties. By using the Solution and receiving the Services, Customer agrees to be bound by these Terms and Conditions. If Customer does not agree to be bound by these Terms and Conditions, Customer must stop using the Solution and the Services immediately. Capitalised terms (unless otherwise defined in the body of these Terms and Conditions) are defined in clause 20 below.

A. The Solution – in BETA

(a) Customer acknowledges that the Solution is currently in a beta testing stage and, as such, may contain errors, defects, and/or incomplete features. To the maximum extent permitted by law, EngineeringX provides the Solution on an “as is” basis during this beta testing stage and does not provide any warranties, representations, or conditions, including as to functionality or performance. EngineeringX’s obligations under clause 2 shall apply on a reasonable efforts basis only in the context of a beta testing offering.

(b) Upon conclusion of the beta testing stage, Customer’s subscription will automatically transition to the generally available version of the Solution (or its equivalent production release). If Customer does not wish to continue after such transition, Customer may terminate in accordance with these Terms and Conditions.

1. Term

1.1 The Agreement, the subscription to the Solution, and any Support, starts on the Commencement Date and will continue until terminated in accordance with the Agreement.

1.2 Unless terminated in accordance with the Agreement: the subscription to the Solution, and any Support, continues for the Initial Term; and at the end of the Initial Term, the subscription to the Solution will automatically renew on a month by month basis (each a Renewal Term),

1.3 EngineeringX shall use reasonable efforts to perform the Services within any timeframe agreed in writing between the Parties or, if no such timeframe is agreed, within a reasonable time.

2. The Solution and Services and EngineeringX Obligations

2.1 Subject to payment of all Fees due and payable and Customer’s compliance with the Agreement, EngineeringX will, during the Term and on a non-exclusive basis:

(a) provide the Solution identified in the Order Form for access and use by End Users;

(b) make available the Documentation to Customer solely for use in connection with the Solution; and

2.2 Customer is permitted to use the Solution in relation to its business located in the Territory.

2.3 The Solution may be made available to Customer in multiple formats, including a downloadable desktop application and/or a web-based interface. Unless expressly stated otherwise, all references to the “Solution” in the Agreement shall be deemed to include any and all such formats, and all terms, conditions, restrictions, and obligations applicable to the Solution shall apply equally to each format. Customer acknowledges that:

(a) the formats may differ in functionality, performance, and availability;

(b) EngineeringX may release updates, enhancements, or new features to any version independently; and

(c) different formats may be made available and operate in parallel during the Term, and Customer and its End Users may access and use either or both versions concurrently, subject to the terms of the Agreement.

2.4 All rights, title and interest in and to the Solution and Services, not expressly granted to Customer under the Agreement, are reserved by EngineeringX.

2.5 EngineeringX will use reasonable efforts to ensure that:

(a) the Solution performs substantially in accordance with the Documentation, subject to clause 2.6 and clause 2.7; and

(b) the Services are performed with reasonable skill and care.

2.6 If a material error or material defect in the Solution is discovered by EngineeringX or notified to EngineeringX by Customer, EngineeringX shall use reasonable commercial efforts to rectify the error or defect according to the severity of the impact. Where the error or defect is notified by Customer, EngineeringX's obligation to rectify shall be conditional upon Customer providing sufficient information and evidence to enable EngineeringX to reproduce the error or defect, such as by a demonstration or by screenshots. Errors or defects causing an outage or serious degradation to the Solution will be prioritised. Errors or defects of a minor or cosmetic nature will be deprioritised and EngineeringX may determine that rectification is not necessary. Workarounds may be provided to overcome the severity of errors and defects.

2.7 EngineeringX may release modifications or enhancements to the Solution from time to time, and in some cases, discontinue features. Where changes are significant, EngineeringX will endeavour to notify Customer (for example, by email). If EngineeringX changes the fundamental nature of the Solution in a detrimental way, Customer shall be entitled to terminate the Agreement on notice to EngineeringX effective no earlier than the date that those changes come into effect and shall be entitled to a pro rata refund of any pre-paid fees in respect of the unused period of the Term.

2.8 Customer acknowledges that:

(a) delivery of the Solution involves the use of third-party service providers and systems, which EngineeringX does not control; and

(b) EngineeringX cannot guarantee that access to and/or use of the Solution will be uninterrupted or error-free.

2.9 Customer acknowledges that it is entering into the Agreement with EngineeringX and that Customer has no direct relationship with any EngineeringX suppliers. Customer will not attempt to bring any action against any EngineeringX suppliers in relation to the Solution or the Services. This clause is for the benefit of those suppliers, however EngineeringX may change these Terms and Conditions without any requirement to obtain consent from those suppliers.

2.10 Where EngineeringX provides Support, EngineeringX is not obliged to provide support for Customer equipment, software or networks, or issues caused by Customer’s failure to follow EngineeringX instructions.

3. Customer Set-Up Obligations

3.1 Customer is solely responsible for obtaining all computing and telecommunications hardware, software, and services necessary to enable Customer and the End Users to access and use the Solution in accordance with the relevant specifications advised to Customer by EngineeringX from time to time (usually a computer with web browser and an Internet connection).

3.2 Customer shall contribute any inputs required of it in a timely manner. If Customer is responsible for a delay that affects EngineeringX’s ability to perform its obligations, EngineeringX shall be afforded an extension of time against any agreed timetable for performance of those obligations commensurate with that delay. For clarity, any Customer delay shall not affect the Commencement Date of the subscription to the Solution and the Support.

3.3 Unless agreed otherwise on the Order Form, Customer is responsible for uploading any Customer Data into the Solution.

3.4 Customer is permitted to allow End Users to access and use the Solution. Any person who is not an End User must not be granted access to or use of the Solution by Customer or any End User. Customer must advise End Users that their use of the Solution must be in compliance with the Acceptable Use Policy and Fair Use Policy (which Customer must make End Users aware of) and Customer shall ensure that End Users comply with the Acceptable Use Policy, the Fair Use Policy and the Agreement.

3.5 Customer is responsible for all acts and omissions of End Users, and those accessing the Solution through Customer, and must procure that each of the End Users establishes and maintains a secure password for the purpose of accessing and using the Solution.

4. Data and Privacy

4.1 Each Party shall comply with all Privacy Law applicable to it in relation to the collection, processing and storing of Personal Information in connection with the Agreement.

4.2 Any Personal Information collected, processed and used by EngineeringX in connection with the provision of the Solution or Services will be handled in accordance with EngineeringX’s privacy policy, which will be made available to Customer (which may be via EngineeringX’s website).

4.3 The Parties acknowledge and agree that EngineeringX holds Customer Data solely on behalf of Customer, and EngineeringX will not use Customer Data for any purpose other than to provide the Solution and Services to Customer and perform its obligations under the Agreement, except as expressly permitted under clauses 4.8 and 4.9.

4.4 EngineeringX shall implement and maintain reasonable security safeguards to protect against loss, misuse or unauthorised access, use, modification, or disclosure of Customer Data in its possession or control in connection with the Agreement, subject to clause 11.

4.5 Customer warrants on an ongoing basis that it has provided the appropriate notifications and obtained the necessary consents (including notifications to and consents from End Users) to allow EngineeringX to collect, process, host, and use information, data and materials (including Confidential Information, Personal Information, and Customer Data) in accordance with the Agreement. Customer indemnifies and holds EngineeringX harmless from and against any and all claims, loss, or liability suffered or incurred by EngineeringX as a result of such collection, processing, storage or use where Customer did not have the necessary consents for EngineeringX to collect, process, or use such information, data and materials.

4.6 Customer grants EngineeringX (or shall procure, as applicable) a royalty free, sub-licensable licence during the Term to collect, host, process and use information, data and materials (including Confidential Information, Personal Information, and Customer Data) in accordance with the Agreement, for the purposes of providing the Solution and the Services and performing its obligations under the Agreement.

4.7 Customer:

(a) is solely responsible for all Customer Data, including the nature, quality, legality, integrity and accuracy of Customer Data and the means by which it acquired Customer Data;

(b) is solely responsible for maintaining copies / back-ups of Customer Data entered into the Solution.

4.8 Customer acknowledges that EngineeringX may collect data and other information about the use of the Solution and Services by Customer or End Users for the purposes of conducting marketing activities for promotion of EngineeringX and EngineeringX’ products, statistical analysis and gaining market insights, provided such data and information does not include Confidential Information or Personal Information.

4.9 Customer acknowledges and agrees that EngineeringX may use Customer Data (excluding Personal Information and Confidential Information) and the aggregated, anonymised usage and telemetry data (as described in clause 4.8) to train, improve, and develop its machine learning models, AI models, and algorithms that form part of the Solution.

5. Acceptable Use Policy and Fair Use Policy

5.1 Customer must not, and shall procure that each of the End Users do not:

(a) as relates to Customer Data, submit and/or upload to the Solution, or provide to EngineeringX Customer Data that:

(i) are defamatory;

(ii) violate any third-party’s rights of privacy;

(iii) contain, or comprises, an infringement of any third-party Intellectual Property Rights;

(iv) contain any Malicious Code; or

(v) contain any objectionable or illegal content;

(b) use the Solution in any way that is illegal;

(d) attempt to copy, modify, translate, or create derivative works of the Solution;

(e) reverse engineer, decompile or disassemble, or otherwise derive (or attempt to derive) the source code, source files, or structure of the software contained in the Solution (including any desktop application or cloud-based components), except to the extent permitted by non-waivable law;

(f) attempt to disable, circumvent, or interfere with any security, licensing, or usage control mechanisms embedded in the Solution;

(g) access the Solution to build a Solution or service which competes with all or any part of EngineeringX’s business;

(h) interfere with or cause interruption, damage or unintended effects to the Solution, including its software, computing systems or networks;

(i) introduce any Malicious Code into the Solution or otherwise undermine the security of the Solution; or

(j) engage in, attempt, or facilitate any form of social engineering (including phishing, pretexting, impersonation, or other deceptive techniques) directed at EngineeringX's personnel, systems, or third-party service providers, whether for the purpose of obtaining unauthorised access to the Solution, Confidential Information, or any other information or systems.

Any breach of this clause shall be deemed a material breach of the Agreement and may result in immediate suspension or termination of access to the Solution, without prejudice to EngineeringX’s other rights or remedies under these Terms and Conditions or at law.

5.2 If Customer, or any of the End Users, becomes aware of or suspects any actual or threatened breach of the Acceptable Use Policy, or of any malfunction of the Solution, Customer must, and must procure the End Users, promptly notify EngineeringX of any such actual or threatened breach or malfunction. Customer shall:

(a) assist EngineeringX with investigating any actual or alleged breach of the Acceptable Use Policy or any malfunction of the Solution; and

(b) take all reasonable and lawful measures within Customer’s control that are necessary and/or requested by EngineeringX to stop the actual or threatened breach or malfunction and to mitigate its effects, including removing certain Customer Data from the Solution.

5.3 Customer acknowledges that EngineeringX may, in addition, take all necessary steps to remove or disable access to certain Customer Data in relation to any suspected, threatened or actual breach of the Acceptable Use Policy or in relation to any malfunction of the Solution.

5.4 Customer may use, reproduce, modify and distribute the Output for any purpose in connection with its business, including for design, analysis, reporting, and decision-making. EngineeringX makes no claim to ownership of the Output, and all rights in the Output vest in Customer upon generation. EngineeringX shall not restrict or interfere with Customer’s use of the Output, provided such use complies with Applicable Law.

5.5 Customer shall use the Solution and its features in a manner consistent with fair and reasonable use. EngineeringX may publish and update a fair use policy from time to time, which sets out usage thresholds and guidelines for features included in Customer's subscription.

5.6 If Customer's usage materially exceeds what EngineeringX considers to be fair and reasonable use (having regard to the nature of Customer's subscription), EngineeringX may notify Customer and, if the excessive usage continues, may apply additional charges or restrict access to the affected features.

6. Fees and Payment

6.1 Customer shall pay all Fees in accordance with this clause 6.

6.2 The Fees, as at the Commencement Date, are set out in the Order Form for the Solution subscription and Support.

6.3 Unless otherwise stated in an Order Form, Fees for the subscription to the Solution and Support are payable annually in advance for each year of the Initial Term (and that is payable on or before the Commencement Date and anniversary of the Commencement Date) and for any Renewal Term, it is payable monthly in advance. Customer shall pay any other Fees that are due and payable within 30 days of the date of the invoice.

6.4 The basis of charging (for example, by number of End Users) is set out on the Order Form. The initial numbers, as at the Commencement Date, shall be specified on the Order Form. Customer shall report additional numbers (for example, increased number of End Users) to EngineeringX as changes occur. Customer acknowledges that EngineeringX may audit the relevant numbers by undertaking checks of Customer’s account within the Solution. EngineeringX will invoice for such additional usage for the period from the date that the increase occurs to the end of the relevant Contract Year (if in the Initial Term) or month to date, on a pro rata basis. Subject to the minimum Fees described on the Order Form, Customer may submit reassessed numbers at least 45 days before the next Renewal Term (if any) and EngineeringX will invoice for such period based on those numbers.

6.5 Customer acknowledges that certain features of the Solution operate on a credit-based system, as further described in the Order Form. Credits are consumed on a per-use basis. Customer's use of such features is subject to the credit allocation purchased by Customer. If Customer exhausts its credit allocation, access to credit-based features may be restricted until additional credits are purchased.

6.6 Any request for Support in excess of the monthly cap will be charged on a time and materials basis at EngineeringX’s then current rates and any reasonable expenses incurred, in 15 minute blocks, or as set out in the Order Form.

6.7 All amounts and Fees stated or referred to in the Agreement:

(a) shall be payable in New Zealand dollars to the address or account specified in the invoice or otherwise advised by EngineeringX; and

(b) are stated exclusive of any applicable GST or other Taxes.

6.8 Customer is responsible for paying all Taxes associated with its purchase of the Solutions and Services, excluding taxes based on EngineeringX’s net income. If EngineeringX has the legal obligation to pay or collect Taxes for which Customer is responsible under this clause, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides EngineeringX with a valid tax exemption certificate authorised by the appropriate taxing authority.

6.9 EngineeringX may apply a service charge of 1% per month or the highest lawful interest rate (whichever is lower) to all Fees not paid when due and may recover any debt collection costs from Customer, on an indemnity basis.

6.10 EngineeringX may increase the Fees, including the minimum Fees specified on the Order Form, no more than once per annum by a maximum of NZ CPI (as published by Statistics New Zealand) plus 3% after the expiry of the Initial Term by providing not less than 90 days’ prior written notice to Customer. EngineeringX may increase the Fees by more than such a maximum from the commencement of a Renewal Term, provided that EngineeringX provides Customer not less than 120 days’ notice of the increase and if Customer does not wish to pay the increased Fees, it may terminate the Agreement on not less than 90 days’ notice prior to the commencement of the Renewal Term. If Customer does not terminate the Agreement in accordance with this clause, it is deemed to have accepted the increased and/or new Fees.

6.11 Except as expressly set out in the Agreement, all Fees are non-refundable.

7. Suspension

7.1 Without prejudice to any other right or remedies it may have, EngineeringX shall be entitled to suspend Customer’s subscription to use the Solution and/or End User’s access to and use of the Solution, immediately and without notice in the event that EngineeringX determines, in its opinion exercised reasonably and in good faith that:

(a) Customer has failed to pay the Fees by the date due for payment and has failed to pay the Fees within seven further days of a payment reminder;

(b) Customer or any of the End Users has failed to comply with the Acceptable Use Policy or the Fair Use Policy;

(d) the Solution or Customer Data may fail to comply with Applicable Law or infringe third-party rights or are being used in a manner that threatens the security, integrity or availability of the Solution or Customer Data;

(e) the Solution or Customer Data has been accessed, used or manipulated without EngineeringX’s prior written consent;

(f) suspension is necessary to protect other customers or users of the Solution or the reputation of EngineeringX;

(g) suspension is required by EngineeringX’s third-party service providers; and/or

(h) suspension is required by Applicable Law or an order of any court with jurisdiction.

7.2 Where the reason for any suspension is remedied to EngineeringX’s satisfaction, EngineeringX shall reinstate access to the Solution.

7.3 EngineeringX shall also be entitled to suspend access to the Solution from time to time in order to perform routine maintenance, emergency maintenance, updates, upgrades, or changes. EngineeringX will use its reasonable efforts to provide advance notice of any scheduled downtime.

7.4 If EngineeringX suspends access to the Solution, other than due to the fault or cause of Customer or its End Users, for a period exceeding five Business Days then EngineeringX will on request made within 30 days of the suspension refund to Customer a pro-rata portion of the amount paid in advance for the period of such suspension.

8. Audit

8.1 EngineeringX has the right (by itself or through its reasonable representatives) during the Term and for 12 months following to audit Customer, on at least 10 Business Days’ notice and during normal business hours, to verify whether Customer is or was complying with the Agreement. Customer shall provide EngineeringX with access to such personnel, premises, systems and records reasonably requested by EngineeringX for the purposes of the audit.

8.2 Nothing in this clause limits EngineeringX from undertaking checks within the Solution as permitted by clause 6.4.

9. Intellectual Property

9.1 Customer acknowledges that all Intellectual Property Rights in the Solution and the Documentation, will remain both during the Term and thereafter the property of EngineeringX and/or its licensors. No other licenses or rights are granted by implication or otherwise.

9.2 Nothing in these Terms and Conditions limits Customer’s ownership of any pre-existing Intellectual Property Rights in Customer Data and any other Intellectual Property Rights EngineeringX agrees in writing are owned by Customer (Customer IP) or Customer’s rights to use Customer IP outside of the Solution.

9.3 Where Customer or its End Users provide any feedback to EngineeringX, EngineeringX shall be entitled to use that feedback, without restriction or acknowledgement, and EngineeringX shall be the sole owner of any resulting Intellectual Property Rights.

10. Confidentiality

10.1 Each Party confirms that, unless it has the prior written consent of the other Party, it shall:

(a) keep confidential at all times the Confidential Information of the other Party;

(b) except that it may disclose the other Party’s Confidential Information to its employees, contractors, or professional advisors on a need to know basis only and, in that case, ensure that any employee, contractor, or professional advisor to whom it discloses the other Party's Confidential Information is aware of, and complies with, the provisions of clause 10.1(a); and

(c) keep confidential all case studies using the names/logos of the other Party (anonymous case studies being permitted) and make no public announcements mentioning by name the other Party.

10.2 The obligation of confidentiality in clause 10.1 does not apply to any disclosure or use of Confidential Information:

(a) which is publicly available through no fault of the recipient of the Confidential Information or its personnel or professional advisers;

(b) which was rightfully received by a Party to the Agreement from a third-party without restriction and without breach of any obligation of confidentiality; or

(d) by EngineeringX if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third-party, provided that EngineeringX enters into a confidentiality agreement with the third-party on terms no less restrictive than this clause 10.

10.3 Each Party (as relevant) will delete, destroy or return all Confidential Information of the other within a reasonable time following a request to do so. However, each Party may retain copies to the extent: (i) required by law or regulation or (ii) required to support the enforcement of a Party’s rights, or to defend a claim, under the Agreement.

11.Security

11.1 EngineeringX endeavours to ensure that the hosting provider for the Solution will take appropriate and reasonable steps to keep Customer Data safe from unauthorised access, use or disclosure. However, it is not possible to guarantee that Customer Data will be completely secure at all times.

11.2 Customer must not undertake penetration testing at any time or use the hosting provider’s services in a manner
which is intended to induce poor performance or failure of those service provider’s services.

12.Third Party Software or Service

12.1 The Solution may link to other websites or systems over which EngineeringX has no control. Any such links are for convenience only, and EngineeringX is not liable in connection with the use of any such website or systems or their content.

13. Warranties

13.1 Each Party warrants to the other that it has the right and power to:

(a) enter into the Agreement;

(b) perform its obligations in accordance with the Agreement; and

13.2 Each Party warrants to the other that it shall comply with Applicable Law relevant to its performance under the Agreement.

13.3 EngineeringX does not warrant (and Customer acknowledges and agrees) that the provision and use of the Solution will be uninterrupted or error-free.

13.4 Customer acknowledges and agrees that to the maximum extent permitted by law, and except as otherwise expressly set out in the Agreement, the Solution is provided “as is” and all other conditions, warranties or other terms which might have effect between the Parties or be implied or incorporated into the Agreement, any Order Form or any collateral contract, whether by statute, common law or otherwise, are excluded, including any implied conditions, warranties or other terms as to satisfactory quality, merchantability, fitness for purpose, title, non-infringement or the use of reasonable skill and care.

13.5 Customer acknowledges and agrees that it and it only is and remains responsible for professional engineering judgement, compliance with standards, and approvals associated with its use of any Outputs. The Outputs are indicative only and not final design or advice. Customer acknowledges and agrees that the Solution is designed to generate Outputs based on inputs provided by Customer or its End Users, and that EngineeringX does not validate, verify, or certify the accuracy, completeness, or suitability of any inputs or Output. Outputs are generated using AI and as such may be inaccurate, incomplete or inappropriate. EngineeringX does not warrant the accuracy, reliability or fitness for any particular purpose of the Outputs. Customer is solely responsible for reviewing, validating, and approving the inputs and the Outputs before relying on it or them for any purpose, including design, engineering, or decision-making. EngineeringX is not liable for any consequences arising from Customer’s use of the Output, and Customer assumes full responsibility for all outcomes resulting from its use of the Solution and the Output.

14. Force majeure

14.1 EngineeringX shall not be liable to Customer for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure.

14.2 Where EngineeringX is affected by Force Majeure it shall:

(a) promptly notify Customer and provide reasonable information about the Force Majeure;

(b) use reasonable efforts to overcome the Force Majeure; and

15. Liability

15.1 Nothing in the Agreement shall exclude or limit either Party’s liability to the extent that such liability may not be excluded or limited as a matter of Applicable Law. This clause 15.1 takes precedence over anything to the contrary in this clause 15.

15.2 The exclusions and limitations in this clause 15 apply to EngineeringX’s liability in contract, tort (including negligence), equity, breach of statutory duty, under an indemnity, or otherwise, in relation to any matter arising out of or in connection with the Agreement.

15.3 EngineeringX shall not be liable for: (i) loss of profits, revenue, business or goodwill; (ii) loss of anticipated savings; (iii) costs of procuring substitute services; (iv) business interruption; (v) loss of data (except that EngineeringX shall be liable to restore data from back-ups provided by Customer); (vi) regulatory fines; or (vii) special, indirect, consequential, incidental, or punitive loss, in each case suffered by Customer and/or any End User in connection with the Solution or the Services even if such loss was reasonably foreseeable.

15.4 Any liability of EngineeringX to Customer for loss or damage of any kind will be reduced to the extent that loss or damage was caused or contributed to by or on behalf of Customer (including its End Users).

15.5 EngineeringX’s liability under and in connection with the Agreement is limited to the amount paid by Customer for the relevant Solution or Service to which the issue relates.

15.6 EngineeringX’s total aggregate liability in any 12-month period is limited to the total Fees paid by Customer and received by EngineeringX for the relevant Solution or Service to which the issue relates during the 12 months immediately preceding the date of the event or first event in a series of events giving rise to the liability.

16. Indemnity

16.1 EngineeringX indemnifies Customer against final damages awarded against Customer by a court of competent jurisdiction that arise from a third-party claim that EngineeringX’s provision of the Solution, the Services or the Documentation infringes that third-party’s Intellectual Property Rights (Third Party IP Claim). If Customer wishes to rely on this indemnity, Customer must use and have been using the Solution and the Services in accordance with the Agreement, immediately notify EngineeringX of the Third Party IP Claim made or threatened, make no admission of liability nor settle any claim without EngineeringX’s prior written consent, allow EngineeringX to conduct the defence or settlement of the claim, and fully co-operate with EngineeringX in relation to any such claim. In no event shall EngineeringX be liable to Customer to the extent that the alleged infringement is a result of:

(a) any portion of the Solution supplied by a third-party to EngineeringX, other than the EngineeringX software;

(b) Customer’s breach of the Agreement;

(c) modification of all or part of the Service (other than by EngineeringX) in a manner not contemplated by the Documentation;

(d) the combination of all or part of the Solution with other Solutions or technology not supplied by EngineeringX;

(e) Customer’s or any End User’s use of the Solution or the Services in a manner contrary to the instructions given by EngineeringX, or these Terms and Conditions; or

(f) Customer’s use of the Solution or the Services after notice of the alleged or actual infringement from EngineeringX or any appropriate authority.

16.2 Customer will indemnify and hold harmless EngineeringX and its affiliates, subcontractors and suppliers against all costs, liabilities, losses and expenses (including legal costs on an indemnity basis) that EngineeringX or any of its affiliates, subcontractors or suppliers incur or suffer arising out of or in connection with:

(a) a breach by Customer of clause 4 and/or clause 5 of these Terms and Conditions; and/or

(b) any breach by Customer or any End User of Applicable Law.

17. Termination

17.1 Without affecting any other right or remedy available to it, a Party may terminate the Agreement with immediate effect by giving written notice to the other Party if the other Party:

(a) commits a material breach of the Agreement which breach is not capable of remedy or (if such breach is capable or remedy) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or

(b) is subject to an Insolvency Event.

17.2 Without affecting any other right or remedy available to it, Customer may terminate the Agreement with immediate effect by giving 10 days’ written notice to EngineeringX if an event of Force Majeure prevents EngineeringX from providing the Solution for more than 60 days.

17.3 Without affecting any other right or remedy available to it, EngineeringX may terminate the Agreement, in whole or (where practicable) in part, with immediate effect by giving written notice to Customer if:

(a) Customer fails to pay any undisputed amount due under the Agreement on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment; or

(b) any event that gives rise to suspension pursuant to clause 7 (other than non-payment which is addressed above) continues or is likely in EngineeringX’s opinion to continue for any continuous period of 30 days without being remedied to the reasonable satisfaction of EngineeringX; or

(d) EngineeringX’s arrangement with a third-party provider who provides any input into the Solution or the Services terminates or materially changes; or

(e) the Agreement becomes illegal or contrary to any law, regulation, guideline or request of any regulatory authority.

EngineeringX will endeavour to provide Customer with reasonable prior notice of any such termination, but may not be able to do so if the triggering event is under the control of a third-party.

17.4 On termination of the Agreement for any reason:

(a) the Order Form shall immediately terminate;

(b) Customer shall immediately pay all outstanding invoices and pay any amounts due and payable for the Solution and the Services received prior to termination;

(c) all subscriptions and licences granted under the Agreement shall immediately terminate and Customer shall immediately cease all use of the Solution and shall cease allowing End Users to access and use the Solution;

(d) EngineeringX shall be entitled to immediately cease providing the Solution and the Services;

(e) EngineeringX may destroy or otherwise securely dispose of any of Customer Data in its possession in accordance with this clause unless EngineeringX receives, no later than 10 days after the effective date of the termination of the Agreement, a written request for the delivery to Customer of a copy of Customer Data in the possession of EngineeringX. Customer may also notify EngineeringX that it wishes EngineeringX to destroy or otherwise securely dispose of any of Customer Data in its possession. Except where prohibited by law, EngineeringX shall use reasonable commercial efforts to deliver to Customer or dispose of such Customer Data within 30 days of its receipt of such a written request, provided that Customer has, at that time, paid all Fees outstanding at and resulting from termination. Customer shall pay all reasonable expenses incurred by EngineeringX in returning or disposing of Customer Data. However, Customer acknowledges that Customer Data may exist in the back-ups and archives of EngineeringX’s third-party hosting provider and that complete destruction and disposal is subject to the data deletion policies of that third-party; and

(f) any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.

17.5 If the Agreement is terminated, other than due to the fault or cause of Customer or its End Users, Customer shall be entitled to a pro rata refund of any pre-paid fees in respect of the unused period of the Term.

17.6 Any provision of the Agreement which is either expressed to survive termination or by implication ought reasonably to survive termination shall so survive the expiry or
termination of the Agreement, including clauses 4, 6, 8, 9 10, 13, 15, 17, and 19.

18. Amendment to the Agreement

18.1 EngineeringX may change these Terms and Conditions from time to time and will make them available on its website at www.engineeringx.co.nz/termsandconditions. EngineeringX will endeavour to provide reasonable prior notice of the changes that EngineeringX considers to be material to customers, but may not be able to do so if the triggering event is under the control of a third-party (such as a third-party provider of an input into the Solutions and Services).

18.2 Where the changes to the Terms and Conditions are onerous to Customer, Customer shall be entitled to terminate the Agreement by giving written notice to EngineeringX, provided that:

(a) Customer must issue its termination notice within 30 days from the date that the changes are notified; and

(b) termination will be effective no earlier than the date the changes come into effect,
in which case Customer shall be entitled to a pro rata refund of any pre-paid fees in respect of the unused period of the Term.

18.3 If Customer continues to use the Solution or the Services after an amendment takes effect, Customer is deemed to have accepted the changes to the Terms and Conditions and the Solution subscription will continue on the updated Terms and Conditions.

19. General

19.1 Notices to EngineeringX must be sent by email to info@engineeringx.co.nz or to any other email address notified to Customer by EngineeringX. EngineeringX may contact Customer by email, post or personal delivery to the most recent email, postal or physical address Customer has provided to EngineeringX.

19.2 A notice given in accordance with clause 19.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received if sent by email, at the time and date at which the sender's email system records that the email was successfully delivered to the recipient.

19.3 The Agreement constitutes the entire agreement and understanding between Customer and EngineeringX in relation to the Solution and the Services. Customer acknowledges that in entering into the Agreement it has not relied on any representations made by EngineeringX that are not expressed in the Agreement. This clause will not be construed as excluding either Party’s liability for fraudulent misrepresentations.

19.4 Customer warrants that it is acquiring access to the Solution and Services in trade. As Customer is acquiring access to the Solution and Services in trade, the guarantees implied by the Consumer Guarantees Act 1993 are expressly excluded and Customer and EngineeringX agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986 to the extent necessary to permit the inclusion of this clause.

19.5 Customer acknowledges and agrees that it is entering into the Agreement, and subscribing to the Solution and Services, on the basis of the current functionality and features of the Solution as at the Commencement Date. Customer confirms that it has not relied on any statements, representations, or expectations regarding future enhancements, developments, or improvements to the Solution or Services. EngineeringX makes no commitment or warranty that any such future improvements will be made available, and any such improvements shall be at EngineeringX’s sole discretion.

19.6 Neither Party may, without the other’s prior consent, assign, transfer or otherwise deal in any way with (or attempt to do any such thing) the benefit of, or any of Customer’s rights or obligations under, the Agreement. However, EngineeringX may assign the rights and obligations under the Agreement to an affiliate or in connection with a reorganisation, merger, or sale of assets.

19.7 Customer agrees that it is and will remain solely responsible and liable for its End Users and any person accessing or using the Solution or receiving the Services through Customer.

19.8 EngineeringX may use subcontractors and hosting providers. EngineeringX will remain solely responsible and liable for its subcontractors.

19.9 Any variation to the Agreement must be agreed in writing by the Parties, except as otherwise provided for in the Agreement.

19.10 No right, power or remedy provided by law or under the Agreement will be waived, impaired or precluded by any delay or omission to exercise it.

19.11 If any provision in the Agreement is lawfully illegal, unenforceable or invalid, it may be severed and the determination will not affect the remainder of the Agreement which will remain in force.

19.12 The Agreement is governed by New Zealand law.

19.13 Should any dispute arise between the Parties, the Parties will attempt to resolve it in good faith by negotiation. If the dispute is not resolved through negotiation, the New Zealand courts will have non-exclusive jurisdiction over all claims that may arise out of or in connection with the Agreement.

20. Definitions and interpretation

20.1 The definitions and rules of interpretation in this clause apply in the Agreement.

Agreement means these Terms and Conditions (including the preamble) and any and all Order Form(s).

Acceptable Use Policy means the terms of clause 5.1 and any other acceptable use policy provided within the Solution (if applicable), as updated from time to time.

Applicable Law means all laws and regulations and binding codes of practice applying to the person or circumstances in question including any standards or rules imposed by any governmental or regulatory authorities.

Business Days means a day that is not a Saturday, Sunday, bank holiday or public holiday in Auckland, New Zealand.

Commencement Date means the date specified as such on the Order Form, which is the date that the Solution, and/or the Services as the case may be, shall be made available to Customer.

Confidential Information means information in any form, whether oral or written, of a business, financial or technical nature which ought reasonably to be known to be confidential and which is disclosed by either Party in the course of the Agreement.

Contract Year means the 12-month period starting on the Commencement Date or the anniversary of the Commencement Date as the case may be.

Customer Data means data, drawings, information, material and/or content owned by or licensed to Customer and provided by Customer to EngineeringX, or uploaded by Customer as a result of using or accessing the Solution, and includes Personal Information collected by Customer from End Users and stored within the Solution.

Documentation means any system flow charts, instructions or other material provided to Customer by EngineeringX, other than marketing material, that sets out a formal description of the Solution and the user instructions for the Solution as updated from time to time.

End User means an individual who is authorised by Customer to access the Solution on behalf of Customer for Customer’s internal business purposes.

Fair Use Policy means the terms of clause 5.5.

Fees means the fees payable by Customer to EngineeringX for the Solution and the Services as set out in the relevant Order Form, or as otherwise contemplated in the Terms and Conditions, as updated from time to time in accordance with these Terms and Conditions.

Force Majeure means circumstances beyond EngineeringX’s reasonable control.

GST has the meaning given to that term in the Goods and Services Tax Act 1985.

Insolvency Event means that a Party:

(a) is removed from the companies register or has a liquidator, receiver, administrator or statutory manager appointed or any equivalent worldwide;

(b) becomes (or is deemed to be) insolvent or is unable to pay its debts when they become due or is presumed under statute to be unable to pay its debts;

(c) makes or proposes any assignment to, or enters into any arrangement for the benefit of, all or some of its creditors (other than for the purposes of a solvent restructuring); or

(d) is subject to any other event that has similar effect to any of the events described in (a) to (c) in this definition.

Intellectual Property Rights means copyright and all other legal and beneficial intellectual and industrial property rights (including patents, design rights (whether registered or unregistered), trade marks (whether registered or unregistered), database rights, domain or company names, know-how or other proprietary rights (whether or not any of these are registered and including any application for registration) and confidential information) whether created before or after the commencement of the Agreement and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.

Initial Term means, unless otherwise specified on the Order Form, the period beginning on the Commencement Date and continuing for two years.

Malicious Code means code, files, scripts, agents or programs intended to do harm, including viruses, worms, time bombs and Trojan horses.

Order Form means any order for the provision of Solutions or Services agreed in writing between Customer and EngineeringX incorporating these Terms and Conditions.

Output means design files, reports, or other materials generated by the Solution, usually in PDF format, based on the inputs provided by Customer and/or its End Users.

Personal Information has the meaning given to that term in the New Zealand Privacy Act 2020.

Privacy Breach means any unauthorised or accidental access to, or disclosure, alteration, loss, or destruction of Personal Information, or an action that prevents a Party from accessing Personal Information on either a temporary or permanent basis.

Privacy Law means any applicable statute, regulation, subordinate legislation or the common law and in force from time to time that the Parties are subject to and includes the New Zealand Privacy Act 2020, and any applicable codes or practice, directive, orders, guidelines or other requirement of any regulator having the force of law.

Renewal Term has the meaning given to it in clause 1.2.

Services means the support services described on the relevant Order Form or in these Terms and Conditions as the case may be.

Solution means EngineeringX’s Software-as-a-Service AutoRoads Design product including use of its design capability, models, algorithms, machine learning, and AI models. However, for clarity, permission to access and use the Solution does not include access to any source code or any of the underlying models, algorithms, machine learning, AI models, or training data.

Support means those support services provided in accordance with the subscription tier selected on the Order Form. Standard Support is included with all subscriptions which comprises assistance by email to manage any reasonable questions or technical issues that Customer may have. Premium Support, if purchased, provides for enhanced service levels and response times. Professional services or consulting outside the scope of standard or premium support will be quoted separately on a time and materials basis.

Taxes any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including goods and services, value-added, use or withholding taxes.

Term means the Initial Term and any subsequent Renewal Term.

Territory means the location in which Customer may use the Solution, as stated on the Order Form.

20.2 In the Agreement:

(a) the singular includes the plural and vice versa;

(b) a person includes its agents, successors and permitted assigns;

(c) a reference to hours, days, weeks, months or years means hours, calendar days, weeks, months or years, New Zealand time;

(d) a reference to a document or law includes all amendments, supplements or replacements to that document or law;

(e) headings are for convenience only and do not affect the interpretation of the Agreement;

(f) the words “including”, “particularly”, “such as” and similar expressions do not limit the general interpretation of the surrounding words;

(g) in the case of conflict or ambiguity between any provision contained in the Agreement and an Order Form, the provision in these Terms and Conditions shall take precedence, unless the Order Form specifically states that it overrides the provisions of these Terms and Conditions.