General Terms & Conditions

RUBY PLAY NET SKILL BASED SOCIAL GAMING PLATFORM LICENSE

GENERAL TERMS AND CONDITIONS

  1. Term:  This License Agreement shall commence on the Commencement Date and shall continue for 3 years, unless terminated earlier in accordance with its terms (Term).
  1. Provision of Services
    1. Services:  Ruby Play Net agrees to perform the Services described.
    2. Performance of services:  Ruby Play Net shall, in the provision of the Services:
      1. diligently and conscientiously undertake the Services;
      2. provide all personnel, processes and resources reasonably required to provide the Services;
      3. promptly notify the Customer of any breach of Ruby Play Net’s obligations under this Agreement or any matter which may impact on Ruby Play Net’s ability to perform its obligations under this Agreement; 

and

  1. without limiting clauses 2.2.1 to 2.2.3, exercise the degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled, reasonable and experienced supplier performing similar services to the Services.
  1. Customer Obligations: The Customer shall:
    1. undertake all obligations as are allocated to the Customer in this Agreement; and
    2. provide Ruby Play Net with information, assistance and access to its personnel and premises, as Ruby Play Net, in its sole discretion, requires in order to provide the Services and Deliverables.
  1. Charges
    1. Expenses / Disbursements: In addition to the Charges, Ruby Play Net’s bills will include expenses and disbursements incurred on Customer’s behalf.  These costs may include (but are not limited to) photocopying, courier, telephone and facsimile, search fees, court filing fees, registration fees and travel. The Customer must approve all travel and any expenses that will exceed 10% of the amount of total Charges for the relevant calendar month.
    2. Review: The charges payable by the Customer pursuant to this agreement shall be reviewed on the 12 month anniversary of the commencement of this agreement and on each successive 12 month anniversary thereafter (each a “Review Date”).
    3. Subject to clause 4.4 below the maximum increase in Charges on each review date will be based on the increase in the CPI rate as reported by Statistics New Zealand between the respective review dates (and the Commencement Date and the first review date).
    4. Where the Charges are not a fixed amount, the Charges may be reviewed from time to time by Ruby Play Net while this Agreement is in force, provided that not less than two months’ notice of any increase in price will be given by Ruby Play Net to the Customer.
  1. Invoicing and Payment
    1. Invoice:  Ruby Play Net shall submit a valid tax invoice to the Customer for the Charges in the manner and at the time specified in the agreement.  Each invoice shall state reasonable details of the Services and Deliverables to which the invoice relates.
    2. Payment:  The Customer shall, not later than 7 days following the date of an invoice, pay to Ruby Play Net the amount in the invoice in full and without setoff or deduction. 
    3. Disputed invoices:  If the Customer disputes (in good faith) the accuracy of any invoice, the Customer shall within 20 days after receipt of the invoice, give notice of that fact to Ruby Play Net.  That notice shall state the basis of the dispute and give relevant supporting details.  If the parties do not resolve the dispute within 10 Business Days of the date of the notice, the dispute shall be determined in accordance with clause 19.
    4. Default interest: Interest at 2 per cent per annum above Ruby Play Net’s current bank overdraft rate calculated on a daily basis shall be payable on any moneys outstanding by the Customer to Ruby Play Net from the date payment is due until the date payment is received by Ruby Play Net but without prejudice to Ruby Play Net’s other rights and remedies in respect of non-payment or late payment.  The interest shall be payable on demand by Ruby Play Net. 
    5. Payments to be free and clear:  All amounts, including any fees, charges, interest or other amounts payable under this Agreement, shall be paid free and clear of, and (except to the extent required by law or permitted by clause 5.7) without any deduction or withholding on account of, any taxes.
    6. Taxes: All amounts specified in this Agreement are exclusive of tax (if any) unless otherwise stated. The Charges do not include tax.  In addition to the Charges, the Customer will pay to Ruby Play Net any taxable supply under this License Agreement if applicable.
    7. Taxes: The Customer shall deduct from all payments made under this Agreement any amount of tax which is required to be withheld under any applicable law, and will remit the tax withheld to the relevant government agency within the time prescribed by the applicable law. Notwithstanding anything in this clause 5.7, if the Customer is required to deduct, from any prices or rates payable to Ruby Play Net under the terms of this Agreement, an amount of withholding tax payable to any government agency, the Customer agrees to pay to Ruby Play Net such additional amounts as are necessary to ensure receipt by Ruby Play Net of the full amount which would be payable under this Agreement but for the deduction.
    8. Documentation:  If the Customer is required to withhold  taxes under clause 5.7, the Customer must provide to Ruby Play Net documentary evidence, in a form agreed between the parties, showing the withheld taxes have been paid to the relevant government agency. 
  1. Subcontractors
    1. Subcontracting:  Ruby Play Net may subcontract the performance of any part of the Services under this Agreement.
    2. Responsibility for subcontractors:  Notwithstanding any subcontracting, Ruby Play Net shall remain liable to the Customer for the performance of all Services and compliance with all other obligations of Ruby Play Net under this Agreement.
  1. Relationship Management
    1. Representative:  Each party shall appoint a relationship manager (of appropriate seniority and experience) to be that party’s representative for the purposes of this Agreement.  Each party may, by notice to the other, remove and replace its representative by notice to the other party.
  1. Reporting and Records
    1. Reports:  Ruby Play Net shall provide such reports to the Customer as specified in the license agreement.
    2. Records:  Ruby Play Net shall maintain records of all Services and Deliverables provided to the Customer throughout the Term.
  1. Exclusion of warranties:  Any warranties, representations and/or promises relating to Services and Deliverables (whether express or implied, or that arise because of applicable legislation or otherwise) including those relating to merchantability or fitness for purpose, are excluded to the full extent allowed by law. 
  1. Intellectual Property
    1. Existing IP: All Existing Intellectual Property of a party at the Commencement Date is and shall remain owned by that party.
    2. IP Ownership: Each party’s pre-existing intellectual property, including without limitation:
    3. in relation to Customer, Customer’s pre-existing logos, trademarks, designs and content, that are provided to Ruby Play Net and incorporated or embodied within the Deliverables, to the extent the foregoing do not include the content described in clause 10.2.2 below (“Customer IP”); and
    4. in relation to Ruby Play Net, all of Ruby Play Net’s logos, trademarks, designs, content, software code (source and executable), utilities, editing/compiling tools, data formats or compression methods, algorithms and interface routine and general computer software design practices and proprietary development tools, including all derivatives, modifications, enhancements, improvements and upgrades thereof (“Ruby Play Net IP”);

shall be and remain the sole and exclusive property of the relevant party.

  1. Licence of Ruby Play Net IP: Ruby Play Net hereby grants to Customer a perpetual, worldwide, non-exclusive, paid-up and royalty-free license to use and exploit any Ruby Play Net IP embodied in the Deliverables, solely in connection with Customer’s reasonable use of such Deliverables. For purposes of clarity, no right or license is granted to use the Ruby Play Net IP separate from the Deliverables. 
  2. No Impairment: The parties agree that Ruby Play Net has successfully developed many products and software applications for its other customers, and the Customer has engaged Ruby Play Net, in part, based upon such work. Since Ruby Play Net may have developed, have under development or in the future may develop products or and software applications that are or will be similar the Deliverables, the Customer acknowledges and agrees that, subject to its ownership of the Customer IP and the confidentiality provisions of this Agreement, nothing herein shall impair the right of Ruby Play Net to acquire, market or develop any products or services, either for itself or on behalf of others, that are similar to the products or services of Customer or the Deliverables, even if competitive to those of the Customer.
  3. Licence of Customer IP: Ruby Play Net shall have a non-exclusive licence to access, possess, store, use, reproduce and/or adapt the Customer IP to the extent required to perform the Services and otherwise give effect to this Agreement.
  4. Third Party Software:  All Intellectual Property in any Third Party Software that is supplied to the Customer (or incorporated in any of the Developed Software) remains the sole and exclusive property of the Third Party Software supplier.
  5. Deliverables:  Unless otherwise agreed upon Acceptance (or where Acceptance is not applicable, upon delivery) by the Customer of each Deliverable and upon the Customer having first complied with clause 4, sole and exclusive right to use such Deliverable and / or Developed Software shall vest in the Customer (subject only to Ruby Play Net’s rights in any of its Existing Intellectual Property and Ruby Play Net IP forming part of the Deliverables and any limitations or restrictions imposed by any Third Party Software supplier to the extent that the Deliverable incorporates any Third Party Software).
  6. Repossession of Products: If the Customer is in default of any terms of this Agreement, then Ruby Play Net will be entitled without notice to repossess any Customer Products still owned by Ruby Play Net. The Customer grants a license and authorises Ruby Play Net or its representatives, servants, agents or employees to enter the premises where the Customer Products are situated for the purpose of repossession. Ruby Play Net will not be liable for any costs, expenses, damage, loss of any kind suffered by the Customer as a result of repossession.
  7. Know-how:  Nothing in this clause 10 affects the right that Ruby Play Net has to continue to use any know-how gained by it in connection with this Agreement or to develop solutions that are similar to and which use or are based upon any Deliverable, its development methods, techniques, technical components or software routines built and used before entry into this Agreement or during its Term.
  1. Security
    1. The Customer hereby grants a security interest to Ruby Play Net in respect of any Documents, products, Developed Software or Deliverables provided to the Customer under this Agreement (secured goods).
    2. The Customer waives its right under the Personal Property Securities Act 1999 (PPSA) to receive a copy of any verification statement or financing change statement (as those terms are defined in the PPSA).
    3. If the Customer is in default under these terms and conditions or if one of the events described in clause 18.1 occurs, then Ruby Play Net will be entitled without notice to repossess the secured goods.  The Customer authorises Ruby Play Net or its representatives, servants, agents or employees to enter the property where the secured goods are situated for the purpose of repossession.  Ruby Play Net will not be liable for any costs, expenses, damage, loss of any kind suffered by the Customer as a result of repossession.
    4. If Ruby Play Net takes possession of the secured goods or the proceeds and after deduction of all money the Customer owes to Ruby Play Net (including any interest due and including any expense incurred by the supplier in enforcing its rights including legal expenses as between solicitor and client) there is a surplus, Ruby Play Net will pay that surplus to the Customer.
  1. Liability and Indemnity
    1. Indemnity: Customer shall indemnify and hold harmless Ruby Play Net and its Related Companies, and their directors, officers and employees from and against any and all losses, claims, liabilities, damages, costs and expenses, joint or several as incurred, which any Indemnified Party may suffer or incur in connection with:
      1. any breach of any warranty or obligation under this Agreement by the Party; or
      2. any wilful, unlawful or negligent act or omission of the Party or any of its employees, other contractors, representatives or agents.
    2. Exclusion of liability:  Ruby Play Net shall not be liable (and shall not be in breach of this Agreement) in respect of any failure to comply with any of its obligations pursuant to the Agreement which is caused by an act or omission of the Customer (or any of the Customer’s employees, end users, other contractors, representatives or agents) or any third party.
  1. Limitation of liability:  Except for each Party’s obligation to indemnify the other:
    1. the total aggregate liability of a Party in respect of all claims under or in connection with a licence shall not exceed the Charges paid by the Customer under that licence; and
    2. neither party shall be liable for special, indirect or consequential loss or damage or for any loss of business or profit of the other party, whether or not the possibility of such loss or damage could have been reasonably foreseen.
  1. Additional Services
    1. Request for Services:  The Customer may, from time to time, request Ruby Play Net to submit to the Customer a written proposal to perform an Additional Service.  On receipt of any such request Ruby Play Net shall (at the Customer’s cost) respond to the Customer with a proposal for that Additional Service within the reasonable period agreed by the parties. 
    2. Response:  Within a reasonable period after receiving Ruby Play Net’s proposal, the Customer may query any matter in the proposal and shall, in writing:
      1. accept the proposal in full;
      2. negotiate (in good faith) variations to the terms of the proposal and, subsequently accept or decline the amended proposal; or
      3. decline the proposal.
      4. If the Customer fails to provide such notice in writing, it shall be deemed to have declined the proposal.
  1. Change Control
    1. Either party may make a Change Request during the term of this Agreement.  All Change Requests must be made by submitting a written request to the other party, which provides on its face that it is a Change Request.
    2. The Customer may make a Change Request in respect of any component of any Statement of Work and the parties shall negotiate, in good faith, amendments (if any) to the relevant deliverable(s) the subject of the Change Request.
      1. In response to a Customer initiated Change Request submitted to Ruby Play Net:
        1. Ruby Play Net will consider the Change Request and, within 10 Business Days of receiving it, Ruby Play Net will advise the Customer in writing of either:
          1. its approval of the Change Request (such approval not to be unreasonably withheld), together with a Proposal (as described in clause 14.1) to implement the Change Request; or 
          2. its rejection of the Change Request and detailed reasons for the rejection.   
      2. The Customer will consider a Proposal received pursuant to clauses 14.3.1 and 14.4.2 and within 10 Business Days advise Ruby Play Net in writing of:
        1. its approval of the Proposal (such approval not to be unreasonably withheld);
        2. its rejection of the Proposal and detailed reasons for the rejection,
        3. failing which the Customer shall be deemed to have rejected the Proposal.
      3. In response to a Ruby Play Net initiated Change Request:
        1. the Customer will consider the Change Request and, within 10 Business Days of receiving it, advise Ruby Play Net in writing of either:
          1. its approval of the Change Request (such approval not to be unreasonably withheld); or 
          2. its rejection of the Change Request;
      4. subject to approval in accordance with clause 14.3, Ruby Play Net shall submit a Proposal to the Customer to implement the Change Request.
      5. The “Proposal” will include:
        1. a detailed description of any additional costs  to be paid by the Customer in respect of the Change Request;
        2. a description of any impact that performance of the Change Request would have on Ruby Play Net’s ability to fulfil its other obligations under this Agreement.  In particular, if performance of the Change Request would affect the terms of any warranty or negatively impact on the costs to the Customer, Ruby Play Net will fully explain reasons for this in the proposal and will ensure that the impact of any such proposal is reasonable and justifiable;  and
        3. an explanation of any changes to the terms and conditions of this Agreement that may be necessary for the performance of the Change Request and its related Proposal.
      6. Either party shall be entitled to seek a Change Request where additional work is required as a consequence of the failure of the other party to perform its obligations under the license agreement.
      7. If one party becomes aware of any failure on the part of the other party to perform its obligations as required by the license then that party shall promptly notify the other party so that appropriate remedial action can be taken.  Provided appropriate remedial action is promptly taken by the other party, no Change Request shall be made by the first party with respect to such failure.
  1. Confidentiality
    1. Confidentiality:  Neither party shall (and shall procure that its employees and other contractors do not), at any time, directly or indirectly:  
      1. disclose or permit the disclosure of, Confidential Information of the other party to any person; or
      2. use any Confidential Information of the other party other than for the purpose for which it was provided,

Except

  1. to the extent required by law and with immediate notice to the other Party if permitted by law;
  2. to the extent disclosure is necessary to fulfil its obligations under this Agreement;
  3. information which is publicly available without any cause attributable to the disclosing party; or
  4. to the extent the other party has given its prior written consent to such disclosure.
  5. Marketing: Each Party shall be entitled to disclose the existence of this Agreement and use the Developed Software and / or the Customer IP for marketing purposes only provided that the Party does not disclose any Confidential Information or any of the specific terms of this Agreement.
  1. Restraint
    1. Restraint:  Each Party shall not, during the Term or for a period of 12 months afterwards, directly or indirectly employ or contract the services of any personnel or contractor of the other Party unless:
      1. the other Party first consents in writing; or
      2. the employment or engagement results from a non-targeted publicly advertised vacancy.
  1. Termination
    1. Termination for default:  Either party may terminate this Agreement forthwith by written notice to the other party if the other party:
      1. breaches any material provision of this Agreement and the breach is not remedied within 10 days of the receipt of the notice from the first party requiring it to remedy the breach;
      2. commits an act of bankruptcy or makes any assignment or composition with its creditors;
      3. becomes liable to be placed in liquidation;
      4. cannot pay its debts when they fall due or is deemed not to be able to pay them in accordance with Section 287 of the New Zealand Companies Act 1993;
      5. has a liquidator appointed or its board or shareholders propose or pass a resolution to appoint a liquidator; or
      6. has a receiver manager or statutory manager appointed.
      7. both parties agree to act in conformance with all federal, state and local applicable laws, statutes and rules and regulations related to the delivery, placement use and payment of the System. Any action by either party that jeopardizes any licenses to operate held by the other party will allow the other party to immediately terminate this Agreement.
    2. Termination without cause: Notwithstanding the above, Ruby Play Net may terminate this agreement without any reason whatsoever by giving written notice to the other party.
    3. Consequences of termination:  On termination or expiry of this License Agreement : each party shall immediately provide to the other, all Confidential Information, or other information relating to the License, this Agreement or the other party which it holds; and
      1. the Customer shall pay to Ruby Play Net all Charges payable up to the date of termination or expiry. 
    4. Effect of termination:  Termination or expiry of this Agreement is without prejudice to any other right, power or remedy under this Agreement, at law, or otherwise, that either party has in respect of a default by the other party and shall not terminate any provisions of this Agreement which by their nature should survive termination.
  1. Force Majeure
    1. Force majeure event:  Neither party (Affected Party) will be liable for any delay or for any failure to fulfil its obligations under this Agreement as a consequence of a Force Majeure Event.
    2. Obligations on force majeure:  The Affected Party shall:
      1. as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the nature, effects and expected duration of the Force Majeure Event; and
      2. use all reasonable endeavours to continue to perform its obligations as required under the terms of this Agreement and to mitigate the effects of the Force Majeure Event on the performance of its obligations under this Agreement.
  1. Disputes
    1. Dispute:  If any dispute or difference arises between the parties, or if any matter or issue arises which the parties wishes to have resolved or remedied (Dispute) a party may serve a notice of Dispute on the other (Dispute Notice).  A Dispute Notice shall not be valid unless it:
      1. specifies reasonable details of the nature of the Dispute;
      2. designates the person with authority to negotiate and settle the matter or issue specified in the notice of behalf of the issuer of the notice; and
      3. requires the recipient of the notice to enter into negotiations with the issuer of the notice to resolve the matter or issue specified in that notice.
    2. Dispute notice:  Upon service of a Dispute Notice, the following procedures will apply:
      1. no party may commence any arbitration or court proceedings relating to any Dispute unless that party has first complied with the procedure specified in this clause 19;
      2. upon the issue of a Dispute Notice the parties’ representatives will enter into negotiations in good faith to resolve a course of action for resolution of the Dispute within 10 Business Days (or such longer period as the parties may agree) of the issue of a Dispute Notice;
      3. where any course of action for resolution of the Dispute is not resolved via the process in clause 19:
        1. the parties must immediately refer the Dispute to mediation;
        2. any mediation must be conducted in terms of the LEADR New Zealand Inc. Standard Mediation agreement.  The mediation must be conducted by a mediator and at a fee agreed by the parties.  Failing agreement by the parties as to appointment of a mediator within seven days of reference to mediation as set out above, the mediator will be selected and his/her fee determined by the President for the time being of LEADR New Zealand Inc. (or any suitable replacement organisation);
        3. if the Dispute remains unresolved after mediation then either party may submit the Dispute to arbitration or litigation.  
        4. the initial mediation may take place by video conferencing or telephone.
    3. Urgent relief:  Nothing in this clause 20 will prevent any party from taking immediate steps to seek urgent interlocutory relief before an appropriate court.
  1. Notices
    1. Notices:  Any notice given pursuant to this Agreement will be deemed to be validly given if personally delivered, posted, email to the address set out in the agreement  or to any other address either party may designate by written notice. Notice will be deemed received upon the other party reading the communication.
    2. Validity:  Any notice given pursuant to this Agreement will be deemed to be validly given:
      1. in the case of delivery, when received;
      2. in the case of facsimile transmission, when sent (which must be evidenced by production of a facsimile transmission slip showing successful transmission);
      3. in the case of email, when acknowledged by the party orally or by return email or otherwise in writing, except that return emails generated automatically shall not constitute an acknowledgement;
      4. in the case of posting, on the third day following the date of posting,
    3. provided that any notice personally delivered either after 5pm on a Business Day or on a day that is not a Business Day will be deemed to have been received on the next Business Day.
  1. General
    1. Relationship:  Ruby Play Net is engaged under this Agreement as an independent contractor and nothing in this Agreement (express or implied) shall operate so as to constitute a relationship of employer employee, partnership or agency as between the parties.
    2. Entire agreement:  This Agreement contains all of the terms, representations and warranties made between the parties and supersede all prior discussions and agreements covering the subject matter of this Agreement.
    3. Amendments:  No amendment to this Agreement will be effective unless it is in writing and signed by both parties.
    4. No assignment:  The Customer may not assign or transfer (or purport to assign or transfer) its interest in this Agreement without Ruby Play Net’s prior written consent.
    5. Waiver:  No exercise or failure to exercise or delay in exercising any right or remedy by a party will constitute a waiver by that party of that or any other right or remedy available to it.
    6. Partial invalidity:  If any provision of this Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this Agreement and its application will not be affected and will remain enforceable to the greatest extent permitted by law.
    7. Non-merger:  The agreements, obligations and warranties contained in this Agreement will not merge on completion of the transactions contemplated by it, but will remain in full force until satisfied.
    8. Further assurances:  Each party shall do all things (including executing all documents) necessary to implement and to carry out its obligations under this Agreement.
    9. Governing law:  This Agreement will be governed by and construed in accordance with New Zealand law.  Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New Zealand for the purpose of hearing and determining any disputes or proceedings arising out of or in connection with this Agreement.
    10. Counterparts:  This Agreement may be executed in any number of counterparts (including photocopies, facsimile copies and scanned copies) each of which is to be deemed an original, but all of which together are to constitute a binding and enforceable agreement between the parties.
    11. Costs: Except as otherwise provided in this Agreement, each party will pay its own costs and expenses in connection with the negotiation, preparation, execution and performance of this Agreement. 
    12. Acceptance of liability and responsibility to comply with all relevant laws By accepting these terms of conditions, Customer recognises that the games and platform provided by Ruby Play Net are solely for social gaming and entertainment purposes. Customer has sole responsibility for ensuring that its use of the Product complies with all applicable laws that pertain to the jurisdiction they operate in. 
  1. Definitions and Interpretation

Definitions:  In this Agreement, unless the context otherwise requires:

Acceptance shall, if Acceptance is relevant to a Deliverable, occur in respect of a Deliverable upon the provision of an acceptance test certificate by the Customer in accordance with this agreement.

Acceptance Tests means, means in respect of a Deliverable to which Acceptance is applicable

Additional/Other Services means the additional services, software and/or deliverables which, pursuant to clause 13.1, the Customer and Ruby Play Net agree that Ruby Play Net shall provide under this Agreement.

Agreement means this License Agreement

Business Day means any day other than a Saturday, Sunday or a statutory public holiday in Christchurch, New Zealand.

Charges mean the fees and charges for the provision of the Licence,  Services and Deliverables

Change Request means a request in writing requesting an alteration to the agreement.

Commencement Date means the date specified in the Contract Note.

Confidential Information means any and all information relating to this Agreement and any and all information of whatever nature directly or indirectly concerning the activities, business, finances, software, know-how, data (technical or non-technical), trade secrets, projects and forecasts, and information relating to systems or processes, marketing information, customer information and any other information and/or Intellectual Property, relating to or owned by either party or any of its Related Companies or which is obtained directly or indirectly from a party or any of its Related Companies under or in connection with this Agreement, in each case whether such information is oral, written or embodied in any other physical or electronic form. Confidential Information includes any information reasonably labelled as such by either party.

Contract Note means any contract note  that may attached to and forming part of this Agreement.

Consulting Services means any consulting services provided by Ruby Play Net in accordance with licence Agreement.

Defect means any error or fault in the operation of a Deliverable that:

(a) prevents the reasonable use and operation of the Deliverable by the Customer; and/or

(b) departs from the relevant User Requirements or functionality specified in any Documentation,

but does not include anything that:

(c) in respect of any Deliverable substantially composed using an agile style of development, and as a direct result the cause of the Defect was Unforeseeable; and/or 

(d) constitutes a Defect Limitation. 

Defect Limitation means any Defect, damage or other error or non-compliance if the Defect, damage or other error or non-compliance caused by or arising out of:

(a) acts of natural disaster or climatic conditions;

(b) alterations, repairs or adjustments to the Deliverable carried out contrary to Ruby Play Net’s or the manufacturer’s specifications;

(c) failure of the Customer to adhere to the obligations, undertakings, covenants, or warranties contained in this Agreement;

(d) changes to the processing methods not approved in writing by Ruby Play Net;

(e) any Third Party Software; or

(f) any of the limitations expressed in this Agreement or the relevant Statement of Work.

Deliverable means any Developed Software and/or Documentation (as applicable).

Developed Software means any software to the extent it is developed for and supplied to the Customer by Ruby Play Net under this Agreement (including all Updates, modifications, amendments, corrections, enhancements and/or developments made by Ruby Play Net to such software).

Documentation means any user manuals and other documentation (including those in electronic form), handbooks, educational material and other publications containing user directions and/or specifications relating to any Developed Software that Ruby Play Net is required to supply..

Existing Intellectual Property means all Intellectual Property which is owned by, or proprietary to, a party at the date of this Agreement or developed by (or on behalf of) a party other than pursuant to this Agreement, and includes any development, improvement, modification, alteration, adjustment, upgrade, derivation or adaptation of, renewal of, or addition to that Intellectual Property.

Force Majeure Event means an event or occurrence which is beyond a party’s reasonable control that leads to a delay or default in the performance to the affected party's contractual obligation (including, without limitation, acts of God or the public enemy, flood, earthquake, storm, cyclone, tornado, hurricane, lightning, fire, explosion, event of pandemic (as recognised by the World Health Organisation) government restrictions (including the denial or cancellation of any necessary license where such denial or cancellation is made through no fault of the affected party) distributed denial of service attacks or other viruses, failure of or interruption to telecommunications services, power supply or other utility services and the impossibility of the use of public or private telecommunications networks).

Intellectual Property means any patent, design, trademark, copyright, know-how, trade secret, confidential information and any other proprietary right or form of intellectual property (whether protectable by registration or not) in respect of any technology, concept, idea, data, documentation, written material, program or other software (including, without limitation, in source and object codes), specification, formula, drawing, program, design, system, process, business name, trade name, trademark, service mark, logo, mark, style or other matter or thing, existing or conceived, used, developed or produced by any person or used in relation to such technologies which is not already available in the public domain and other intellectual property and proprietary rights recognized by New Zealand law and applicable foreign and international laws, treaties and conventions.

Maintenance and Support Services means any maintenance and/or support services provided by Ruby Play Net under any applicable Agreement.

Quote means any quotation or estimate provided by or on behalf of Ruby Play Net.

Related Company has the meaning given to it in section 2(3) of the New Zealand Companies Act 1993.

Services means the services / licence and, for the avoidance of doubt, includes Consulting Services, Maintenance and Support Services, development services and any Additional Services.

Term has the meaning given to it in clause 1.

Third Party Software means any software (including open source software) sold, made available or licensed to the Customer either by a Third Party Software supplier directly to the Customer or indirectly through the supply of Developed Software by Ruby Play Net under this Agreement.  

Unforeseeable means any event, solution, recommendation or cost which, relying on the correctness and sufficiency of solutions available at the time of formulation, and the interpretation of that information, an experienced contractor (of the standard required under this Agreement) would not have taken into account before undertaking or causing (as applicable) the event, solution, recommendation or cost, or in respect of the occurrence of which it would not have taken other precautions.

Updates means any enhancement to an item of software (as distinct from a new product) made by or on behalf of Ruby Play Net, including patches and fixes and any updates necessitated by changes in law.

User Requirements means the operational, functionality, performance and other requirements and/or technical specifications of each item of Developed Software (including response times).

White Label means the proprietary platform and/or application that Ruby Play Net has developed that allows customers to brand and offer services based on Ruby Play Net’s technology.

  1. Interpretation:  In this Agreement, unless the context otherwise requires:
    1. expressions defined in the main body of this Agreement have the defined meaning in the whole of the Agreement, including the background;
    2. section, clause and other headings are for convenience only and will not affect the interpretation of this Agreement;
    3. singular will include plural and vice versa;
    4. where any term defined in this Agreement takes a different form for reasons of grammar, the different form has a corresponding meaning;
    5. reference to a party will include that party’s executors, administrators, successors and permitted assigns;
    6. Reference to dollars and $ refers to United States dollars (US$) exclusive of taxes unless specifically stated otherwise;
    7. References to times of day or dates are to New Zealand times and dates respectively unless specifically stated otherwise;
    8. any obligation not to do anything will be deemed to include an obligation not to suffer, permit or cause that thing to be done; and
    9. The terms “written” and “in writing” include any means of reproducing words, figures or symbols in a tangible and visible form.
  1. Force Majeure: If a Force Majeure exists for more than 120 days, either party may terminate this Agreement immediately on providing written notice to the other party.