Terms of use for end users

Vigilance Web Application









1.1  This Service Agreement is an agreement directly between you and the Service Provider, whether you have entered into it as a result of dealing directly with us or via a Vigilance Customer.   A Vigilance Customer may, at our discretion, enforce the terms of the Service Agreement against you on our behalf.

1.2  Where you have entered into this Service Agreement as a Customer and not as an End User, you further agree that you will ensure that in relation to any agreement between you and your own customer relating to the Web Services:

        (a) your own customer acknowledges that its access to the Web Services is conditional on it first accepting and entering into this Service Agreement directly with us;

        (b) you do not provide any representations, warranties or guarantees in relation to the Web Services, or impose any liability on us in relation to the Web Services, other than those which we make ourselves expressly to Users in relation to the Web Services;

        (c) that agreement between you and your own customer relating to the Web Services, insofar as it relates to your own customer’s access to the Web Services, terminates automatically on the termination of your own Service Agreement with us.

2.  Definitions.

2.1  "Affiliate."  With respect to you, any parent or subsidiary corporation, and any corporation or other business entity controlling, controlled by or under common control with you.  

2.2  "Authorized Users."  The individual persons consisting of your personnel and outside consultants who are authorized to access and use the Web Servicesr.  Authorized Users may include your third party consultants, outsourcers, contractors and other service providers.

2.3  “Customer.”  A User expressly authorised by us in writing (whether under a Purchase Agreement or otherwise) to enable its own customers to access and use the Web Services.

2.4  “Effective Date.”  The first day on which the Web Services are provided to you.

2.5  “End User.”  A User who is an end user.

2.6  “Personal Information.”  Information about an identifiable, natural person.

2.7  "Proprietary Rights."  Any and all rights anywhere in the world, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know how, trade secrets, moral rights, confidential or proprietary information, trade names, domain names, trade dress, logos, animated characters, trademarks, service marks, designs and other similar rights or interests in intellectual or industrial property, whether protected at law or under contract.


2.8  “Purchase Agreement”.  Your purchase-specific details agreed to separately by us [in writing],  including the fees prevailing at that time on the Site.  

2.9  “Service Provider, we, us, our.”  Vigilance Ltd, a New Zealand limited liability company, or its successor or assign.

2.10  "Site."  The website at www.vigl.biz (or such other domain designated by the Service Provider that points to the Vigilance Web Application that holds your data).

2.11  "User Data."  Information or other data processed, stored or transmitted by or on behalf of a User, using the Web Services..  

2.12  “User, you, your.”  A user of the Site or the Web Services, and where that user is you, also includes any company, legal entity or person on whose behalf you are entering into this Service Agreement.

2.13  "Vigilance Technology."  The Site and the underlying hardware, software, and systems used by the Service Provider to provide the Web Services.

2.14  "Web Services."  The particular web services described and specified as part of the Purchase Agreement, incorporating the Vigilance strategy centre provided by our backend services provider and made available via the Site, and any modifications, updates or upgrades to such services which may be generally released by Vigilance from time to time.  

3.  Agreement.

3.1  This Service Agreement incorporates the Service Provider’s Privacy Policy which can be viewed here.  

3.2  The Web Services may interoperate with or link to a range of third party service features.  The Service Provider does not make any warranty or representation on the availability of those features.  Without limiting the previous sentence, if a third party service or feature provider ceases to provide that service or feature or ceases to make it available on reasonable terms, we may cease to make available that service or feature to you, without liability to provide any refund, discount or other compensation. Those third party services and features may be subject to additional terms, and additional privacy policies and you undertake to comply with those in any use you make of those third party services or features.


4.  Modification of Service Agreement.

4.1  We reserve the right to modify this Service Agreement at any time by posting an amended Service Agreement on the Site (accessible through links placed on one of the Web Services or login pages) and/or by giving you notice of a modification. You should check periodically for modifications to this Service Agreement.  IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS SERVICE AGREEMENT.  YOUR CONTINUED USE OF THE SITE OR THE WEB SERVICES FOLLOWING OUR POSTING OF AN AMENDED AGREEMENT OR PROVIDING YOU NOTICE OF A MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE OF THAT MODIFIED SERVICE AGREEMENT BY YOU AND THE ENTITY OR PERSON ON WHOSE BEHALF YOU ARE ACTING.


5.  Eligibility.

5.1  The Web Services are not intended for minors under 18 years of age or for any User whose access to the Web Services has been suspended or terminated.  If you are under 18 years of age or have had your access suspended or terminated, you must not attempt to use the Web Services.


6.  Use and Restrictions.

6.1  As soon as practical on our receipt of your first payment for the Web Services, we will commence providing to you the Web Services in accordance with the terms of this Service Agreement.

6.1  You must access and use the Web Services only through the login protocols provided to you, and only for your own internal and standard business purposes (unless we agree otherwise in writing with you that you are entering into this Service Agreement as a Customer and not an End User). All rights not expressly granted in this Service Agreement are reserved by the Service Provider and its licensors.


6.2  You will be granted authorized login protocols for the Web Services, and you must not use the Web Services in excess of your authorized login protocols including any maximum number of Authorised Users.  You must not and must not permit any other person to (i) access (or attempt to access) the Web Services by any means other than through the login protocols we provide, and (ii)access (or attempt to access) the Web Services through any automated means (including use of scripts or web crawlers), and you agree to comply with the instructions set out in any robots.txt file present on the Web Services.  


6.3  You must not, and must not permit any other person to (i) resell, sublicense, transfer, assign, or distribute the Web Services or content; (ii) copy, modify or make derivative works based upon the Web Services or content other than as is strictly necessary to operate and access the Web Services in the ordinary course for their intended purpose; (iii) "frame" or "mirror" the Web Services or content on any other server or Internet-enabled device, (iv) reverse engineer, decompile any part of the Vigilance Technology or the Web Services except as expressly permitted by law, (v) attempt to undermine the security or integrity of the Web Services or the Vigilance Technology, (vi) use or misuse the Web Services or the Vigilance Technology in any way which may impair their functionality or the ability of another User to use the Web Services, or (vii) in relation to your use of the Web Services, impersonate another person or misrepresent authorisation to act on behalf of others or us, or misidentify the sender of any electronic messages.


6.4  You must not use the Web Services or Vigilance Technology for the propagation, distribution, housing, processing, storing, or otherwise handling in any way information or material which is illegal, infringing of a third party’s rights (including privacy and intellectual property rights), false or misleading, lewd, obscene, pornographic, or is in any other way objectionable (“Objectionable”). The designation of any information or material as Objectionable is entirely at our sole discretion.


7.  Inquiries Regarding Web Services.  

7.1  You agree to make all inquiries regarding the Web Services and technical support directly to the Service Provider.


8.  Ownership and Intellectual Property.

8.1  The Web Services and Vigilance Technology are protected by law, including, but not limited to, copyright law and international treaties. All rights, title and interest (including the copyright and other intellectual property rights) in the Web Services and the Vigilance Technology, and to any modifications, adaptations, enhancements or derivative works of those, are owned by the Service Provider and its licensors. Except for the limited rights of use granted herein, all other rights are reserved by us and our licensors.  You agree not to challenge the validity of, or our ownership of, our stated rights.

8.2  The Site and the domain name for the Site, the product and service names, brands, logos and other marks associated with the Web Services are the trade marks of the Service Provider or its licensors, and no rights of use or other rights in those trade marks are granted to you under this Service Agreement.

8.3  You assign to us, with effect from the date at which the relevant rights arise, all right, title and interest in any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or your personnel relating to the Web Services (together “feedback”) and agree that we may use or disclose feedback for any purpose.

8.4  All rights, title and interest in the User Data remains, as between the parties, the property of the User.  You grant us a worldwide, non-exclusive, fully paid-up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate your User Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with this Service Agreement.

8.5  To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use any know-how, techniques, ideas, methodologies, and similar intellectual property rights used by us in connection with the Web Services.

8.6  Any link to any third party website or feeds from the Site or the Web Services does not imply any endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators.  To the maximum extent permitted by law, we exclude all responsibility and liability for those websites and feeds.

8.7  User acknowledges and agrees that (i) the Service Provider may require access to User Data to exercise its rights and perform its obligations, (ii) to the extent that this is necessary, the Service Provider may authorise a member or members of its personnel to access the User Data for this purpose, (iii) the User must arrange all consents and approvals necessary for the Service Provider to access the User Data in the foregoing ways, and (iv) to the extent that User Data contains Personal Information, in collecting, holding and processing that information through the Web Services, the Service Provider is acting as an agent of the User for the purposes of the New Zealand Privacy Act 1993 and any other applicable privacy law.

9.  Your Account Responsibilities.

9.1 You are responsible for maintaining the confidentiality of your login protocols, and any additional information that we may provide regarding accessing the Web Services. If you knowingly share your login protocols with another person who is not authorized to use the Web Services, this Service Agreement is subject to termination for cause. You agree to immediately notify us of any unauthorized use of your login protocols or any other breach of security.  You are responsible and liable for any action or inaction taken by any person using your login protocols.


10.  Mutual Exchange of Confidential Information.

10.1  The parties anticipate that each may disclose confidential information to the other. Accordingly, the parties desire to establish in this Section terms governing the use and protection of certain information one party ("Owner") may disclose to, or have obtained about them by, the other party ("Recipient").  


10.2  Definition of Confidential Information.  For purposes hereof, "Confidential Information" means (i) the terms and conditions hereof, (ii) in the case of the Service Provider, non-public aspects of Vigilance’ Site and the operation thereof, Vigilance Technology, its intellectual property rights, and the Web Services and additional services provided by Vigilance, and Vigilance’ business and technical information, and data, (iii) in the case of the User, User Data, and non-public aspects of User’s technology, computer programs, and business and technical information, and data. In addition, Confidential Information includes information which, although not related to the Web Services or this Service Agreement, is nevertheless disclosed by, or obtained about, an Owner and can reasonably be expected to be confidential (including by way of any document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature).  


10.3  Restrictions on Use and Disclosure.  Recipient may use Confidential Information of Owner only for the purposes of this Service Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Service Agreement and only to its employees who have a need to know for such purposes and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure.  


10.4  Exclusions.  The restrictions of this Service Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation or restriction to Owner, (iv) is independently developed by Recipient as evidenced by its written and dated records and without any breach of this Service Agreement or any other obligation of confidentiality; or (v) is the subject of a written permission to disclose provided by Owner. The Recipient may disclose Confidential Information of Owner pursuant to the requirements of a governmental agency or by operation of law, provided that such Recipient gives Owner written notice thereof if and as soon as practicable and reasonably cooperates with Owner to contest such disclosure.


10.5  Confidential Information. You agree that all non-public information that we provide (if any) regarding the Web Services, including without limitation, our pricing, marketing methodology, and business processes, is our proprietary confidential information. You agree to use this confidential information only for the purposes of exercising your rights as our affiliate while in strict compliance with this Service Agreement.

10.6  Survival.  The obligations of confidentiality in this Service Agreement survive its termination.


11.  Disclaimer of Actions of Third Parties.  

11.1 The Service Provider does not and cannot control the flow of data to or from Vigilance’ Technology and other portions of the Internet.  Such flow of data depends on the performance of Internet services provided or controlled by third parties.  At times, actions or inactions of such third parties can impair or disrupt customer’s connections to the Internet (or portions thereof).  Although we will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Vigilance cannot guarantee that such events will not occur.  WE DISCLAIM ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES.  


12.  Onward Transfer of Data and Personal Information overseas.

12.1  Your Country of Residence. Any personal information which we may collect via the Web Services will be stored and processed in our servers, currently located only in Singapore.  If you reside outside of Singapore, you consent to the transfer, storage and access of personal information outside your country of residence to Singapore.  Please see our Privacy Policy for any changes to the location of our servers.


13.  Registration Data.

13.1 Registration is required for you to establish an account at the Web Services. You agree (i) to provide certain current, complete, and accurate information about you as prompted to do so by our online registration form ("Registration Data"), and (ii) to maintain and update such Registration Data as required to keep such information current, complete and accurate. You warrant that your Registration Data is and will continue to be accurate and current, and that you are authorized to provide such Registration Data. You authorize us to verify your Registration Data at any time. If any Registration Data that you provide is untrue, inaccurate, not current or incomplete, we retain the right, in its sole discretion, to suspend or terminate rights to use your account. Solely to enable us to use information you supply us internally, so that we are not violating any rights you might have in that information, you grant to us a nonexclusive use to (i) convert such information into digital format such that it can be read, utilized and displayed by our computers or any other technology currently in existence or hereafter developed capable of utilizing digital information, and (ii) combine the information with other content provided by us in each case by any method or means or in any medium whether now known or hereafter devised.


14.  Monitoring.

14.1 The Service Provider reserves the right to monitor your access and use of the Web Services without notification to you.


15.  Security.  

15.1 You shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of your link to the Internet.  As part of the Web Services, the Service Provider shall implement reasonable and appropriate security procedures consistent with prevailing industry standards to protect data from unauthorized access by physical and electronic intrusion; provided, however, unless resulting from the failure of Service Provider to perform the forgoing obligations, the parties agree that Service Provider shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to Service Provider at the time. Service Provider will use reasonable efforts to promptly report to you any unauthorized access to your data promptly upon discovery by Service Provider, and Service Provider will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in your data is required, you shall be solely responsible for any and all such notifications at your expense.


16.  Backups.  

16.1 At no additional charge to User, the Service Provider will use reasonable efforts to make daily incremental backups (the "Incremental Backup") and weekly full backups (the "Full Backups") of User Data archived with the Vigilance Technology.  The previous day’s incremental backup and a copy of the weekly backup shall be stored off site in a secure facility designed to store and maintain backups for emergency use.  Upon storage of a weekly backup in the off-site facility, the prior weekly backup shall be made available to User by electronic delivery.  Requests for User Data need to be made to the Service Provider at least fourteen (14) days before the termination of this Service Agreement and will be provided at additional cost to the User on a time and materials basis. User Data will be made available in a standard database document of our choosing. User Data will be released only if User is current on all payments.  


17.  Subscription Term, Fees, Termination

17.1  Subscription Term.  The Web Services will be provided for an initial term of one month from the Effective Date, unless agreed otherwise.  The initial term shall automatically renew for successive one (1) month terms unless and until a party notifies the other party on at least 1 month’s notice that the Service Agreement will not renew on the expiry of the relevant term.  Either party may choose not to renew this Service Agreement without cause for any reason.


17.2  Subscription Fees and Payment Terms.  The periodic subscription fees shall be payable on a monthly basis, in advance, unless agreed otherwise.  Periodic subscription fee payments shall be as per the rate on the Site at period commencement whether that be the initial term or renewal period.  The subscription fee will be calculated based on the number of Authorised Users required by the Customer and forming part of this Service Agreement.  The initial number of users can only be reduced at the renewal date providing you notify Vigilance before the next renewal period commences.


17.3   Additional Users.  Additional Authorised Users can be added to the User’s account (with an obligation to pay the further subscription fee) during the initial term and subsequent renewal periods.  The fee for additional Authorised Users will be the rate on the Site at the time of requesting additional Authorised Users.  The fee for additional users remains in force until the end of the 1 month initial term or subsequent 1 months renewal terms. Fees for additional users are payable monthly in accordance with Section 17.2.  


17.3  Fee Increases.  The Service Provider may increase its subscription fees at any time with thirty (30) days prior notice to its customers via the Site.  In addition, we may pass on any and all sales taxes, compliance fees and the like that we incur in the process of providing the Web Services to Users.


17.4  Late Charges.  Should a User not make timely payment to the Service Provider of any amount payable hereunder, in addition to the remedies available to the website operator the operator may collect interest on the sum then owing at the rate of 1.5% per month from the due date until payment by the User is received; provided, however, that in no event shall the aggregate interest charges exceed the maximum rate of interest which could be charged under applicable law.


17.5  Termination For Cause.  If a party fails to comply with any of the material terms and conditions of this Service Agreement, the non-defaulting party may terminate this Service Agreement and any and all rights upon fifteen (15) days' notice to the defaulting party specifying any such breach, unless within the period of such notice, all breaches specified therein shall have been remedied.  A failure by the User to pay when due the subscription fee or any other amount due and payable to the Service Provider under this Service Agreement is deemed to be a failure by the User to comply with a material term of this Service Agreement.


17.6  There will be no refunds of any payments made by the User to the Service Provider in advance whatsoever. With appropriate notice the Service Provider will stop any future scheduled payments following termination by the User.


18.  Taxes.

18.1  All fees are exclusive of taxes or duties.  If the Service Provider is required to pay or collect any federal, state, local, or sales or value added, tax or duty on any fees charged under this Service Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on the Service Provider’s net income, then such taxes and/or duties shall be billed to and paid by User immediately upon receipt of the Service Provider’s invoice and supporting documentation for the taxes or duties charged.  


19.  Technical Support, Training, and Consulting Services.  

19.1  During the term hereof, the Service Provider shall provide technical support in the form of responses to questions by email at no additional charge.  If additional services are required for the proper use and operation of the Web Services or if training or consulting services are requested, the Service Provider shall provide such services on a time and materials ("T&M") basis; that is, (i) User shall pay the Service Provider for all the time spent performing such services (including all travel time), plus materials, taxes, and reimbursable expenses; and (ii) the rates for such services shall be the Service Provider’s then current standard rates when such services are provided.


20.  User Representations and Warranties.

21.1  User represents and warrants that (i) the performance of its obligations and use of the Web Services (by User and its Authorized Users) will not violate any applicable laws, or regulations, including without limitation any and all laws and regulations regarding the collection, use, storage, disclosure and transfer outside the region of use of Personal Information , or (ii) cause a breach of any agreements with any third parties or unreasonably interfere with the use by other users of the Web  Services.


20.2  User acknowledges that (i) the Service Provider does not undertake to monitor the content, the User Data, or any other information passing through the Web Services for any purposes including the purpose of verifying legal compliance by any person, and (ii) User must ensure that the information it and its Authorized Users input into, store or transmit thereby complies with all applicable laws and regulations.


20.3  The Service Provider will have the right to suspend immediately the Web Services in the event of any breach by User of any term of this Service Agreement,  or if deemed reasonably necessary by the Service Provider to prevent any harm to the Service Provider and its business, the Web Services, the Vigilance Technology, or to any person.  The Service Provider will provide notice to User and an opportunity to cure, if practicable, depending on the nature of the breach.  Once cured, Vigilance will promptly restore the Services.


21. Indemnity, Warrants and Liability.  

21.1.  Liability Cap.  In no event shall the Service Provider’s maximum aggregate liability arising under or in connection with the Service Agreement or the Web Services whether in contract, tort (including negligence), breach of statutory duty or otherwise, exceed the total of subscription fees payable by User for the three (3) billing periods immediately preceding the claim for such liability.  

21.2  Limitation of liability.  In no event shall the Service Provider be liable under or in connection with the Service Agreement or the Web Services to anyone for any loss of data, revenue, profits, use or other economic advantage or for any indirect, punitive, special, exemplary, incidental, or consequential damages of any type or kind, including without limitation the use or inability to use the Web Services, or for any content obtained from or through the web services, any interruption, inaccuracy, error or omission, regardless of cause, even if the Service Provider has been previously advised of the possibility of such damages.

21.3  Warranty disclaimers. Except as may be provided in any separate written agreements signed by the parties, the Web Services are provided "as-is", and neither the Service Provider or any of our licensors make any representation or warranty with respect to the Web Services.  The Service Provider and its licensors specifically disclaim, to the fullest extent permitted by law, any and all warranties, express or implied, relating to the Web Services, including but not limited to, implied warranties of merchantability, completeness, timeliness, correctness, non-infringement, or fitness for any particular purpose. The Service Providers and its licensors do not represent or warrant that the Web Services: (a) will be secure, timely, uninterrupted or error free or operate in combination with any other hardware, software, system or data, (b) will meet the User’s requirements or expectations, including meeting any legal obligations that the User has, or (c) will be free of viruses or other harmful components. These disclaimers constitute an essential part of this Service Agreement.  If implied warranties may not be disclaimed under applicable law, then any implied warranties are limited in scope and duration to the minimum required by applicable law.

21.4  Consumer Guarantees Act.  User agrees and represents that it is acquiring the Web Services, and entering into this Service Agreement, for the purpose of a business and that the New Zealand Consumer Guarantees Act 1993 or any other relevant consumer protection legislation does not apply to the supply of the Web Services or this Service Agreement.

21.5  Limitation of remedies.  Where legislation or rule of law implies into this Service Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in this Service Agreement.  However, the liability of the Service Provider for any breach of that condition or warranty is limited, at the Service Provider’s option, to (i) supply the Web Services again, and/or (ii) paying the costs of having the Web Services supplied again.

21.6  User indemnity.  You indemnify us, our licensors and related companies against any loss or damage suffered as a result of any breach by you (or any person using your login protocols) of Sections 1.2, 6.1-6.4, 8.7, 9.1, 10, 13, 21.1 (confidentiality, IP, data, access conditions).  This Section survives termination.


22.  Consequences of Termination.

22.2. Return of Materials.  Within ten (10) days of the expiration or termination of this agreement, User shall return to Vigilance any materials provided by Vigilance.


23.  Assignment.  

23.1  User shall not assign this Service Agreement or any right or interest under this Service Agreement, nor delegate any work or obligation to be performed under this Service Agreement, without Vigilance' prior written consent.  Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.


24.  Continuing Obligations.  

24.1  The following provisions shall survive the expiration or termination of this Service Agreement:  (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (ii) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the Confidential Information of either party, or any remedy for breach thereof, (iii) any obligations relating to the payment of taxes, duties, or any money to Vigilance hereunder, and (iv) any other provisions expressly or impliedly intended to survive termination.


25.  Notices

25.1  The Service Provider may give notice to you by means of (i) a general notice in your account information, (ii) by electronic mail to your email address on record in your Registration Data. Such notice shall be deemed to have been given upon the expiration of forty eight (48) hours from it being placed or sent.


26.  Arbitration and Law.  

26.1  Except for actions to protect intellectual property rights, to seek urgent interlocutory and/or injunctive relief, and/or to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Service Agreement or a breach thereof shall be (i) first attempted to be resolved by the parties using good faith negotiations, and (ii) where such negotiations have failed to resolve the dispute within 14 days of a party notifying the other of a dispute, then submitted to and finally resolved by arbitration under the rules of the New Zealand law and the current Arbitration Protocol of the Arbitrators' and Mediators' Institute of New Zealand Inc. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules.  The arbitration shall be conducted by telephone or online.  The arbitrator shall apply the laws of New Zealand to all issues in dispute.  The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party.  The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.  


26.2.  Applicable Law; Jurisdiction and Venue.  This Service Agreement shall be construed under the laws of New Zealand, without regard to its principles of conflicts of law.  Except as agreed otherwise in Section 26.1, the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.


26.3.  Severability. If any provision of this Service Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Service Agreement, and this Service Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.


26.4  Force Majeure. The Service Provider shall not be liable for any loss or damages for any delay or failure of delivery arising out of causes beyond our reasonable control and without our fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures.


27.  Miscellaneous.

27.1This Service Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Service Agreement and merges all prior communications, understandings, and agreements.

27.2 Subject to the limited agency set out in Section 8.7, the Service Provider is an independent contractor of User, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under this Service Agreement.