Terms of Business for services provided by Cortex Limited.

Sections 1 to 5

Definitions, scope, deliverables, fees, and payment

1 Definitions

1.1 “Agreement” or “TOB” shall mean these Terms of Business and all exhibits attached hereto, together with all Statement of Works executed hereunder and all exhibits, schedules, and appendices attached thereto.

1.2 “Customer Project Manager/Coordinator” shall mean an account manager appointed by the Customer with responsibility for this Agreement and any Statement of work under it.

1.3 “Customer Input” shall mean all materials developed or provided by the Customer for use on a Project (including systems, methodologies, software and Third Party Components).

1.4 “Effective Date” shall mean the date of signing this Agreement or the date of signing the Statement of Work depending on the context.

1.5 “Deliverables” shall mean all items described in a Statement of Work to be delivered to Customer by Cortex pursuant to such Statement of Work.

1.6 “Group Company” shall mean (in relation to each Party) any direct or indirectly controlled subsidiary, affiliate or parent company of a Party.

1.7 “Project” shall mean the Customer’s undertaking under one or more Statement(s) of Work for which Cortex’s Services are required.

1.8 “Services” shall mean all services (including without limitation all Deliverables) described in a Statement of Work or with regard to the Project that typically need to be performed by Cortex.

1.9 “Cortex Project Manager” shall mean an account manager appointed by Cortex with responsibility for this Agreement and any Statement of Work under it.

1.10 “Specifications” shall mean Customer’s written description of the functional and technical requirements, operations, and procedures for a given Deliverable or Project forming an integral part of the Statement of Work.

1.11 “Statement of Work” shall mean each mutually acceptable written statement of work for a Project that Customer and Cortex enter into from time to time hereunder, each of which shall, when executed by both parties, form a part of this Agreement and become subject to the terms and conditions of this Agreement.

1.12 A “Working Day”, time and material based, shall mean:

• One normal working day will be invoiced, including travel time (travel time not to exceed one (1) hour per working day), as eight (8) hours spent between 8:00 and 18:00 hrs, from Monday to Friday.
• Unless explicitly required by the Customer, Cortex shall not provide Services on public holidays effective at the place/location of performance.
• Once normal working hours have been exceeded the charges will be at 1.25 times the normal. Such Services require the Customer’s prior written approval.
• In case parties agree to work on Saturday and Sunday the work is charged at 1.5 times the daily. Such Services require the Customer’s prior written approval.
• Services performed on public holidays are charged at twice the daily rate. Such Services require the Customer’s prior written approval.
• Services provided for less than eight (8) hours are charged on an hourly basis.

2 Scope of Services

2.1 Statements of Work (SOW). Customer hereby agrees to retain Cortex to perform the Services set forth in each mutually accepted SOW, and Cortex hereby agrees to perform such Services for Customer, subject to the terms and conditions set forth in this Agreement. In the event of conflict between this Agreement and a SOW, the provisions of such SOW for the particular Project shall prevail.

2.2 Third-Party Components. Cortex shall not include any third-party products or materials as part of any Deliverable (“Third-Party Components”), unless specified in the applicable SOW for such Deliverable. Except as the parties otherwise agree in the applicable SOW, Customer will be responsible for obtaining appropriate licence(s) for such Third-Party Components and for paying applicable licence fees to the applicable third-party vendor. Cortex shall be responsible for providing reasonable assistance to Customer for securing all such licences required from third parties for Customer’s use of any such Third-Party Components.

2.3 Change Orders. Either party may request a written change order (“Change Order”) to the scope of Services specified in a SOW in the event of actual or anticipated change(s) to the agreed scope of Services as specified in such SOW. No Change Order shall be binding on the parties unless it is in writing and signed by the Customer Project Manager/Coordinator (or one of his superiors) and the Cortex Project Manager. No work will begin on changes until such signatures have been obtained. In the event of such an error or omission by Cortex, Cortex will allocate the resources necessary to meet the Project timeline and delivery requirements, at no additional charge to Customer, except to the extent that such error or omission was caused by Customer. It is understood and agreed that if a Customer’s request for a Change is later withdrawn but results in delay to the performance of the Services and Cortex has informed Client of the possibility of a delay caused by the request, Cortex shall not be liable for that delay and shall be entitled to a reasonable extension of time for performing its duties. The timeline for delivery of a Project shall be deemed changed accordingly.

2.4 Changes in Staff. Cortex will endeavour to keep changes in staff to a minimum in order to maintain continuity on a Project, but reserves the right to make changes (temporary or final substitutions) if necessary. The Customer may not refuse alternative personnel offered by Cortex unless the Customer gives valid written reasons to Cortex’s reasonable satisfaction within ten (10) days of meeting the proposed substitute. Delivery dates or deadlines shall not be extended in the event of Cortex’s decision to make changes with regard to Project personnel.

2.5 Quotation and price.

2.5.1 Where a quotation is given by Cortex for services:

1. Unless otherwise agreed the quotation shall be valid for 21 days from the date of issue.
2. The quotation shall be exclusive of goods and services tax unless stated otherwise.
3. The quotation will be a minimum of two (2) hours.

2.5.2 Cortex reserves the right to alter the quotation at any time:

1. Due of circumstances beyond its control
2. Where the Customer varies the original requirements
3. Where fees are required in addition to the quotation, for example, but without limitation, Apple store fees, licence fees etc, the Customer agrees to pay for the additional cost.

2.5.3 Where the Customer wishes to vary a project:

1. The Customer must submit a written request to Cortex outlining the requested variation
2. Cortex must within three (3) working days, notify the Customer of any extensions to time to carry out the project, of any additional costs arising from carrying out the development and any change to the Quote.

2.6 Delivery Times. Cortex delivery time-frames will be dependent on the total number of hours quoted for a project: For every 8 hours quoted we require a minimum of three (3) working days for turnaround. Minimum turn-around time is three (3) working days. e.g. 40 hours is a minimum of 15 working days.

If the Customer would like a project to be completed to a specific deadline that does not fit within Cortex’s standard delivery time-frames they must inform Cortex before a quotation is given. This may incur rush fees.

3 Review and Acceptance of Deliverables

3.1 Acceptance Tests. If the SOW includes any specific Deliverables, the Customer shall prepare draft test data, test scripts and test plans, which in the Customer’s reasonable opinion are suitable to test whether the Deliverables meet the Specification in all material respects. The Customer shall submit the draft tests to Cortex for its approval and agreement including proposed dates for acceptance testing in accordance with the agreed timelines. Cortex shall not object to the draft acceptance tests and acceptance criteria unless it can demonstrate that they are not included in the Specification, in which case the Customer shall make such changes to the draft acceptance tests as may be necessary or submit a Change Order.

3.2 Review and Testing of Deliverables. Following Cortex’s delivery of each Deliverable to Customer, Customer will review and, if appropriate, test such Deliverable against the acceptance tests; if such acceptance tests do not exist, then the Deliverable must meet the Customer’s Specifications and its reasonable satisfaction. Customer will perform its review and testing of each Deliverable, and communicate conformity, or lack thereof, within two (2) weeks following the date on which Cortex provides Customer with the Deliverable and notifies Customer that the Deliverable is available and ready for such review and testing. Review and testing of delayed Deliverables does not constitute acceptance of a delay. Cortex agrees to assist Customer in the acceptance test, upon request by Customer and accepting the testing criteria

3.3 Revision of Deliverables. If the Customer reasonably determines that a Deliverable fails to conform to its corresponding Specifications under the applicable SOW, or meet the acceptance criteria specified in the applicable SOW (or Customer’s reasonable satisfaction if no such acceptance criteria exists), then Customer will submit a written statement to the Cortex Project Manager specifying such non-conformities in detail. Cortex will review this statement and respond within a reasonable period of time. In the event Customer is deemed by Cortex (acting reasonably and having consulted with Customer) to have a justifiable issue, Cortex shall, at no additional cost to Customer, promptly correct all specified non-conformities and resubmit the Deliverable for additional review and testing by Customer under the procedures set forth in Section 3.2 above.

3.4 Acceptance of Deliverables. A Deliverable will be deemed to be fully and finally accepted by Customer upon (a) Customer’s written acceptance of the Deliverable, (b) upon the expiration of 2 weeks after the date that Customer provides Cortex with written notice of Customer’s completion of acceptance testing on such Deliverable (unless Customer provides a notice of non-conformity to Cortex prior to the expiration of such 2-week period), (c) 2 weeks after the delivery of the Deliverable without any non-conformity notice from Customer, (d) Customer makes use of the Deliverables (except for testing and training of its own staff), (e) the Customer or any third party makes any modification to the Deliverable, whichever occurs earlier.

3.5 Warranty. The warranty period shall begin, for the time and under the terms contained in this clause, following the occurrence of the first of the following milestones:

1. “Implementation” or actual use of the Deliverables; or
2. final acceptance of the Deliverables. Cortex warrants the substantial operation of the Deliverables pursuant to a SOW, in accordance with the Specifications outlining the functional and technical designs accepted by the Customer, for the period expressly agreed for each project, which shall be set out in the relevant SOW. If no period has been established, the warranty shall be valid for three (3) months.

During the warranty period, Cortex shall rectify at no extra charge any abnormality reported to it in writing by the Customer. “Abnormality” shall be deemed to mean the malfunctioning of the Deliverables resulting from the work carried out by Cortex and accepted by the Customer which makes them unfit for use. This warranty shall only apply to errors at least partially attributable to Cortex, and shall therefore not be valid in the following cases:

1) If the Deliverables have been modified by the Customer or any third party without Cortex’s written authorisation.

2) If the Deliverables have been damaged by changes to the hardware or software environment carried out without Cortex’s advice. If the Deliverables have to be modified as a result of the advice obtained from Cortex following such damage, the modification shall either be subject to the Change Order regime to establish the cost and deadline of such work or shall lead to the conclusion of a new contract for the carrying out of such work.

3) If the Deliverables have not been used or maintained by the Customer in accordance with Cortex’s instructions, and specifically if either the hardware and operating system requirements or the instructions in the relevant user manual have not been complied with.

4) If the problem is due to a defect in the operating system or other software of the system not developed by Cortex under this contract, which operates with the application. If the conditions stipulated for the validity of the warranty are not met, the time invested by Cortex personnel to resolve problems shall be invoiced in accordance with Cortex’s current rates.

4 Fees and Expenses

4.1 General Billing Rates. All fees and other compensation and timing of payment will be set forth in the SOW. Personnel are assigned to a Project at its then current rate: should such an individual be promoted during the term of a Project, written consent must be obtained by the Customer in order for the new rate to apply. If the Customer does not agree to the new rate within five (5) working days, Cortex will provide a competent replacement at the working at the agreed rate. Salaries and hence fee rates will be reviewed twice a year at approximately equal intervals. The Customer will receive one (1) month notice of such changes. No such change shall apply to any SOW entered into prior to the effective date of the change. In the absence of such a change, the then-stated rates in this Agreement shall continue. Cortex agrees that fee rates for a specific individual may not be increased more than once a year. In the event of such an increase Cortex agrees to provide the reasoning for the individual’s promotion.

4.2 Expenses. In addition to the charges for Services, Customer will reimburse Cortex for reasonable out-of-pocket expenses, as previously approved by Customer, required and actually incurred in the performance of the Services under a SOW, including reasonable travel, communications, lodging, and required third party software or hardware, provided always that:

1. Cortex shall not incur aggregate expenses with a value in excess 150NZD in respect of any calendar month without the Customer’s prior written approval
2. Cortex shall not incur any single item of expense with a value in excess of 50NZDwithout the Customer’s prior written approval; and
3. Customer shall not be obliged to pay for expenses incurred otherwise than in accordance with clauses 4.2(a) and 4.2(b) above.

4.3 Taxes. The fees chargeable by Cortex are stated exclusive of all taxes. Customer shall be liable and will pay for all GST taxes levied against or upon the Services provided at the rate applicable at the time of provision

4.4 Rush Fees. Cortex rush fees vary on the type of project and how much extra effort Cortex staff members need to put in to meet the deadline. These can range from 25% - 100% of the original quote. For Cortex, a rush fee can be included on any project where:

1. Requested deadlines are shorter than our standard delivery time-frames. (25% additional fee)
2. Cortex must reschedule work booked for other clients. (50% additional fee)
3. Cortex staff members are required to work over a weekend. (100% additional fee)

5 Payment of Invoices

5.1 Invoice Procedure. Unless other payment terms are specified in the applicable SOW, Cortex shall invoice Customer as follows:

1. upon Customer's written acceptance of any Deliverables/milestones or work performed on a fixed-price basis;
2. monthly in arrears, for services provided on a Time and Materials basis and for out-of-pocket expenses; or
3. as indicated in an agreed payment plan. Cortex shall send a detailed invoice for the period covered by the invoice. At Customer’s request, Cortex will supply Customer with Cortex timesheets indicating hours worked by each Cortex resource which are signed off weekly by the Customer. As far as signed off by the Customer, Cortex records of time and materials shall, in the absence of any genuine dispute as to the work done, time spent and/or sums payable, be conclusive and binding proof of the Services provided. All fees under this Agreement shall be quoted, invoiced, and paid in New Zealand Dollars (NZD).

5.2 Payment Terms. Unless other payment terms are specified in the applicable SOW, Customer will pay net amount of invoices without discount within thirty (30) days from date of issue. In the event that payments remain unpaid beyond this period and without prejudice to other rights and remedies, except in respect of sums that are the subject of a bona fide dispute, Cortex reserves the right to withhold the Services hereunder and/or charge interest at the rate of 0.5% per month following the due date commencing upon the date a payment becomes overdue.

5.3 Customer may withhold payment on any part of an invoice that is disputed while it is solved according to the Dispute Resolution Procedure set out in clause 17.

Sections 6 to 9

Intellectual property, warranties, indemnity, and confidentiality

6 Intellectual Property

6.1 Pre-existing Property. Each party owns, and will continue to own, all right, title, and interests in and to any and all inventions however embodied, know how, works in any media, software, information, trade secrets, materials, property or proprietary interest that it owned prior to the Effective Date, or that it created or acquired completely independent of its obligations pursuant to this Agreement (collectively, “Pre-existing Property”). All rights in pre-existing works not expressly transferred or licensed herein are reserved to the owner.

6.2 Developed Property. The parties agree that, subject to the payment by Customer of all amounts owed to Cortex under this Agreement, and except as otherwise set forth in Section 6.3 below, all intellectual property and materials developed in connection with the provision of the Services (collectively, the “Developed Property” which, for the avoidance of doubt, shall exclude the Pre-existing Property) shall from its creation be the sole and exclusive property of Customer. Accordingly, Cortex hereby grants to with full title guarantee (and agrees to procure an equivalent grant by all applicable third parties of) all rights in and to the Developed Property, on a worldwide and all media basis, together with all applicable consents and waivers of moral (and other non-transferable) rights so as to enable the fullest, unrestricted use by the Customer of the same.

6.3 Retained Rights of Cortex. Notwithstanding the provisions of Section 6.2 above, Cortex shall retain the right to use its general knowledge and experience, as well as any generic development methods, processes, tools, and techniques developed by Cortex in the course of performing work for Customer under this Agreement, in connection with other client engagements entered into by Cortex and as part of performing services for such other clients, but only to the extent that such items do not constitute, contain, or embody any Customer “Confidential Information”.

7 Warranties

7.1 Mutual Warranties. Cortex and Customer each hereby represents, warrants, and covenants to the other that:

1. it has the authority and right to enter into this Agreement and perform its obligations under this Agreement
2. no consent, approval, or withholding of objection is required from any third party or governmental authority with respect to the entering into or the performance of this Agreement; and
3. it is under no obligation or restriction, nor will it assume any such obligation or restriction, that will prevent it from performing any of its obligations under this Agreement.

7.2 Cortex Warranties. Cortex hereby represents, warrants and covenants the following to the Customer:

1. that it will perform the Services with the skill and care required by applicable industry standards and will exercise that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same type of undertaking under the same or similar circumstances;
2. that it will perform its obligations in a manner that complies with applicable laws, regulations, ordinances and codes, including identifying and procuring required permits, certificates, approvals, and inspections; and
3. to give prompt attention to any matter raised by Customer relating to Cortex’s obligations and the performance of Services.

7.3 Customer Warranties. Customer hereby represents, warrants, and covenants the following to Cortex:

1. Customer will perform its obligations in a manner that complies with applicable laws, regulations, ordinances and codes, including identifying and procuring required permits, certificates, approvals, and inspections.
2. The Third Party Components provided to Cortex will not infringe upon or violate the rights of any third party.
3. Customer shall provide Cortex (and its agents and sub-contractors) to the best of its knowledge with such information, co-operation, assistance, facilities and resources as it – as far as such is known by the Customer – reasonably requires to enable it to perform the Services.
4. To give prompt attention to any matter raised by Cortex relating to Customer’s obligations and the performance of Services.
5. To comply with any laws and regulations applying to the Customer’s business.

7.4 It is understood and agreed that Cortex’s ability to perform its obligations may be dependent on the Customer fulfilling certain of its responsibilities where Cortex’s dependency on such obligations is expressly stated in this Agreement or in the applicable SOW. To the extent Customer does not fulfil such responsibilities due to reasons it is solely accountable for under the Agreement and provided that Cortex shall take all reasonable steps to mitigate the impact of Customers’ failure to fulfil its responsibilities, then (without prejudice to Cortex’s rights and remedies):

1. Cortex reserves the right to charge for resources assigned to performing the Services even if not utilised;
2. Cortex reserves the right to change the scope of the Services or any agreed timeline for their performance (but Cortex shall consult with Customer and act reasonably in doing so);
3. Cortex’s fees and estimates may be affected;
4. Cortex will be relieved of its obligations to Customer to the extent that Cortex is prevented from performing the Services in accordance with the Agreement.

8 Indemnification

8.1 By Cortex. Subject to Clause 10, Cortex shall, at its expense, defend, indemnify, and hold harmless Customer and its officers and directors, employees, agents, affiliates, successors and assigns from and against any losses arising from any third-party claim brought due to Cortex’s gross negligence or wilful misconduct against any such indemnified party to the extent alleging that any Developed Property infringes any proprietary right of any third party, including without limitation any copyright, patent, trade name, trademark, or trade secret. Cortex shall also, notwithstanding the above, have no liability under this Section 8.1 to the extent that any infringement or claim thereof is based upon:

1. compliance with Customer Inputs provided by Customer,
2. use of Developed Property in an application or environment for which it was not designed or not contemplated under this Agreement, or
3. modifications of such Developed Property by anyone other than Cortex where the unmodified version of such Developed Property would not be infringing. In the event that any Developed Property becomes the subject of a claim of infringement of any proprietary right of any third party, including without limitation any copyright, patent, trade name, trademark, or trade secret, Cortex shall, at its choice and expense: (i) procure for Customer a non-exclusive, perpetual, irrevocable, worldwide, fully paid-up, royalty-free licence, with the right to sub-license and distribution directly or through its distribution channels, to use, copy, install, perform, display, modify, and create derivative works of such Developed Property for Customer’s business purposes and for the business purposes of its affiliates, distributors, customers, successors, and assigns; or (ii) replace or modify such Developed Property to make it non-infringing, provided that the replacement or modified Developed Property has the same or additional functionality and comparable or better performance characteristics than the allegedly infringing Developed Property.

8.2 By Customer. Subject to the procedures set forth and to Clause 10, Customer shall, at its expense, defend, indemnify, and hold harmless Cortex and its officers and directors, employees, agents, affiliates, successors and assigns from and against any losses arising from any third party claim brought against any such indemnified party to the extent alleging that any Customer Input infringes any proprietary right of any third party, including without limitation any copyright, patent, trade name, trademark, or trade secret. Notwithstanding the above, Customer shall have no liability under this Section to the extent that any infringement or claim thereof is based upon:

1. use of a Customer Input in an application or environment for which it was not designed or not contemplated under this Agreement, or
2. modifications of a Customer Input by anyone other than Customer where the unmodified version of such Customer Input would not be infringing. In the event that any Customer Input becomes the subject of a claim of infringement of any proprietary right of any third party, including without limitation any copyright, patent, trade name, trademark, or trade secret, Customer shall, at its choice and expense, to the extent necessary for the provision of the Services: (i) procure for Cortex a non-exclusive, perpetual, irrevocable, worldwide, fully paid-up, royalty-free licence, with the right to sub-license and distribution directly or through its distribution channels, to use, copy, install, perform, display, modify, and create derivative works of such Customer Input; or (ii) replace or modify such Customer Input to make it non-infringing, provided that the replacement or modified Customer Input has the same or additional functionality and comparable or better performance characteristics than the allegedly infringing Customer Input.

9 Confidentiality

9.1 Unless both parties agree specific Confidentiality terms, the following shall apply.

9.2 The parties agree to treat in confidence the other's data documentation and information which is marked confidential or which is by its nature clearly confidential ("Confidential Information"). The parties further agree not to disclose any Confidential Information to any other person other than its own employees, contractors and professional advisers under conditions of confidentiality and then only to the extent required for proper implementation and use and the proper performance of this Contract. Nothing shall prevent Cortex from using the knowledge and know-how gained in providing the Services in any combination or permutation for any other purpose.

9.3 Nothing contained herein shall be construed to impose a confidentiality obligation on a party in respect of:

1. any matter appearing in public literature or otherwise within the public domain unless the information is in the public domain as a result of a breach of this Contract by that party; or
2. any information or knowledge possessed by that party prior to disclosure to it by the other or rightfully acquired from sources other than the other party; or
3. any information or knowledge acquired in a bona fide arm's length transaction by the party making the disclosure.

9.4 Upon termination of this Contract, each party shall cause all Confidential Information belonging to the other party in whatever medium it is recorded or held to be returned, deleted or destroyed according to the written instructions of the other party.

9.5 The provisions of this Clause 9 shall continue after the termination of this Contract for five (5) years.

9.6 Subject to the Customer’s prior approval, Cortex reserves the right to sub-contract all or any part of its rights and obligations under this Contract and any such sub-contractor may be passed such confidential information as may be necessary for such purpose, provided that Cortex shall: (i) ensure that such sub-contractors are bound by equivalent confidentiality restrictions; (ii) enforce such restrictions; and (iii) remain liable for the actions and omissions of each such sub-contractor as if they were its own actions and omissions. Each party also reserves the right to pass any such Confidential Information to its Group Companies as may be necessary for fulfilment of this Agreement.

9.7 Each Party acknowledges and agrees that, in the event of a default by the other as receiving party, damages will not be a sufficient remedy for the disclosing party. Accordingly, in addition to any other rights and remedies which may be available to it, the disclosing party shall have the right to injunctive relief or specific performance of the receiving party’s obligations pursuant to this Agreement. Neither failure nor delay by the non-defaulting party in exercising any of its rights, powers or privileges herein shall operate as a waiver nor shall any single or partial exercise preclude any other or further exercise of any right, power or privilege.

Sections 10 to 18

Liability, termination, disputes, audit, and miscellaneous

10 Limitation of Liability

10.1 This Clause 10 prevails over all other clauses in this Contract.

10.2 The total aggregate liability of either party for a claim made by the other party in respect of loss or damage, including any indirect or consequential damages (such any loss of profit, production, anticipated savings, goodwill or business opportunities or any type of indirect, economic or consequential loss even if that loss or damage was reasonably foreseeable or that party was aware of the possibility of that loss or damage arising) suffered by that party flowing from any one event or series of connected events shall not exceed a sum equivalent to 100% of the total payments made or payable by the Customer under the relevant SOW during the twelve (12) month period prior to written notification of the claim, however that liability arises including (without limitation) breach of contract, tort, misrepresentation (except for fraudulent misrepresentation) or breach of statutory duty.

10.3 This Clause 10 shall not operate to limit Customer’s ability to pay any sums due under the Agreement.

11 Term and Termination

11.1 Term. The term of this Agreement will commence on the date of this Agreement and will continue thereafter for an initial term of one (1) year (the “Initial Term”). After the Initial Term, this Agreement shall be renewed automatically and continue in force and effect until terminated under the terms of this Clause or Clause 14. All terms and conditions hereof shall remain in effect during any renewal term, except as the parties otherwise expressly agree to in writing. For the avoidance of doubt the Customer shall have no obligation to enter into any SOW subject to these terms and conditions.

11.2 Without prejudicing any rights hereunder either party shall be entitled to terminate forthwith the Services by notice in writing:

1. if the other party has committed a material breach or repeated/persistent breaches of this Agreement and continues such default for thirty (30) days after written notice has been given to such party with a request that such material breach or persistent breaches are rectified and no such rectification takes place; or
2. upon the other party passing a resolution for liquidation or winding up or suffering a winding-up order being made against it or going into administration; or
3. if a receiver or administrative receiver is appointed or an encumbrancer takes possession of the undertaking or assets (or any part thereof) of the other party; or
4. if the other party is unable to pay its debt or ceases to or threatens to cease to carry out its business or enters into a composition with its creditors or bankruptcy creditor settlement proceedings; or
5. within six (6) months of distress or execution being levied against any property of the other party.

11.3 Duties upon Termination; Survival. In the event of termination hereunder: (i) the accrued rights of the parties up to the date of termination shall not be affected (ii) Cortex shall promptly return all copies of Customer property in its possession or control to Customer, including without limitation all Developed Property and Customer Confidential Information. Termination of this Agreement shall not be construed to waive or release any claim that a party is entitled to assert at the time of such termination, and the applicable provisions of this Agreement shall continue to apply to such claim until it is resolved.

11.4 Customer may terminate this Agreement and any fixed term Time and Material SOW governed by this Agreement in whole or in part at its sole discretion for any reason or for no reason at any time by giving no less than thirty (30) days prior written notice. In the event that – due to such termination – Cortex should experience damages because of financially relevant dispositions required to fulfil the obligations of the SOW then such proven, irrevocable and damaging dispositions shall be taken into account when determining the outstanding costs of immediate termination.

12 References

Upon the Customer’s prior written approval on a case by case basis Cortex shall be entitled to make reference to the Customer; wording and other elements of such reference also being subject to the Customer’s explicit written approval.

13 Relationship of Parties

Customer and Cortex are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Customer and Cortex. Neither Customer nor Cortex will have the power to bind the other or incur obligations on the other party’s behalf. During the performance of services under this Agreement, Cortex's employees will not be considered employees of Customer for any purpose whatsoever. Accordingly, Cortex shall be solely responsible for the compensation of such employees, including employment-related taxes.

14 Force Majeure

Neither party shall be in default in connection with its failure to perform any obligation hereunder to the extent caused by events or conditions beyond that party’s reasonable control, such as an act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection, communications blockage, inability to obtain labour, materials, equipment, transportation or energy sufficient to meet needs (a “Force Majeure Event”), in each case so long as such failure to perform could not have been prevented by reasonable precautions. Each party reserves the right to terminate this Agreement or any SOW hereunder in the event a Force Majeure Event prevents the other party from providing the Services or performing any other obligations under this Agreement for a period of thirty (30) days or immediately in the event that it seems reasonably obvious that the performance will be delayed in excess of 30 days.

15 Non-Solicitation

Without in any way restricting the right of an employee freely to accept employment and change employment, neither Party shall (during the term of the Agreement and for twelve (12) months thereafter), without the other Party’s written consent, solicit or hire any of the personnel of the other Party who have at any time been directly or indirectly engaged in the performance of the Agreement or any SOW. The foregoing undertaking shall not apply in respect of any person who (without having been previously approached directly or indirectly) responds to a general recruitment advertisement placed by (or on behalf of) the new employer. If either Party breaches this clause, then it shall pay to the other an amount equivalent to the employee’s annual salary (net of benefits) paid by the other Party in recognition of the disruption that such breach would cause to the efficient conduct of the other Party’s business.

16 Dispute Resolution Procedure

16.1 Both Parties to this Agreement shall seek to resolve any dispute between them arising out of or relating to this Agreement promptly, amicably and in good faith.

16.2 Any continuing dispute between the Parties regarding the performance of their obligations under this Agreement may be resolved by reference to the following internal dispute resolution procedure: Stage One: the dispute shall be referred to the Customer Project Manager/Coordinator and the Cortex Project Manager. If the dispute has not been resolved at this Stage One within five (5) Business Days, such dispute shall be escalated to Stage Two; Stage Two: the dispute shall be referred to each Party’s stage two representatives as set out in the relevant SOW. If the dispute has not been resolved at this Stage Two within ten (10) Business Days such dispute shall be escalated to Stage Three; Stage Three: the dispute shall be referred to each of the Party’s Stage Three representatives as set out in the relevant SOW.

Proposals and information exchanged during informal dispute resolution proceedings will be privileged, confidential and without prejudice to a Party’s legal position in any formal proceedings.

16.3 If the Parties are unable to reach an agreement within (1) month of the dispute sent by either Party to the other, the dispute shall be finally settled in accordance with the Arbitration Act 1996 by one or more arbitrators as agreed between the Parties at the moment of submitting the arbitration request, appointed in accordance with such rules. In the case the Parties cannot agree on the appointment of such arbitrator, the matter shall be referred to the Distributes Tribunal who shall appoint the arbitrator. The arbitration shall be governed by the laws of New Zealand.

17 Audit

Cortex shall, and shall procure that its agents and sub-contractors, maintain proper records and retain all original paperwork, including receipts, arising out of or in connection with its performance of the Services (including all work in respect of which payment is due to it under the Agreement). Customer shall have a right, once per year and at Customer’s cost, of access to the Cortex’s premises on the giving of reasonable notice during Normal Business Hours causing minimal disruption to Cortex’s business and performance of Services and shall be entitled to audit and take copies of extracts from any written documents, records and financial books, except any internal audit report from Cortex, relating to this Agreement. No competitor of Supplier may be appointed as auditor, and the auditors shall need to agree with Cortex’s confidentiality terms and will have to respect the internal and security rules applicable to its premises.

18 Miscellaneous

Assignment

Neither party may assign this Agreement or any of its rights and obligations hereunder without the prior written consent of the other provided that neither party shall require consent for assignment to a Group Company or to an acquirer of substantially all of the business and/or assets of the relevant party.

Notices

Any notice given under this Agreement must be given in writing and sent or delivered by hand, post, or facsimile to the other party at the address stated in the Agreement (or any other address notified for this purpose by that party) provided that any:

1. notice delivered by hand shall be deemed to have been given when deposited at the appropriate address;
2. notice sent by post shall be deemed to have been given forty eight (48) hours after a first class registered letter is posted to the appropriate address; and
3. notice sent by facsimile shall be deemed to have been given on transmission to the correct number, provided that such notice is confirmed within forty eight (48) hours as in a) or b) above.

Severability

If any provision of this Agreement or any part of any provision shall be determined to be partially void or unenforceable by any court or body of competent jurisdiction or by virtue of any legislation to which it is subject or by virtue of any other reason whatsoever, it shall be void or unenforceable to that extent only and no further and the validity and enforceability of any of the other provisions or the remainder of any such provision shall not be affected by such determination.

Entire Agreement

This Agreement constitutes the entire agreement between the Customer and Cortex for the Services. All warranties, terms and conditions, whether express or implied, statutory or otherwise, and all representations (except for fraudulent misrepresentations), statements, negotiations, understandings and undertakings, written or oral, are expressly excluded and superseded except as stated in this Agreement.

Variation

No variation or amendment of any of the provisions of this Agreement shall be effective unless it is in writing, refers specifically to this Agreement and is duly executed by or on behalf of each of the parties. Customer Satisfaction Survey (OTACE) Cortex’s quality objectives are to deliver On Time and Above Customer Expectation (OTACE methodology). Cortex measures the set quality objectives for each assignment to a specific voluntary customer survey. Customer Survey (CSI) is Cortex’s structured approach to capture the customer’s expectations and the assessment of the outcome of a commitment. The purpose of the CSI is to increase customer satisfaction and to use the outcomes to continuously improve the processes.At the mission start up, the customer may be asked to set up criteria for the assignment, and at the termination of the service the customer can make an assessment of how well Cortex has met the customer expectation. To ensure that the mission is progressing as expected, customer satisfaction may also be measured during the assignment.

Governing Law and Jurisdiction

This Agreement and the rights of the Parties to this Agreement shall be governed by and construed in accordance with the laws of New Zealand, without regard to:

1. conflicts of laws principles that would require the application of any other law; or
2. the United Nations Convention on Contracts for the International Sale of Goods.

The Parties consent to jurisdiction in and by the courts of New Zealand in any action, proceeding or other dispute arising out of or in connection with the terms of this Agreement or the subject matter of this Agreement or the performance of the Parties under this Agreement.

Counterparts

This Agreement and any Work Package may be executed in any number of counterparts and by the parties to it on separate counterparts, each of which shall be an original but all of which together shall constitute one and the same instrument.