Data Acquisition and Licencing Agreement

relating to the Thor Poletest System

1. Definitions and Interpretation

1.1 Definitions

The following definitions apply in this agreement:

Agreement Date means the date of this agreement.

AMINZ means the Arbitrators' and Mediators' Institute of New Zealand Inc., an incorporated society in New Zealand with registered number 379524.

Business Day means any day, other than a Saturday, Sunday or public holiday in Christchurch New Zealand, as that term is defined in section 5(1) of the New Zealand Holidays Act 2003.

Commencement Date means the date stated in Schedule 1 or such other date as the Parties may agree in writing.

Confidential Information means:

(a) any non-public financial, business or commercial information relating to the Company or the Thor Poletest System (in any form) which the Customer may receive or obtain as a result of or in connection with the Company’s provision (or the Customer’s use) of the Thor Poletest System; and

(b) any other commercially sensitive information which is expressly designated as being confidential when it is disclosed by the Company (or any of its Related Parties).

Core Functionality means the production of proprietary pole condition information by analysing asset data supplied by the Customer and raw waveform data captured by the Customer when using the Thor Poletest System.

Customer’s Data means the Customer’s own data as inputed by the Customer while using the Thor Poletest System.

Default Rate means 10% per annum, calculated daily and capitalised monthly.

FieldKit means the fieldkit hardware used in the operation of the Thor Poletest System.

Force Majeure Event means the occurrence of an event after the Agreement Date that is beyond the reasonable control of a Party which cannot reasonably be avoided or overcome by that Party and which is not attributable to the actions of that Party, including:

(a) cyber warfare, cyber attacks, ransomware attacks or cyber sabotage;

(b) war, hostilities (whether war is declared or not), invasions, acts of foreign enemies, civil war, sabotage or piracy;

(d) operation of the forces of nature such as earthquakes, hurricanes, lightning, typhoons or volcanic activity;

(e) outbreaks of disease, epidemics or quarantine;

(f) instances of exceptionally adverse weather; and

(g) acts of government authority, whether lawful or unlawful.

For the avoidance of doubt, any strikes, lock-outs or other industrial disputes shall not constitute a "Force Majeure Event" for the purposes of this agreement, irrespective of whether they relate to a Party's workforce or not and whether they are beyond the reasonable control of that Party.

Further Term means a further term of 24 months.

Initial Term means the initial term of this agreement, commencing on the Commencement Date and ending after the period specified in Schedule 1.

Intellectual Property Rights means all intellectual property, proprietary and industrial rights arising in connection with the Company’s business and the Thor Poletest System (whether existing in statute, at common law or in equity), including:

(a) all copyright (including in source code and object code), rights in databases, know-how, trade secrets, methods (including business methods), technical and non-technical information, processes, characteristics, trade marks, trade names, business names, domain names, inventions, patents, design rights, discoveries and formulae;

(b) all designs, design details and specifications, concepts, sketches, photographs, working drawings, models and presentation materials;

(d) the right to sue or bring proceedings for passing off;

(e) all allied, similar and associated rights, whether registered or unregistered, registrable or unregistrable; and

(f) all applications to register, and all renewals of, any of the foregoing rights.

Licence means an individual user licence to access, use and operate the Thor Poletest System.

Licence Fees means the annual fee payable for each Licence as set out in Schedule 1.

Licence Plan means the unique plan applicable to each Licence, as set out in the Rate Card.

Rate Card means the details of each Licence Plan as set out in Schedule 1.

Records means all information and data held by the Customer in connection with this agreement and the Customer’s access and/or use of the Thor Poletest System. Records include but are not limited to, data and results, reports, invoices, letters, emails and notes of meetings. Records can be printed hard copies or soft copies stored electronically.

Related Parties means, in relation to a Party:

(a) any director, officer or employee of, or professional adviser to, that Party; and

(b) any related company (as defined in section 2(3) of the New Zealand Companies Act 1993 or such other applicable legislation in the relevant jurisdiction) of that Party.

Sales Tax means the relevant sales tax payable under the New Zealand Goods and Services Tax Act 1985, or such other applicable legislation in the relevant jurisdiction.

Services means the services set out in Schedule 2 (if any).

Service Fees means the aggregate Licence Fees for the use of the Thor Poletest System, calculated by multiplying the number of Licences purchased by the Customer by the Licence Fee as set out in Schedule 1.

Supplier Agreement means the Supplier Agreement relating to the Company’s engagement of the Supplier to market and sell the Thor Poletest System in a territory.

Term means the Initial Term together with any Further Terms (as the case may be).

Test means a single recorded FieldKit assessment of a timber pole as validated by the FieldKit as “complete” and stored by the system as a “test”.

Test Data means the data generated by the Thor Poletest System when a Test has been conducted or captured by the Customer when using the Thor Poletest System. For the avoidance of doubt, ‘Test Data’ only includes data that is commercially offered data values and does not include the underlying meta data collected during the course of a Test using the Thor Poletest System or the further data values collected during the processing phase of the Test Data.

Thor Poletest System means the FieldKit hardware, Android, IOS and Windows applications and cloud based portal software which enables the collection, access, viewing, management and analysis of the Test Data from Tests (including any supplementary or other data as applicable).

1.2 Interpretation

The following rules of interpretation apply in this agreement unless the context otherwise requires:

(a) References to the Parties include their respective executors, administrators, successors and permitted assignees.

(b) References to persons include natural persons, companies and any other body corporates (wherever incorporated) and unincorporated bodies (wherever formed).

(c) Headings and subheadings have been inserted for convenience only and will not affect the interpretation of this agreement.

(d) References to this agreement means this agreement, including its introduction and schedules, as amended and/or replaced from time to time.

(e) References to clauses and schedules are to those in this agreement.

(f) References to the words including, include or similar words do not imply any limitation and are deemed to have the words without limitation following them.

(g) A gender includes each other gender and the singular includes the plural and vice versa.

(h) Any references to currency are to the currency specified in Schedule 1, unless otherwise specified in this agreement.

(i) References to time and dates are to time and dates in New Zealand.

(j) All periods of time include the day on which the period commences and also the day on which the period ends.

(k) Where there are references in this agreement to the application of either New Zealand law or the law of the relevant jurisdiction of a Customer, to the extent there are any inconsistencies, New Zealand law will apply to the extent permissible.

(l) References to written or in writing shall include all modes of presenting or reproducing words, figures and symbols in a visible form (including via email).

(m) No rule of construction (including the contra proferentem rule) applies to the disadvantage of a Party because that Party (or its relevant advisor) was responsible for the drafting of this agreement or any part of it.

2. Agreement and Term

2.1 Agreement

The Parties agree that the intention of the operation of this agreement is as follows:

(a) the Customer is granted a licence by the Company to access and use the Thor Poletest System;

(b) the Customer selects its preferred Licence Plan and pays the applicable Licence Fees;

(d) the Customer may request the Company to perform the Services (if any).

2.2 Initial Term

This agreement commences on the Commencement Date and continues for the Initial Term unless terminated earlier in accordance with either of clauses 10 and 11.2(a) or extended for a Further Term in accordance with clause 4.10.

3. Fees and Payment Terms

3.1 Fees

In consideration for the provision of the Thor Poletest System and the Test Data, during the Term, the Customer will pay to the Company the Service Fees, which are payable in the manner and on the frequency described in Schedule 1.

3.2 Sales tax

All fees and charges payable by the Customer under this agreement are exclusive of Sales Tax and Sales Tax will be payable in addition to the Service Fees.

3.3 Default interest

If a sum required to be paid by the Customer under this agreement is not paid to the Company on the due date the Customer shall also pay interest on that sum at the Default Rate for the period beginning on the due date and ending on the date that the sum is paid by the Customer.

3.4 Disputed Invoices

(a) If the Customer disputes all or part of an invoice it must promptly notify the Company in writing of this fact, clearly setting out the reasons for the dispute.

(b) The Customer must pay any undisputed balance of an invoice.

(c) If the Customer does not dispute an invoice within 10 Business Days of receipt, it will be deemed to have accepted the invoiced amount in full.

4. Thor Poletest System, Test Data and Services

4.1 Services

The Company agrees to grant the licence for access to and use of the Thor Poletest System, perform the Services for the Customer and provide the Test Data to the Customer, on the terms and subject to the conditions set out in this agreement.

4.2 Set-up, establishment and use

During the Term, the Company grants to the Customer a non-exclusive and non-transferrable right to use the Thor Poletest System. Prior to the delivery of the Thor Poletest System, the Company will set-up and establish the FieldKits (including activities such as registering serial numbers, pairing and calibrating).

4.3 Delivery of FieldKits

Unless otherwise specified in Schedule 1, the Customer agrees and acknowledges that delivery, freight, shipping and/or handling are not included in the Licence Fees and any delivery, freight, shipping and/or handing fees will be in addition to the Licence Fees.

4.4 Customisation

Where a Customer requires customisation to the Thor Poletest System, FieldKits, software and/or operating systems, and the Company is able to offer this service, the Company is entitled to charge the Customer on a time in attendance basis as set out in Schedule 2.

4.5 Additional Services

The Customer may request the Company to perform the additional services as set out in Schedule 2 and agrees and acknowledges that if the Company agrees to provide the additional services, the Company may charge additional fees for these additional services at the Company’s usual rates.

4.6 Training and Support

Other than in accordance with clause 5.3, if the Customer requires any training and/or additional support, and the Company agrees to provide such training and/or additional support, the Customer must pay for that training and/or support in addition to the Licence Fees. Fees for training and additional support will be charged at the Company’s usual rates.

4.7 Tests

Each Licence includes the number of Tests as set out in Schedule 1. The Customer may elect the total number of Tests to be either:

(a) aggregated over the total number of Licences; or

(b) unique to each Licence.

The Customer may purchase additional Tests on the Company’s usual rates.

4.8 Updates

The Company may from time to time and at its discretion introduce upgrades and updates to the Thor Poletest System at no additional charge to the Customer. Those upgrades and updates will not detrimentally affect the Core Functionality of the Thor Poletest System.

4.9 Suspended access and use

In the event that the Customer:

(a) fails to pay any amount owing to the Company pursuant to this agreement (other than a disputed amount in accordance with clause 3.4); or

(b) misuses the Thor Poletest System or uses it for adverse purposes (such as in clause 7.3); or

the Company will be entitled to suspend all or any of its obligations under this agreement and the Customer’s access and use of the Thor Poletest System, until such time that the Customer rectifies the matter or circumstances giving rise to the suspension pursuant to this clause 4.9.

4.10 New FieldKit Releases

If, during the Term (but not before half of the Initial Term or the then Further Term has passed), the Company develops, creates, enhances or manufactures new and improved hardware relating to the FieldKit, the Customer may elect to exchange the FieldKit, returning the incumbent FieldKit and receiving a new FieldKit for use with the Licence. Unless otherwise agreed by the Company, doing so shall have the effect of renewing this agreement on the same terms from the date of the exchange for a Further Term.

5. Company’s Obligations

5.1 Obligations

During the Term of this agreement, the Company will be liable for:

(a) maintaining each FieldKit’s underlying sensors;

(b) all firmware/software of the Thor Poletest System;

(d) manufacturer failures insofar as it impacts the integrity of the Thor Poletest System,

and the Customer will be liable for:

(e) any damage; or

(f) loss or partial loss,

of the FieldKit and/or Thor Poletest System, as set out in clause 5.5 or 10.8 (as the case may be).

5.2 Inspection

Where a FieldKit is to be inspected for damage or malfunction pursuant to clause 5.1, the Company shall undertake such inspection free of charge, provided that the Customer will be liable for freight, delivery, shipping and/or handling to the Company’s nominated address and the return to the Customer’s nominated address. For the avoidance of doubt, where inspection is required pursuant to either of clauses 5.1(e) and 5.1(f), the Customer will be liable for all fees.

5.3 Training and Support

Once FieldKits have been received by a Licence user, the Company will provide up to five hours of training and support (via audio visual capability). Where multiple Licences have been procured by the Customer, the Company will only be obliged to provide one training and support session, which if the Customer wishes, may be delivered to the Customer’s intended users of the FieldKits concurrently.

5.4 Training and Support for New FieldKits

Where a Customer receives new FieldKits pursuant to clause 4.10, the Company agrees to provide reasonable additional training and support to the Customer but the Company will only be obliged to provide one training and support session, which if the Customer wishes, may be delivered to the Customer’s intended users of the FieldKits concurrently.

5.5 Damage or failure to return FieldKits

If the Customer:

(a) fails to return a FieldKit or FieldKits (as the case may be) or fails to return all parts of a FieldKit or FieldKits (as the case may be), in the condition a FieldKit or FieldKits were provided to the Customer; or

(b) other than on the termination of this agreement (which is dealt with at clause 10), returns a FieldKit or FieldKits (as the case may be) in a manner which, in the reasonable opinion of the Company, is damaged, faulty on inoperable (due to the acts or omissions of the Customer),

the Customer will be liable to pay to the Company either:

(c) the fees charged by the Company for the Company to return the Field Kit to the condition in which it was provided to the Customer by repair and/or replacement of any necessary parts of the FieldKit(s); or

(d) USD20,000 per FieldKit in instances of a FieldKit not being returned, or where the Company deems, in its sole and absolute discretion, that the FieldKit is not repairable.

5.6 Test Data

Subject to the Licence Plan selected by the Customer, the Customer acknowledges that the Licence Plan allows the Customer to collect the Test Data for the number of Tests included within that Licence Plan per annum. If a Customer fails to collect Test Data or use the number of tests available to the Customer in that Licence Plan in any given year of the Term, the Customer forfeits its rights to those Tests and the resulting Test Data.

6. Customer’s Obligations

6.1 Obligations

During the Term of this agreement, the Customer will:

(a) procure that its employees, agents, contractors and officers use and access the Thor Poletest System for the purpose for which it was acquired pursuant to this agreement;

(b) ensue each Licence user accesses the Thor Poletest System with his or her authorised work email address (including complying with all authenticator requirements);

(d) provide all Records to the Company relating to the Thor Poletest System and/or this agreement that the Company reasonably requests. All Records provided by the Customer must be in a format that is useable by the Company and delivered within a reasonable time of the request. The Customer must co-operate with the Company to provide Records immediately if the Records are required by the Company to comply with an audit, or its statutory or other reporting obligations.

7. Intellectual Property Rights

7.1 Ownership of Intellectual Property

As between the Customer and the Company, all rights, title and interest, including all Intellectual Property Rights, relating to either the Thor Poletest System (or the Company’s intellectual property existing before the Agreement Date), including software and documentation (including without limitation all upgrades, updates, improvements, enhancements, modifications and derivative works of any of them) remain with the Company. Nothing in this agreement grants to either Party any ownership or other Intellectual Property Rights of the other Party other than as expressly set out in this Agreement.

7.2 Copies of Intellectual Property Rights

The Customer may make sufficient copies of user documentation to support its use of the Thor Poletest System in accordance with this agreement, but must use such copies for the sole purpose of its own use of the Thor Poletest System.

7.3 Limits on Use

The Customer must not attempt to sublicense, modify, deconstruct, adapt, or reverse engineer the software or FieldKit used to provide or host the Thor Poletest System (but not the Customer’s Data). For the avoidance of doubt, nothing in this clause 7.3 shall affect any rights the Customer may have in relation to the software or FieldKits under any other agreement which may be entered into between the Company and the Supplier in relation to the Thor Poletest System, including but not limited to, the Supplier Agreement.

7.4 Test Data

The Parties agree that on creation of the Test Data (but subject always, to payment by the Customer to the Company under this agreement), all rights, title to and interest in the Test Data will become the sole property of the Customer.

7.5 Company’s Interest in Customer’s Data and Test Data

The Company has no right, title to or interest in the Customer’s Data or the Test Data other than a right to store and process the Customer’s Data and/or the Test Data in conjunction with making the Thor Poletest System available to the Customer. For the avoidance of doubt, the Customer agrees and acknowledges that the Company has the right to use the Customer’s Data and/or the Test Data relating to its Tests, provided that such data is used in an anonymous manner and is aggregated with all other global test data and used for the purposes of improving the Thor Poletest System.

7.6 Enforcement of title

The Customer agrees to take all actions as may be reasonably required by the Company to perfect or enforce the Company's title to the Intellectual Property Rights, which shall include executing and delivering any document required in order to perfect or enforce such title (including, for the avoidance of doubt, a deed of assignment of intellectual property).

8. Confidentiality, Privacy and Data Protection

8.1 Confidentiality obligations

Except as permitted in this clause 8, the Customer will not disclose or communicate to any third party any Confidential Information.

8.2 Disclosure to Related Parties

The Customer may disclose Confidential Information to its Related Parties, but only where its Related Parties have agreed in writing to comply with its confidentiality obligations under this agreement.

8.3 Limits on obligations

The Customer will not have to observe any duty of confidentiality concerning Confidential Information that:

(a) the Company gives its prior written consent to the disclosure of;

(b) is required to be disclosed by law or any legislative or regulatory authority; or

(c) at the time of disclosure is in, or subsequently enters, the public domain otherwise than by breach of any duty of confidentiality under this agreement,

provided that if a Party is legally required to disclose any Confidential Information that Party will:

(d) immediately notify the other Party of such requirement;

(e) fully co-operate, at the other Party’s cost, with all legal actions taken by the other Party to avoid or limit such disclosure; and

(f) if the receiving Party cannot avoid such disclosure, the receiving Party will:

(i) only disclose such portions of the Confidential Information as is legally required; and

(ii) use its reasonable endeavours to obtain assurances that such information will be treated as confidential by any person to whom it is disclosed.

8.4 Privacy and Data Protection

The Customer acknowledges and agrees that all data collected, stored and used (including the Customer’s Data and any Test Data) will be dealt with in accordance with the Company’s privacy policy, a copy of which is available on request.

9. Warranties and Liabilities

9.1 Company Warranties

The Company warrants that it will:

(a) use its commercially reasonable efforts to maintain the systems associated with the Thor Poletest System free from viruses and other harmful code; and

(b) use its reasonable efforts to ensure the Services are performed in a professional, workmanlike manner commensurate with the industry practices in the industry in which the Company operates.

9.2 Customer Warranties and Acknowledgment

The Customer acknowledges and warrants to the Company that:

(a) at no point will the Customer have any ownership rights in the FieldKits;

(b) it will not, at any time during the Term of this agreement, part with possession of the FieldKits; and

9.3 Warranties Excluded

Except as is expressly set out in this agreement, all terms, conditions, representations and warranties are excluded to the maximum extent permitted by the laws of New Zealand and/or applicable laws in the relevant jurisdiction.

9.4 Capacity Warranties

Each Party warrants that it:

(a) is legally incorporated under the laws of the jurisdiction of its incorporation; and

(b) has the power and authority to enter into this agreement.

9.5 No Reliance

The Customer acknowledges that it has carried out appropriate investigations and relied on its own knowledge or independent advice or both in assessing the risk, contingencies and circumstances that could affect its decision to enter into this agreement and use the Thor Poletest System.

9.6 Exclusion of Liability

To the extent permitted by the laws of New Zealand and/or applicable laws in the relevant jurisdiction, the Company excludes all liability to the Customer (whether by damages or otherwise) for any consequential, economic or indirect loss or damage arising out of this agreement or the Thor Poletest System or in connection with either of them. This exclusion applies whether the Company’s liability arises in contract, tort (including negligence) or otherwise.

9.7 Limitation of Liability

The Company’s liability to the Customer for breach of any term of this agreement or arising out of the provision of the Thor Poletest System and whether in contract, tort or otherwise is limited to the Service Fees received by the Company for provision of the Thor Poletest System in the 12 months preceding the date on which Customer’s claim arose.

9.8 Consumer Guarantees Act 1993 and Fair Trading Act 1986

In respect of this agreement (where the Customer is in New Zealand):

(a) subject to clause 9.8(b), where the Consumer Guarantees Act 1993 (CGA) and/or the Fair Trading Act 1986 (FTA) apply nothing in this agreement will contract out of or limit the application of either the CGA or the FTA (as the case may be).

(b) where the Customer is “in trade” within the meaning of the FTA or the CGA (as the case may be), the Parties agree to contract out of the CGA and sections 9, 12A, 13 and 14 of the FTA.

(c) where a Customer is in trade and accordingly clause 9.8(b) applies, the Customer acknowledges that the effectiveness of contracting out of the CGA and FTA is subject to compliance with the statutory tests including that it is fair and reasonable that the Customer be bound by those terms.

(d) where the Company is supplying the Thor Poletest System and the Services to the Customer other than a customer that is in trade the provisions of clauses 9.8(b) and 9.8(c) above will have no effect and the provisions of the CGA and the full provisions of the FTA will apply.

9.9 Acknowledgement of Test Limitations

The Customer acknowledges that the Thor Poletest System uses a rapid, repeatable and reproducible integrity test which requires a certain degree of competency in its use. The Customer further acknowledges the extreme variability of timber and pole loads and that the Thor Poletest System may not be an exhaustive assessment of the pole and other environmental factors may impact the pole’s performance. Results are provided by comparative analysis of test data and against targeted characteristics and properties, in the context of user inputted timber pole types and diameters. Use of the Thor Poletest System as the final arbitrator of timber pole condition and its ‘fitness for purpose’ is at the sole discretion of the Customer.

9.10 Consumer Protection Legislation

In respect of this agreement (where the Customer is not in New Zealand):

(a) where the Customer is “in trade” as that term is understood in applicable legislation in the relevant jurisdiction of the Customer (as the case may be), the Parties agree to contract out of any consumer protection legislation to the maximum extent permitted by law.

(b) where the Company is supplying the Thor Poletest System and the Services to the Customer other than a customer that is “in trade”, any applicable consumer protection legislation in the relevant jurisdiction will apply.

9.11 Third Party Issues

Other than as provided for in physical cables, Bluetooth functionality, IOS/Android/Windows mobile applications included in the FieldKit for the purposes of data transfer, the Company does not provide any guarantee and has no liability to the Customer in respect of the communications and computer links between the Customer and the Company allowing access to and use of the Thor Poletest System.

10. Termination

10.1 Termination at the end of the Term

This agreement will automatically terminate at the end of the Term (without the requirement for notice) unless it is terminated earlier under this clause 10.

10.2 Termination by mutual agreement

Prior to the end of the Term, the Parties may mutually agree in writing that this agreement will terminate.

10.3 Termination for cause

If a Party commits a material breach of this agreement that:

(a) is not remediable; or

(b) is remediable, and the defaulting Party does not remedy that breach within five Business Days of being required to do so in writing by the non-defaulting Party,

then the non-defaulting Party may terminate this agreement with immediate effect by giving written notice to the defaulting Party.

10.4 Termination for insolvency

Either Party may terminate this agreement with immediate effect by giving written notice to the other Party if that other Party:

(a) becomes insolvent or otherwise cannot pay its debts as and when they fall due;

(b) has a receiver, administrator or liquidator appointed in relation to all or a material part of its assets;

(d) commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or enters into any composition or arrangement with its creditors generally;

(e) has an order made or a resolution passed for its liquidation, dissolution or winding-up; or

(f) any other analogous insolvency event in any applicable jurisdiction which applies to a Party.

10.5 Termination as a result of a Force Majeure Event

Either Party shall be entitled to terminate this agreement in accordance with clause 11.2(a) where a Force Majeure Event has occurred.

10.6 Service Fees

Where this agreement is terminated in accordance with either of clauses 10.2 or 10.3, the Customer agrees that the outstanding Service Fees for the remainder of the Term will become due and payable by the Customer to the Company.

10.7 Effect of termination

Upon termination of this agreement (for whatever reason), the following provisions shall apply:

(a) the Customer will promptly deliver to the Company all property, materials or equipment relating to the Thor Poletest System including the FieldKit, belonging to or concerning the Company or any property owned by the Company which is in the Customer's possession or control. This shall include any and all hard-copy, audio or electronic documents that relate to the Company or any property owned by it or that contains Confidential Information or Intellectual Property.

(b) the Customer will no longer be able to access the Customer’s Data or the Test Data via the Thor Poletest System. Accordingly and unless otherwise agreed between the Parties, the Company will promptly deliver to the Customer a CSV file containing a summary of each Test captured by the FieldKits associated with the Customer’s Licences at the time of termination.

(c) all amounts owing by the Customer to the Company will immediately become due and payable, including those set out in clause 10.6.

(d) all rights granted by the Company to the Customer under or relating to this agreement shall immediately cease.

10.8 Damage or failure to return FieldKits on Termination

If the Customer:

(b) returns a FieldKit or FieldKits (as the case may be) in a manner which, in the reasonable opinion of the Company, is damaged, faulty or inoperable (due to the acts or omissions of the Customer),

the Customer will be liable to pay to the Company either:

(d) NZD36,000 per FieldKit in instances of a FieldKit not being returned, or where the Company deems, in its sole and absolute discretion, that the FieldKit is not repairable.

10.9 Accrued rights and obligations on termination

Termination of this agreement will not affect any accrued rights or obligations of any of the Parties.

10.10 Enduring effect

The Parties agree that the provisions of clauses 7, 8, 9,10,12, 14 and 15 shall survive the termination of this agreement.

11. Force Majeure

11.1 Force Majeure Events

Neither Party shall be liable to the other, or be deemed to be in breach of this agreement, as a result of any delay or failure to perform its obligations due to any Force Majeure Event, provided that it:

(a) takes reasonable steps to perform: takes all reasonable steps to perform its obligations and/or alleviate the delay; and

(b) written notice of Force Majeure Event: provides written notice of the nature and extent of the Force Majeure Event and the likely delay to the other Party as soon as reasonably practicable.

11.2 Right of termination or suspension

In the event that a Force Majeure Event continues for more than 60 Business Days, then:

(a) termination rights: either Party may terminate this agreement by giving no less than 20 Business Days' written notice; or

(b) suspension: the Parties may agree in writing to suspend all or any of their obligations under this agreement.

11.3 Cessation of Force Majeure Event

This clause 11 shall cease to apply in respect of a Force Majeure Event when:

(a) Force Majeure Event ceases: that Force Majeure Event no longer has any effect on the performance of the Party's obligations in this agreement; and

(b) notice of cessation: that Party has given written notice to the other Party that the Force Majeure Event has ceased.

12. Dispute Resolution

12.1 Negotiation

The Parties must use reasonable endeavours to resolve any and all Disputes by good faith negotiations. If a Dispute is settled at or following negotiations under this clause 12, such settlement shall be recorded in writing and be signed by the Parties, whereupon it shall be final and binding on the Parties.

12.2 Mediation

If the Parties cannot resolve their Dispute by negotiations under clause 12 within 10 Business Days, a Party may, by written notice to the other Party, require that the Dispute be dealt with by mediation under the following terms:

(a) mediation agreement: the mediation shall be conducted in accordance with the AMINZ’s standard mediation agreement.

(b) mediator: the mediation shall be conducted by a mediator and at a fee jointly agreed in writing by the Parties. Failing agreement between the Parties within 10 Business Days of the giving of the notice requiring mediation, the mediator will be selected and his or her fee determined by the chairperson for the time being of AMINZ (or his or her nominee).

(c) location: unless otherwise agreed between the Parties in writing, the mediation shall take place in Christchurch, New Zealand at such address as determined by the mediator.

(d) settlement: if the Dispute is settled at or following mediation under this clause 12.2, such settlement shall be recorded in writing and be signed by the Parties, whereupon it shall be final and binding on the Parties.

(e) costs: the costs of the mediation, excluding the Parties' own legal and preparation costs, will be shared equally by the Parties.

12.3 Arbitration

If the Dispute is not resolved within 10 Business Days of the completion of the mediation procedure set out at clause 12.2 above, a Party may require the Dispute to be resolved by arbitration by giving written notice to this effect to the other Party. The arbitration shall be conducted as follows:

(a) arbitrator: by a single arbitrator, who shall be jointly agreed in writing by the Parties. Failing agreement between the Parties within 10 Business Days of the giving of the notice requiring arbitration, the arbitrator shall be appointed by the then President of AMINZ (or his or her nominee) on the written request of any of the Parties.

(b) location: unless otherwise agreed between the Parties in writing, the arbitration shall be held in Christchurch, New Zealand at such address as determined by the arbitrator.

(c) Arbitration Act 1996: the arbitration shall be governed by the New Zealand Arbitration Act 1996 (including schedules one and two of that Act).

(d) final and binding: the decision of the arbitrator shall be recorded in writing and be final and binding on the Parties.

(e) costs: the costs of arbitration, excluding the Parties' own legal and preparation costs, will be shared equally by the Parties.

(f) expedite proceedings: each Party shall co-operate in good faith to expedite, to the maximum extent practicable, the conduct of any arbitral proceedings commenced under this clause 12.

12.4 Court proceedings

No Party may initiate or commence proceedings in New Zealand (or any other jurisdiction) relating to a Dispute unless it has complied with the procedure set out in this clause 12, provided that application may still be made exclusively to the New Zealand courts:

(a) interlocutory relief: for interlocutory relief;

(b) debts: to recover a debt payable;

(d) enforce arbitration decision: to enforce the decision of the arbitrator under clause 12.3.

12.5 Waiver

The Parties waive, to the fullest extent that they may legally and effectively do so, any objection the Parties may have now or hereafter to bring a claim arising out of or in connection with this agreement or its subject matter other than in the courts of New Zealand. The Parties agree that a final judgement of any legal proceedings in New Zealand in connection with this agreement or its subject matter shall be conclusive and may be enforced in other jurisdictions.

13. Insurance

13.1 Customer's insurance

For the Term of this agreement, the Customer must:

(a) hold insurance with a reputable insurance firm for an amount suitable to cover:

(i) the liability assumed by it under this agreement in relation to its use of the Thor Poletest System (including professional indemnity and public liability insurance where required); and

(ii) the full repair and/or replacement of the number of FieldKits provided to it under this agreement;

(b) ensure that all premiums in connection with such insurance are duly paid; and

13.2 Evidence of insurance

On the Company's written request, the Customer will promptly provide the Company with reasonable evidence of the insurance required under clause 13.1 being in place, including a copy of the applicable insurance policy or policies and/or a certificate of currency or insurance certificate from the insurer.

14. Notices

14.1 Written notice

All notices and other communications to be given under this agreement must be:

(a) written: in writing;

(b) language: in the English language; and

(c) form of delivery: addressed to the Party to whom it is to be sent at the physical address or email address from time to time designated by that Party in writing to the other Party.

14.2 Designated addresses

Until any other designation is given under clause 14.1, the physical address and email address of each Party is as follows:

Thor Poletest Limited:

Attention: Commercial Lead

Address: 2/155 Blenheim Road, Riccarton, Christchurch 8041, New Zealand

Email: sales@thorpoletest.com

DAC POWER LIMITED

Attention: Martin Curtis

Address: 71-72 Sudbrooke House Llanthony Road Gloucester Gloucestershire GL1 5SH United Kingdom

Email: martin.curtis@dacpower.co.uk

14.3 Deemed delivery

Any notice or communication given under this agreement shall be deemed to have been received:

(a) by hand: if delivered by hand, at the time of delivery; or

(b) by email: if sent by email, on the date and time at which it enters the recipient's information system, as evidenced (if required by the recipient, where delivery is disputed) in a confirmation of delivery report from the sender's information system which indicates that the email was sent to the email address of the recipient.

14.4 Notices received after hours or on non-Business Days

Any notice or communication received or deemed received after 5.00pm or on a day which is not a Business Day in the place to which it is delivered, posted or sent will be deemed not to have been received until the next Business Day in that place.

15. General Provisions

15.1 Entire agreement

This agreement constitutes the entire agreement and understanding of the Parties relating to the matters dealt with in this agreement and supersedes and extinguishes any previous agreement, discussions, negotiations, promise, assurance, warranty and representation (whether oral or written) between the Parties in relation to such matters. Nothing in this clause 15.1 operates to limit or exclude any liability for fraud. For the avoidance of doubt, unless expressly contemplated by this agreement, neither this clause 15.1, nor any other provision in this agreement, shall affect the operation of any other agreement which may be entered into between the Company and the Supplier in relation to the Thor Poletest System, including but not limited to, the Supplier Agreement.

15.2 Capacity

Each Party warrants and represents to the other Party that:

(a) power and authority: it has full power and authority to enter into this agreement;

(b) consents, authorisations and approvals: all consents, authorisations and approvals that are necessary or required of that Party in connection with the signing of this agreement, and the assumption of rights and obligations under it, have been obtained or effected (including the passing of all resolutions); and

(c) no breach: the signing, delivery and performance of this agreement does not constitute a breach of any law or obligation, and will not cause or result in any default or breach under any other agreement or arrangement, by which that Party is bound and which would prevent that Party from entering into or performing its obligations under this agreement.

15.3 Assignment

(a) Customer: The Customer shall not be permitted to assign or transfer any of its rights or obligations under this agreement without the prior written consent of the Company (such consent will be at the Company’s absolute discretion).

(b) Company: The Company shall be entitled in its sole discretion to assign and transfer any of its rights or obligations under this agreement, and the consent of the Customer shall not be required for any such assignment or transfer. The Company must promptly give written notice to the Customer of any such assignment.

15.4 Change of control

If there is a change in the effective management, control or ownership of the Customer (Change of Control), and the Customer has not obtained the prior written consent of the Company to the Change of Control (such consent to be at the Company’s absolute discretion), the Customer will be deemed to have committed a material breach of this agreement.

15.5 No waiver

No Party will be deemed to have waived any right under this agreement unless the waiver is in writing and signed by that Party. A failure to exercise or delay in exercising any right under this agreement will not operate as a waiver of that right. Any such waiver will not constitute a waiver of any subsequent or continuing right or of any other provision in this agreement.

15.6 Amendments

This agreement may not be amended or varied in any way unless such amendment or variation is made in writing and signed by each Party.

15.7 Severability

If any provision of this agreement is found by a court or other competent authority to be void or unenforceable, such provision will be deemed to be deleted from this agreement and the remaining provisions of this agreement will continue in full force and effect.

15.8 Rights and remedies

Unless otherwise provided in this agreement, the rights and remedies set out in this agreement are in addition to, and not in limitation of, any other rights and remedies under or relating to this agreement (whether at law or in equity). The exercise of one right or remedy will not be deemed a waiver of any other right or remedy.

15.9 Specific performance

The Parties agree that damages alone would not be an adequate remedy for any breach of the terms of this agreement by the other Party. Accordingly, each Party shall be entitled, without proof of special damages, to the remedies of specific performance, injunction or other equitable relief for any threatened or actual breach of any term of this agreement.

15.10 Compliance with laws

Each Party agrees to comply with all applicable laws affecting the operation of this agreement, the performance of the Services and the use of the Thor Poletest System and FieldKits.

15.11 Counterparts

This agreement may be signed and delivered in any number of counterparts, including by way of electronic transmission where a Party signs a counterpart and sends it as a PDF to the other Party by email. All such counterparts, when taken together, shall constitute one and the same instrument and, notwithstanding the date of execution, will be deemed to bear the Agreement Date.

15.12 Electronic signatures

A Party may sign this agreement by way of the application of that Party's electronic signature in accordance with Part 4 of the New Zealand Contract and Commercial Law Act 2017 or applicable legislation in the relevant jurisdiction required to bind that Party.

15.13 Governing law and jurisdiction

Regardless of the locality of the Customer, this agreement, and any claims arising out of or in connection with it or its subject matter will be governed by and construed in accordance with the laws of New Zealand and the Parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand for any matter arising under or relating to this agreement.