1. APPLICATION OF TERMS
1.1 These Terms apply to your use of Nextspace (as that term is defined below) and related support services. By clicking I agree:
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 authorized 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 We are not bound to supply Nextspace to you until we have accepted your request for an Account. Our acceptance occurs only when we notify you by email that we accept your request for an Account or provide you with access to Nextspace (whichever is the earlier).
1.3 If the processing of Data (as defined below) is governed by the GDPR (as defined below), the additional terms in our Data Processing Addendum set out in Schedule 3 also form part of these Terms.
1.4 These Terms apply to the exclusion of any standard terms you may have for the purchase of goods or services and any terms included, or incorporated by reference, in any request for quote, purchase order or other correspondence between us.
1.5 If you do not agree to these Terms, you are not authorized to access and use Nextspace, and you must immediately stop doing so.
2.1 We may change these Terms at any time by notifying you of the change by email or by posting a notice on the Website. Unless stated otherwise, any change takes effect from the date set out in the notice. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use Nextspace from the date on which the Terms are changed, you agree to be bound by the changed Terms.
2.2 These Terms were last updated on 7th March 2023.
In these Terms:
Nextspace means the Nextspace Digital Twin Platform service having the core functionality described on the Website, as the Website is updated from time to time.
Confidential Information means any information that is not public knowledge and that is obtained from the other party during, or in connection with, the provision and use of the Services. Our Confidential Information includes Intellectual Property owned by us (or our licensors),including the Nextspace Software. Your Confidential Information includes the Data.
Data means all data, content, and information (including personal information) owned, held, used, or created by you or on your behalf that is stored using, or inputted into, the Nextspace Service.
Data Processing Addendum means our data processing addendum set out in Schedule 3, including its Appendices.
Documentation means the user and technical documentation designed to enable you to properly use and operate Nextspace (if any) and includes any update of the documentation.
Fees means the applicable fees set out on our pricing page on the Website at nextspace.com or otherwise agreed in writing between you and us, as may be updated from time to time in accordance with clause 8.5 and any fees chargeable under clause 7.
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
a) an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
b) lack of funds for any reason.
GDPR means the European Union General Data Protection Regulation 2016/679.
Including and similar words do not imply any limit.
Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification, or derivative work of the Intellectual Property.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
A Party includes that party’s permitted assigns.
A Person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
Personal Information means information about an identifiable, living person, and includes personal data, personally identifiable information and equivalent information under applicable privacy and data protection laws.
Personnel include officers, employees, contractors, and agents, but a reference to your personnel does not include us.
Sales Tax means sales tax, goods and services tax, value added tax or equivalent tax payable under any applicable law.
Service Levels means the service levels set out in Schedule 2.
Services means Nextspace and the Support Services.
Subscription Period means the subscription period you have selected (e.g. monthly, annual, multi- year).
Support Services means the support services described in Schedule 1.
Start Date means the date that you set up an account for Nextspace.
Underlying Systems means the IT solutions, systems, and networks (including software and hardware) used to provide Nextspace, including any third-party solutions, systems, and networks.
User Accounts means user accounts for your personnel that you establish in accordance with clause 5.3a.
We, us, or our means Nextspace Limited, a New Zealand company with company number 1881254.
Website means the internet site at www.nextspace.com, or such other site notified to you by us.
Year means a 12-month period starting on the Start Date or the anniversary of that date.
You or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
Words in the singular include the plural and vice versa.
A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements, or other changes to any of them.
4 PROVISION OF THE SERVICES
4.1 We must use reasonable efforts to provide the Services:
a) in accordance with these Terms and applicable law;
b) exercising reasonable care, skill, and diligence; and
c) using suitably skilled, experienced, and qualified personnel.
4.2 Our provision of the Services to you is non-exclusive. Nothing in these Terms prevents us from providing the Services to any other person.
4.3 Subject to clause 4.4, we must use reasonable efforts to ensure Nextspace is available in accordance with the Service Levels; however, it is possible that on occasion Nextspace may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We must use reasonable efforts to publish on the Website and/or notify you by email advance details of any unavailability.
4.4 Through the use of web services and APIs, Nextspace interoperates with a range of third-party service features. We do not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third-party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third-party feature, you are not entitled to any refund, discount, or other compensation.
5 YOUR OBLIGATIONS
5.1 You and your personnel must:
a) use Nextspace in accordance with these Terms solely for:
i) your own internal business purposes; and
ii) lawful purposes; and
b) not resell or make available Nextspace to any third party, or otherwise commercially exploit Nextspace.
5.1.1 When accessing Nextspace, you and your personnel must:
a) not impersonate another person or misrepresent authorization to act on behalf of others or us;
b) correctly identify the sender of all electronic transmissions;
c) not attempt to undermine the security or integrity of the Underlying Systems;
d) not use, or misuse, Nextspace in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use Nextspace;
e) not attempt to view, access, or copy any material or data other than:
i) that which you are authorized to access; and
ii) to the extent necessary for you to use Nextspace in accordance with these Terms; and
iii) neither use Nextspace in a manner, nor transmit, input, or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect, or misleading.
i) may grant access to your personnel by creating User Accounts for your personnel with separate login details and differing levels of access rights selected by you; and
ii) are responsible for any User Accounts you create, and must delete the User Account if you no longer wish the relevant person to have access (e.g. where an employee ceases working for you). We take no responsibility for the level of access granted to a User Account, or for the deletion of User Accounts.
b) You must ensure that your personnel comply with clauses 5.1 and 5.2 and any other reasonable condition notified by us to you.
c) A breach of any of these Terms by your personnel (including, to avoid doubt, anyone accessing or using Nextspace using a User Account you have created) is deemed to be a breach of these Terms by you.
5.4 You are responsible for procuring all licenses, authorizations and consents required for you and your personnel to use Nextspace, including to use, store and input Data into, and process and distribute Data through, Nextspace.
6.1 You acknowledge that:
a) we may require access to the Data to exercise our rights and perform our obligations under these Terms; and
b) to the extent that this is necessary but subject to clause 10 and the Data Processing Addendum (if applicable), we may authorize a member or members of our personnel to access the Data for this purpose.
6.2 You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 6.1.
6.3 You acknowledge and agree that:
a) we may:
i) use Data and information about your and your end users’ use of Nextspace to generate anonymized and aggregated statistical and analytical data (Analytical Data);
ii) use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
iii) supply Analytical Data to third parties;
b) our rights under clauses 6.3aii and iii above will survive termination of expiry of the Agreement; and
c) title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
6.4 You acknowledge and agree that to the extent Data contains personal information, in collecting, holding, and processing that information through Nextspace, we are acting as your agent and/or as a service provider and/or as a data processor for the purposes of applicable privacy and data protection laws. If the GDPR or the equivalent laws of the United Kingdom apply, the additional terms in the Data Processing Addendum also form part of these Terms. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms and, if applicable, the Data Processing Addendum.
6.5 While we will take standard industry measures to back up all Data stored using Nextspace, you agree to keep a separate back-up copy of all Data uploaded by you onto Nextspace.
6.6 You agree that we may store Data (including any personal information) in secure servers in Australia, United States, France, India and Singapore and may access that Data (including any personal information) in those countries from time to time.
6.7 You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect, or misleading.
7 FAIR USE
7.1 Nextspace is subject to the fair use policy set out in this clause 7.
7.2 Your use of Nextspace must be fair, reasonable, and not excessive, as reasonably determined by us by reference to average and/or estimated typical customer usage of Nextspace. 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 as determined by us) (Excessive).
7.3 Use of Nextspace is for your individual company benefit only. In no case does Nextspace allow for activities aimed at reselling Nextspace or using Nextspace in an unfair or excessive way and any such use of Nextspace by you is a breach of these Terms.
7.4 If, in our reasonable opinion, we consider your usage to be unfair, unreasonable and/or Excessive, we may immediately suspend, modify, or restrict your use of Nextspace or withdraw in full or in part your access to Nextspace without notice to you.
7.5 We may, a tour discretion, charge you for Excessive usage, which if we do so will be a tour standard rates.
8.1 You must pay us the Fees.
8.2 We will provide you with invoices for each Subscription Period prior to the due date for payment.
8.3 Unless stated otherwise, the Fees exclude Sales Tax, which you must pay on taxable supplies.
8.4 You must pay the Fees:
a) in advance of the Subscription Period; and
b) electronically in cleared funds without any set off or deduction.
8.5 We may increase the Fees by giving at least 30 days’ notice. Any increase in Fees will take effect at the beginning of the Subscription Period following the date our notice takes effect, except that if you add a new User Account or upgrade the level of access granted to a User Account the increased fees will apply from the date our notice takes effect. If you do not wish to pay the increased Fees, you may terminate these Terms and your right to access and use Nextspace on no less than 10 days’ notice, provided the notice is received by us before the beginning of the Subscription Period following the date our notice takes effect effective date of the Fee increase. If you do not terminate these Terms and your right to access and use Nextspace in accordance with this clause, you are deemed to have accepted the increased Fees.
9 INTELLECTUAL PROPERTY
9.1 Subject to clause 9.2, title to, and all Intellectual Property Rights in, Nextspace, the Website, and all Underlying Systems is and remains our property (and our licensors’ property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
9.2 Title to, and all Intellectual Property Rights in, the Data (as between the parties)remains your property. Subject to the Data Processing Addendum (if applicable),you grant us a worldwide, non- exclusive, fully paid up, transferable, irrevocable license to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.
9.3 To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable, and perpetual license to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of Nextspace.
9.4 If you provide us with ideas, comments or suggestions relating to Nextspace or the Underlying Systems (together feedback):
a) all Intellectual Property Rights in that feedback, and anything created because of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
b) we may use or disclose the feedback for any purpose.
9.5 You acknowledge that Nextspace may link to third party websites or feeds that are connected or relevant to Nextspace. Any link from Nextspace does not imply that we endorse, approve, or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law,we exclude all responsibility or liability for those websites or feeds.
10.1 Each party must, unless it has the prior written consent of the other party:
a) keep confidential at all times the Confidential Information of the other party;
b) effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorized access or use; and
c) disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 10.1a and10.1b.
10.2 The obligation of confidentiality in clause 10.1 does not apply to any disclosure or use of Confidential Information:
a) for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
b) required by law (including under the rules of any stock exchange);
c) which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
d) which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
e) by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, if we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 10.
11.1 Each party warrants that it has full power and authority to enter, and perform its obligations under, these Terms.
11.2 TO THEMAXIMUM EXTENT PERMITTED BY LAW:
a) OURWARRANTIES ARE LIMITED TO THOSE SET OUT IN THESE TERMS, AND ALL OTHERCONDITIONS, GUARANTEES OR WARRANTIES WHETHER EXPRESSED OR IMPLIED BY STATUTE OROTHERWISE ARE EXPRESSLY EXCLUDED; AND
b) WE MAKENO REPRESENTATION CONCERNING THE QUALITY OF THE SERVICES AND DO NOT PROMISETHAT THE SERVICES WILL:
i) MEET YOURREQUIREMENTS OR BE SUITABLE FOR A PARTICULAR PURPOSE, INCLUDING THAT THE USE OFTHE SERVICES WILL FULFIL OR MEET ANY STATUTORY ROLE OR RESPONSIBILITY YOU MAYHAVE; OR
ii) BESECURE, FREE OF VIRUSES OR OTHER HARMFUL CODE, UNINTERRUPTED OR ERROR FREE.
11.3 You agree and represent that you are acquiring the Services, and accepting these Terms, for the purpose of trade. The parties agree that:
a) to the maximum extent permissible by law, no consumer protection legislation applies to the supply of the Services or these Terms; and
b) it is fair and reasonable that the parties are bound by this clause 11.3.
11.4 Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
a) supplying the Service again; and/or
b) paying the costs of having the Service supplied again.
12.1 OUR MAXIMUMAGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THESE TERMS OR RELATING TO THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORYDUTY OR OTHERWISE, MUST NOT IN ANY YEAR EXCEED AN AMOUNT EQUAL TO THE FEES PAIDBY YOU RELATING TO THE SERVICES IN THE 3 MONTH PERIOD PRIOR TO THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY).
12.2 NEITHER PARTY IS LIABLE TO THE OTHER UNDER OR IN CONNECTION WITH THESE TERMS OR THE SERVICES FOR ANY:
a) LOSS OF PROFIT, REVENUE, SAVINGS, BUSINESS, USE, DATA (INCLUDING DATA), AND/OR GOODWILL; OR
b) CONSEQUENTIAL,INDIRECT, INCIDENTAL OR SPECIAL DAMAGE OR LOSS OF ANY KIND.
12.3 Clauses 12.1 and 12.2 do not apply to limit our liability under or in connection with these Terms for:
a) personal injury or death;
b) fraud or willful misconduct; or
c) a breach of clause 10.
12.4 Clause 12.2 does not apply to limit your liability:
a) to pay the Fees;
b) under the indemnity in clause 6.7; or
c) for those matters stated in clause 12.3a to 12.3c.
12.5 Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
12.6 Each party must take reasonable steps to mitigate any loss or damage, cost, or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Services.
13 TERM, TERMINATION AND SUSPENSION
13.1 Unless terminated under this clause 13, these Terms and your right to access and use Nextspace:
a) starts on the Start Date; and
b) continues for successive Subscription Periods until a party gives at least 30 days’ notice that these Terms and your access to and use of Nextspace will terminate at the end of the then- current Subscription Period.
13.2 Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use Nextspace if the other party:
a) breaches any material provision of these Terms and the breach is not:
i) remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
ii) capable of being remedied; or
b) becomes insolvent, liquidated, or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.
13.3 You may terminate these Terms and your right to access and use Nextspace in accordance with clause 8.5.
13.4 Termination of these Terms does not affect either party’s rights or obligations that accrued before that termination.
13.5 On termination of these Terms, you must pay all Fees for the provision of Nextspace prior to that termination.
13.6 No compensation is payable by us to you because of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.
13.7 Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of these Terms but subject to clause 13.8, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
13.8 At any time prior to one month after the date of termination, you may request:
a) a copy of any Data stored using Nextspace, if you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software; and/or:
b) deletion of the Data stored using Nextspace, in which case we must use reasonable efforts to promptly delete that Data. To avoid doubt, we are not required to comply with clause 13.8a to the extent that you have previously requested deletion of the Data.
13.9 Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of Nextspace and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have:
a) undermined, or attempted to undermine, the security or integrity of Nextspace or any Underlying Systems;
b) used, or attempted to use, Nextspace:
i) for improper purposes; or
ii) in a manner, other than for normal operational purposes, that materially reduces the operational performance of Nextspace;
c) transmitted, inputted or stored any Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights),or that is or may be Objectionable, incorrect or misleading; or
d) other wise materially breached these Terms.
14.1 Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.
14.2 No person other than you and us has any right to a benefit under, or to enforce, these Terms.
14.3 For us to waive a right under these Terms, that waiver must be in writing and signed by us.
14.4 Subject to clause 6.4, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
14.5 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. You may give notice to us under or in connection with these Terms by emailing firstname.lastname@example.org.
14.6 These Terms, and any dispute relating to these Terms or the Services, are governed by and must be interpreted in accordance with the laws of Delaware. Each party submits to the non-exclusive jurisdiction of the Courts of Delaware in relation to any dispute connected with these Terms or the Services.
14.7 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 6.7, 9, 10, 12, 13.4 to 13.8 and 14.6, continue in force.
14.8 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 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.
14.9 Subject to clauses 2.1 and 8.5, any variation to these Terms must be in writing and signed by both parties.
14.10 These Terms set out everything agreed by the parties relating to the Services, and supersede and cancel anything discussed, exchanged, or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Services that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date.
14.11 You may not assign, novate, subcontract, or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.
SCHEDULE 1 – SUPPORT SERVICES
1. We will perform the Support Services set out in this Schedule, using reasonable efforts to meet the Service Levels.
2. The provision of Support Services is conditional on you:
a) paying all Fees;
b) first using reasonable efforts to resolve the issue by referring to the Documentation; and
c) contacting us during our business hours (Monday to Friday 9am to 5pm New Zealand Time Zone (Support Hours), excluding public holidays in New Zealand) via one of the following methods:
3. We are not required to provide Support Services where the support is required because of or in connection with a breach of these Terms by you, including use of Nextspace by you or your personnel in a manner or for a purpose not reasonably contemplated by these Terms or not authorized in writing by us.
4. We offer several options for technical support. All accounts get basic support, and we offer paid upgrade options. Contact us for plans and pricing.
5. The Support Services include:
a) answering questions about the features of Nextspace; and
b) troubleshooting Nextspace.
6. The Support Services do not include:
a) support for custom software; or
b) performing manual system administration tasks.
7. We will announce if we intend to discontinue or make backwards incompatible changes to Nextspace. We will always try to give you as much time as possible to make any necessary modifications to your applications or processes. This policy does not apply to versions, features, and functionality that we label as beta, experimental or similar.
8. We may provide Documentation for Nextspace and its use. Our Documentation may specify restrictions on how Nextspace must be configured and/or used. You agree to comply with any such restrictions. Visit nextspace.com for access to our support and documentation resources.
9. Our systems are continuously monitored by automated systems and health checks. In the event of any issue that adversely affects the performance, security, reliability, or integrity of Nextspace, we will receive notification and respond as soon as reasonably possible.
SCHEDULE 2 – SERVICE LEVELS
In this Schedule:
Monthly Uptime Percentage is calculated by subtracting from 100% the percentage of minutes during the month in which Nextspace was Unavailable, excluding downtime described in paragraph 2 of this Schedule.
Scheduled Maintenance means scheduled Unavailability of Nextspace announced by us prior to the Nextspace becoming Unavailable.
Unavailable means when Nextspace is not running or not reachable due to our fault. Unavailability has a consistent meaning.
1. We will use reasonable efforts to ensure that Nextspace is available with a Monthly Uptime Percentage of at least 98% during any monthly billing cycle (Availability Service Level).
2. The Availability Service Level excludes downtime:
a) that results from a suspension in accordance with clause 13.9 of the Terms;
b) caused by factors outside of our reasonable control, including any Force Majeure event, Internet access, or problems beyond the demarcation point of our network;
c) that results from any acts or omissions of you, your personnel or a third party;
d) caused by the equipment, software or other technology of you, your personnel or a third party (other than third party equipment within our direct control); or
e) during Scheduled Maintenance.
Response and Resolution:
3. We will use reasonable efforts to meet the service levels set out in Table 1 (Response and Resolution Service Levels), based on the priority level assigned to each support incident as set out in Table 2, and subject to the terms set out in paragraph 4 of this Schedule:
Table 1 (Target response and resolution times)
Target timeframe for initial response = Within 2 New Zealand business hours (Monday to Friday 9am to 5pm) of the support request being logged.
Target timeframe for resolution or workaround = Within 10 hours of the support request being logged (if determined its infrastructure/cloud related). Updates to issue are made to the Nextspace Helpdesk (CSM Portal) at least twice a day until resolved.
Target timeframe for initial response = Within 2 New Zealand business hours of the support request being logged.
Target timeframe for resolution or workaround = Workaround to be identified and implemented to the externally accessible pre-production environment (aka UAT) within 5 business days. Solution to issue to be included in the next monthly production release (typically one every one to two months). If the issue is received in the latter part of the development/production release cycle, fix will likely be included in the following production release. Updates will be posted to CSM Portal: 1) each day until the workaround has been implemented, 2) then as updates occur; change in status, 3) solution released for testing in UAT; and 4) solution released to production.
Target timeframe for initial response = Within 2 New Zealand business hours of the support request being logged.
Target timeframe for resolution or workaround = Solution to issue to be included in the next monthly Production release (typically one every one to two months). If the issue is received in the latter part of the development cycle, solution would likely be included in the following pre-production and production releases. If the support request is a request for information, a response would typically be within 3 business days. Updates to issue are made to the CSM Portal: 1) as updates occur; 2) change in status; 3) solution released for testing in pre-production; and 4) solution released to production.
Target timeframe for initial response = Within 2 Business Days of support request being logged.
Target timeframe for resolution or workaround = N/A.
Priority 1 = Critical = Nextspace is down or is causing major problems to you in the operation of your normal business.
Priority 2 = Major = Defective Nextspace functionality leading to severe loss of service in your operating environment (e.g. subset of critical functionality down or inoperable); significant business impact.
Priority 3 = Medium = A function of Nextspace is unavailable or not working as specified; important issue without significant immediate operational impact; other functions are working normally; a request for information about Nextspace where the information is required urgently.
Priority 4 = Minor = A function of Nextspace is not working as specified and has little or no operational impact; or a request for information about Nextspace where the relevant information is not required urgently.
4. The following terms apply to the Response and Resolution Service Levels:
a) Response and resolution times are targets only. We will use reasonable efforts to meet these targets but will have no liability to you if the targets are not met.
b) Only hours and days within the Support Hours count towards response and resolution times.
c) The timeframes above assume that all information is provided to address the incident within the priority target. If this assumption is not correct workaround and/or resolution may be delayed.
SCHEDULE 3 – DATA PROCESSING ADDENDUM
1. APPLICATIONOF THIS ADDENDUM.
1.1 This Data Processing Addendum, including its Appendices (Addendum) applies if the Processing (as defined below) of Data is governed by the GDPR or the equivalent laws of the United Kingdom.
1.2 If this Addendum applies, this Addendum forms part of the Terms between us and you (as defined in the Terms) and sets out the parties’ agreement in relation to the processing of Data in accordance with the requirements of European Union and United Kingdom data protection laws and regulations.
1.3 Except as varied in this Addendum, all terms and conditions set out in the Terms continue to apply.
2.1 Unless the context requires otherwise:
a) capitalised terms used, but not defined, in this Addendum will have the meanings given to them in the Applicable Data Protection Laws (or, if not defined in the Applicable Data Protection Laws, the Terms);
b) the rules of interpretation set out in the Terms apply to this Addendum; and
c) references to clauses are references to the clauses in this Addendum.
2.2 In this Addendum:
Applicable Data Protection Laws means EU Data Protection Laws and any applicable data protection or privacy laws of any other country.
EU Data Protection Laws means all laws and regulations, including laws and regulations of the European Union, its member states, that apply to the Processing of Data under the Terms, including (where applicable)the GDPR and the equivalent laws of the United Kingdom.
Instruction means the instructions set out in clause 3.3 or agreed under clause 3.4
Personal Data means all Data which is personal data, personally identifiable information, or personal information under Applicable Data Protection Laws (as applicable under those laws) Processing means any operation or set of operations which is performed upon Personal Data, whether by automated means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or other wise making available, alignment or combination, blocking, erasure, or destruction. Process has a consistent meaning.
Sub-Processor means any person appointed by us or on our behalf to Process Personal Data on your behalf in connection with the Terms.
2.3 If there is any conflict between any of the following, they will have precedence in the descending order of priority set out below:
a) this Addendum; and
b) the Terms.
3. PROCESSING OF PERSONAL DATA
3.1 With respect to the Processing of Personal Data under the Terms:
a) you act as the Data Controller;
b) we act as the Data Processor; and
c) subject to clause 6, we may engage the Sub-Processors listed in Appendix B.
3.2 We will comply with all Applicable Data Protection Laws that apply to our Processing of Personal Data on your behalf, including all EU Data Protection Laws that apply to Data Processors.
3.3 You must, when using Nextspace, comply with all Applicable Data Protection Laws that apply to your Processing of Personal Data, including all EU Data Protection Laws that apply to Data Controllers.
3.4 You instruct us to Process Personal Data and, subject to clause 6, transfer Personal Data to any country or territory:
a) as reasonably necessary to provide Nextspace in accordance with the Terms;
b) as initiated using Nextspace by you, your Personnel and other end users you allow to use Nextspace; and
c) to comply with any further instruction from you (including by email or through our support channels) that is consistent with the Terms and this Addendum.
3.5 This Addendum and the Terms are your complete and final instructions for the Processing of Personal Data as at the time this Addendum takes effect. Any additional or alternate instructions must be agreed between us and you separately in writing.
3.6 We will not Process Personal Data other than on your Instructions unless required by any law to which we are subject, in which case we will to the extent permitted by applicable law inform you of that legal requirement before we Process that Personal Data.
3.7 As required by Article 28(3) of the GDPR (and, if applicable, equivalent requirements of other Applicable Data Protection Laws), the nature and purpose of the Processing, the types of Personal Data and categories of Data Subjects Processed under this Addendum are set out in Appendix A. We may amend Appendix A from time to time on written notice to you as we reasonably consider necessary to meet the requirements of the GDPR (and applicable equivalent requirements of other Applicable Data Protection Laws).
3.8 The duration of Processing is limited to the duration of the Terms. Our obligations in relation to Processing will continue until the Personal Data has been properly deleted or returned to you in accordance with clause 11 of this Addendum.
3.9 You are solely responsible for ensuring that your Instructions comply with Applicable Data Protection Laws. It is also your responsibility to enter into data processing agreements with other relevant Data Controllers to allow us and our Sub-Processors to Process Personal Data in accordance with this Addendum.
3.10 If, in our reasonable opinion, an Instruction infringes Applicable Data Protection Laws, we will notify you as soon as reasonably practicable.
4. DATA SUBJECT REQUESTS
4.1 To the extent permitted by law, we will notify you promptly if we receive a request from a Data Subject to exercise the Data Subject’s rights under Applicable Data Protection Laws relating to any Personal Data (Data Subject Request).
4.2 Considering the nature of the Processing, we will assist you by implementing appropriate technical and organisational measures, to the extent possible, to fulfil your obligation to respond to a Data Subject Request under Applicable Data Protection Laws.
4.3 To the extent you do not have the ability to address a Data Subject Request, we will, on your written request, provide reasonable assistance in accordance with Applicable Data Protection Laws to facilitate that Data Subject Request. You will reimburse us for the costs arising from this assistance.
4.4 We will not respond to a Data Subject Request except on your written request or if required by applicable law.
5. OUR PERSONNEL
5.1 We will:
a) take reasonable steps to ensure the reliability of any of our Personnel engaged in the Processing of Personal Data;
b) ensure that access to Personal Data is limited to our Personnel who require that access as strictly necessary for the purposes of exercising our rights and performing our obligations under the Terms;
c) ensure that our Personnel engaged in Processing Personal Data are subject to confidentiality undertakings or professional or statutory obligations of confidentiality; and
d) ensure that our Personnel engaged in Processing Personal Data are informed of the confidential nature of the Personal Data and receive appropriate training on their responsibilities.
5.2 We have appointed a data protection officer who can be contacted at email@example.com.
6.1 You acknowledge and agree that we may engage third party Sub-Processors in connection with the provision of Nextspace.
6.2 We have entered into (and will, for any new Sub-Processor, enter into) written agreements with each Sub-Processor containing data protection obligations which offer at least the same level of protection for Personal Data as set out in this Addendum and that meet the requirements of Article 28(3) of the GDPR and equivalent requirements of other Applicable Data Protection Laws, as applicable to the nature of the services provided by that Sub-Processor.
6.3 You may request copies of our written agreements with Sub-Processors (which may be redacted to remove confidential information not relevant to this Addendum).
6.4 A list of current Sub-Processors for Nextspace as of 27th January 2023 is setout in Appendix B. We may update the list of Sub-Processors from time to time and, subject to clause 6.5, we will give at least 30 days’ written notice of any new Sub-Processor.
6.5 We may engage Sub-Processors as needed to serve as an Emergency Replacement to maintain and support Nextspace. Emergency Replacement means a sudden replacement of a Sub-Processor where a change is outside our reasonable control. In this case, we will inform you of the replacement Sub-Processor as soon as reasonably practicable.
6.6 If, within 30 days of us notifying you of any new Sub-Processor, you notify us in writing of any objection (on reasonable grounds) to any new Sub-Processor, we will:
a) in the case of a new Sub-Processor notified under clause 6.4, not appoint (or not disclose any Personal Data to) that proposed Sub-Processor until we have taken reasonable steps to address your objections and provide you with a reasonable written explanation of the steps taken;
b) in the case of a new Sub-Processor notified under clause 6.5, take reasonable steps as soon as reasonably practicable to address your objections and provide you with a reasonable written explanation of the steps taken; and/or
c) work with you in good faith to make available a commercially reasonable change in the provision of Nextspace which avoids the use of that proposed Sub-Processor. If the change results in us incurring costs in providing Nextspace more than those that we would have incurred without the change, we may make a reasonable adjustment to the charges for Nextspace to reflect those costs.
6.7 We are liable for the acts and omissions of our Sub-Processors to the same extent we would be liable if performing the services of each Sub-Processor directly under the terms of this Addendum, except as otherwise set out in this Addendum.
We will maintain technical and organisational measures in accordance with Applicable Data Protection Laws to protect the confidentiality, integrity, and security of Personal Data (including protection against unauthorised or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorised disclosure of, or access to, Personal Data), and to manage data security incidents affecting Personal Data.
8. SECURITY BREACH MANAGEMENT
8.1 We will comply with all applicable laws requiring notification to you of any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data Processed by us or our Sub-Processors of which we become aware (Breach Incident).
8.2 We will make reasonable efforts to identify the cause of that Breach Incident, notify you within a timely manner to allow you to meet your obligations to report a Breach Incident, and take steps we consider necessary and reasonable to remediate the cause of the Breach Incident, to the extent remediation is within our reasonable control.
9. AUDIT AND COMPLIANCE
Upon your written request, we will, at your cost, submit to your audits and inspections, and provide you all information necessary, to demonstrate that both you and we are complying with our respective obligations under Applicable Data Protection Laws (including our respective obligations under Article 28 of the GDPR).
10. DATA PROTECTION IMPACT ASSESSMENT
Upon your written request, we will, at your cost, provide you with reasonable assistance needed to fulfil your obligations under Applicable Data Protection Laws to carry out a data protection impact assessment relating to your use of Nextspace, to the extent you do not otherwise have access to the relevant information.
11. RETURN AND DELETION OF PERSONAL DATA
11.1 Subject to clauses 11.2 and 11.3, following termination of the Terms we will delete all Personal Data Processed by us or any Sub-Processor within a reasonable period from termination of the Terms.
11.2 Subject to clause 11.3, you may submit a written request to us within 10 working days of the termination of the Terms requiring us to, within 20 working days of your written request:
a) return a complete copy of all Personal Data by secure file transfer in a common format; and b) delete all other copies of Personal Data Processed by us or any Sub-Processor.
11.3 We, or each Sub-Processor, may retain Personal Data to the extent that it is required by applicable laws, if we ensure the confidentiality of all such Personal Data and ensure that such Data is only processed as necessary for the purposes required under applicable laws requiring its Processing and for no other purpose.
11.4 If we cannot delete all Personal Data due to technical reasons, we will inform you as soon as reasonably practicable and will take reasonably necessary steps to:
a) come as close as possible to a complete and permanent deletion of the Personal Data;
b) fully and effectively anonymise the remaining data; and
c) make the remaining Personal Data which is not deleted or effectively anonymised unavailable for future Processing.
12. CHANGES IN DATA PROTECTION LAWS
12.1 We may on at least 30 days' written notice to you from time to time, make any variations to this Addendum, which we consider (acting reasonably) are required because of any change in, or decision of a competent authority under, Applicable Data Protection Laws, to allow transfers and Processing of Personal Data to continue without breach of Applicable Data Protection Laws.
12.2 If you object to any variation under clause 12.1 on reasonable grounds, you may, despite anything to the contrary in the Terms, terminate these Terms and your right to access and use Nextspace without penalty on written notice, provided your notice of termination is received by us before the effective date of our notice. If you do not terminate these Terms and your right to access and use Nextspace in accordance with this clause, you are deemed to have agreed to the variation.
13. LIMITATION OF LIABILITY
The liability of each party to the other party under or in connection with this Addendum is subject to the limitations and exclusions setout in the Terms, and any reference in the Terms to the liability of a party means the aggregate liability of that party under the Terms and this Addendum together.
If any provision of this Addendum is, or becomes unenforceable, illegal, or invalid for any reason, the relevant provision is deemed to be varied to the extent necessary to remedy the unenforceability, illegality, or invalidity. If variation is not possible, the provision must be treated as severed from this Addendum without affecting any other provisions of this Addendum.
DETAILS OF PROCESSING
Nature and Purpose of Processing.
We will Process Personal Data as necessary to provide Nextspace in accordance with the Terms, as further specified in our online documentation relating to Nextspace, and as further instructed by you and your Personnel and other end users you allow to use Nextspace using Nextspace.
Duration of Processing.
Subject to clause 11 of this Addendum, we will Process Personal Data for the duration of the Terms, unless otherwise agreed upon in writing. Categories of Data Subjects You may submit Personal Data to Nextspace, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to, Personal Data relating to the following categories of data subjects:
- your personnel.
Type of Data.
You may submit Personal Data to Nextspace, the extent of which is determined and controlled by you in your sole discretion, and which may include, but is not limited to, the following categories of personal data:
- first and last name, email address and phone number (optional).
LIST OF SUB-PROCESSORS AS AT 27th January 2023
Sub-processor = AWS = processing and storage (meaning) = United States, France, Singapore, India, or Australia (location) = https://aws.amazon.com/compliance/data-privacy-faq/ (privacy information)
Sub-processor = Vultr = processing and storage (meaning) = United States, France, Singapore, India, or Australia (location) = https://www.vultr.com/legal/compliance/ (privacy information)