Service Engagement and Terms and Conditions of Trade with iT360 and/or its associated trading name.
1.1 Each client engagement is governed by its respective MSA, these Terms, any written agreement, contract, proposal, quote and/or the relevant SoW when executed. iT360 will provide AI Services as agreed in the relevant SoW.
1.2 Each SoW will specify the deliverables, timelines, Fees, and objectives for the AI Services. Each SoW, once executed by both parties, shall form part of this Agreement. In the event of a conflict between this Agreement and a SoW, the terms of the SoW shall prevail to the extent of such inconsistency.
1.3 Work related to the SoW will commence on the later of the date specified in the SoW, the date this Agreement is signed by both parties, or the date the relevant SoW is signed by both parties.
2.1 iT360 is also an authorised reseller of a Third Party Software. Where the Client intends to purchase the license of a third party provider, iT360 will notify the Client and provide the Client with such third party’s terms and conditions. The license granted will be in accordance with the third party’s terms and conditions. The Client agrees to comply with the third party’s terms and conditions, and these Terms.
2.2 The third party retains all right, title and interest in the Third Party Software.
3.1 All AI Services and Software are provided as a SaaS unless expressly stated otherwise. The SoW will specify the AI Service availability.
3.2 From the SaaS Commencement Date until the end of the Term, subject to the payment of all applicable Fees, iT360 grants the Client a non-exclusive, non-transferable, revocable, and limited right to use:
(a) the AI Services;
(b) the Software solely to the extent provided by iT360 as part of the AI Services; and
(c) the iT360 IP only to the extent that the iT360 IP is incorporated into the Output,
all solely for the Client’s internal business operations in accordance with this Agreement (including but not limited to the Software Use Restrictions), the SoW, the Documentation, and any related licensing terms (including a third party licensor’s terms if applicable). iT360 expressly reserves all other rights in the Software and AI Services.
3.3 The Term recorded in the SoW is the “Initial Term”. The Term will automatically renew at the end of the Initial Term and any subsequent term for a renewal term of 1 year (each a “Renewal Term,” and together with the Initial Term, the “Term”) unless either party has provided written notice of termination in accordance with clause 13.1. All renewals are subject to payment of applicable subscription fees as recorded in the SoW.
3.4 Prohibited Uses: The Client shall not use the Software, AI Services and Third Party Software in any way not permitted by this Agreement, including but not limited to, the Client must not:
(a) attempt to disable or circumvent any access code, encryption, license key, or other security device or mechanism used in connection with the Software, AI Services, Third Party Software, or iT360 IP;
(b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the object code or source code of the Software, Third Party Software, or any other tools provided or used by iT360 or the third party provider;
(c) copy, modify, enhance, or create derivative works of any part or feature of the AI Services, Software, Third Party Software, iT360 IP, and any deliverables incorporating iT360 IP;
(d) use any part of the Software, AI Services, Third Party Software, or iT360 IP to build a product or service that competes with the AI Services, Software, Third Party Software, any other services provided by iT360, or the third party provider;
(e) lease, sublicense, sell, transfer, assign, share, or otherwise give rights to the AI Services, Software, Third Party Software, iT360 IP, and any deliverables incorporating iT360 IP;
(f) allow any third party or any party not expressly given the right to access (even if within the Client’s organisation) the Software, AI Services, iT360 IP, and Third Party Software; and
(g) where installation is required, install or configure the Software, AI Services, or the Third Party Software other than as specified by iT360 or the third party provider (as applicable).
3.5 Open source software: The Software may include Embedded Software. Use of such software is governed by this Agreement and/or by separate license terms, which iT360 will provide if required.
4.1 Unless iT360 agrees otherwise in writing, all Fees payable by the Client shall be paid in the following manner:
(a) 50% of the Fees must be paid to iT360 immediately upon the Client placing an order for the AI Services, Software, Third Party Software, or any other services, and upon iT360 issuing a valid GST invoice to the Client; and
(b) the remaining 50% of the Fees shall be paid in accordance with the payment schedule set out in the SoW.
4.2 Payment terms may vary depending on the nature of the project and whether the Client has a 20th of the month open account with iT360.
4.3 Subject to clause 4.1, the Fees, payment structure, and schedule for the Services shall be set out in the applicable SoW. Payment terms may include:
(a) an upfront deposit or where expressly stated as such, full payment on delivery (COD);
(b) for large projects, payment by instalments linked to project stages and milestones; and/or
(c) monthly recurring fees for ongoing services.
4.4 Unless otherwise specified in the SoW or agreed otherwise in writing, invoices will be issued on the 31st of each month and due for payment by the 20th of the following month.
4.5 Payments may be made via automatic payment (A/P), bank transfer, or credit card (credit card payments may attract a surcharge).
4.6 Monthly MSA invoices: Notwithstanding clause 4.4, monthly MSA or recurring service invoices are payable monthly in advance on the 1st of the month by automatic payment (A/P), unless otherwise agreed. The Client agrees that iT360 may automatically deduct our Fees from the Client’s registered preferred payment method. If the Client intends to change this, the Client must provide written notification to iT360.
4.7 Collection & Legal fees: If payment remains outstanding beyond the due date, iT360 may charge interest on the overdue amount at a rate of 2.5% per month, calculated daily, and/or suspend the provision of Services until the account is paid in full. If payment remains outstanding and is referred for collection, the Client agrees to cover all reasonable costs incurred, including but not limited to:
(a) Debt collection agency fees;
(b) Solicitor/client legal costs; and
(c) Court filing and enforcement fees.
4.8 The Client is liable for all costs relating to:
(a) the operation, performance, or costs related to interfacing the Software, AI Services, and the Third Party Software with any of the Client’s systems or Interfaced Application;
(b) any upgrades or changes required to be made to the Software, AI Services, or Third Party Software due to the Client changing or upgrading its Interfaced Applications;
(c) any other services required by the Client where they can be provided by iT360 or its Affiliates; and
(d) for any additional services to address any issues found at any time due to incorrect information provided by the Client, or if agreed assumptions relied on by iT360 are discovered to be untrue or not fully correct.
4.9 iT360 may review and change Fees annually, with at least 30 working days’ notice to the Client for any Fees that are charged on an ongoing basis.
4.10 iT360 may audit the Client’s use of the Software and AI Services upon reasonable notice. The Client must pay any underpaid fees identified as a result of such audit.
4.11 All Fees are exclusive of GST unless specified otherwise. If GST, or any other goods and services type tax (such as VAT), is payable, it is payable by the Client.
4.12 If no period for acceptance has been specified, the quote of Fees will be open for acceptance for thirty days from the date of the quote. iT360 reserves the right to withdraw or vary any quote at any time before the Client accepts the quote.
4.13 All payments by the Client must be made in full and without any deduction or right of set off or counterclaim. The Client agrees, however, that all moneys which iT360 may owe the Client on any account whatsoever may, at iT360’s option, be set off against payments due by the Client to iT360.
5.1 Timely: The Client shall provide timely access to necessary systems, Client IP, and infrastructure for the implementation of the AI Services.
5.2 Accuracy of Client Data: The Client shall ensure that all Client IP provided to iT360 is accurate, up-to-date, and in a format compatible with the AI Services. The Client is solely responsible for the content and legality of the Client IP and for the consequences of any erroneous, incomplete, or unlawful Client IP.
5.3 Validity of Client Data: The Client shall comply with all relevant legal and regulatory obligations concerning the collection, use, and provision of Client IP to iT360, including but not limited to the Privacy Act 2020 (and any variations or replacements thereof) and any other applicable data privacy laws.
5.4 Licenses and permissions: The Client warrants that it has all necessary rights, consents, and permissions to provide the Client IP to iT360 for processing in accordance with this Agreement. The Client warrants that it has the relevant licences, permissions, or intellectual property rights to the Interfaced Applications and to permit iT360 to perform its interfacing, integration, and any other functions required to interface the AI Services, Software and Third Party Software to the Interfaced Applications.
5.5 Output results: The Client is responsible for validating Outputs and results from the Software, AI Services, and Third Party Software before implementing decisions based on such Outputs in its business operations. The Client must not blindly utilise the Output.
5.6 Use requirements: The Client shall use the Software, AI Services, and Third Party Software in accordance with the Documentation, the Agreement, and the third party’s terms (if applicable).
5.7 Security:
(a) The Client is responsible for setting appropriate access levels for Users and keeping passwords secure. iT360 is not liable for any unauthorised access resulting from the Client’s, or its Users’, failure to keep access credentials secure.
(b) The Client must install and maintain its own security measures to protect its own network, Client IP, and Output.
(c) The Client must promptly install security patches provided by iT360. Failure to do so voids warranties and liability for related security breaches.
5.8 AI Limitations: The Client acknowledges that the Software, AI Services, and Third Party Software have limitations, including potential biases inherent in training data. The Client agrees to use the Software, AI Services, and Third Party Software responsibly and with appropriate levels of human oversight.
6.1 iT360 will provide training and support if and as agreed in the SoW.
6.2 If agreed in the SoW iT360 will monitor the performance of the automation processes and ensure their proper integration with the Client’s systems, providing necessary adjustments and maintenance as per the Agreement.
6.3 The first 90 working days post-launch includes fine-tuning and will be charged according to the SoW. Any ongoing changes or optimisations after that period will incur additional charges unless notified in writing.
6.4 Reporting frequency (monthly) is agreed on an individual Client basis if is included in the SoW.
7.1 iT360 shall use the Client IP solely for the following purposes, and shall not retain, disclose, or use such for any other purpose:
(a) providing the AI Services, Software, and Third Party Software to the Client as outlined in the SoW and in accordance with this Agreement; and
(b) complying with legal, governmental, or contractual terms.
7.2 iT360 may provide the Client IP to iT360’s Affiliates for the purposes recorded in clause 7.1.
7.3 Notwithstanding clause 7.1, the Client grants iT360 and its Affiliates a perpetual, worldwide, non-exclusive, royalty-free licence to use the Client IP in an anonymised and aggregated form for the purpose of improving (but not train the AI models that are deployed for other clients or purposes in a way that would expose the Client IP in a non-anonymised way or allow reconstruction of the Client’s original data) iT360 and its Affiliate’s systems, services, and AI models, and for other internal research and development purposes.
7.4 iT360 shall ensure that appropriate technical and organisational measures are in place to protect Client Data from unauthorised access, loss, or corruption. iT360 does not warrant that it has any specific internationally recognised certification (such as ISO or SOC) unless specifically noted otherwise in the SoW.
7.5 Except in accordance with clause 7.3 above, unless agreed otherwise in writing, Client IP will not be used to train AI models that will be deployed for other clients or purposes.
7.6 The Client agrees to allow iT360 and its Affiliates to remotely:
(a) monitor the Client’s use of the Software, AI Services, Third Party Software in compliance with this Agreement;
(b) monitor the performance of the Software, AI Services, Third Party Software; and
(c) access the Client’s systems to provide support or services as required by the Client.
8.1 Except as specifically stated in this Agreement, iT360 and its Affiliates do not warrant that the Software, AI Services, or Third Party Software will be error-free, uninterrupted, free from viruses, perform precisely as described in accompanying Documentation or will produce accurate, complete, or useful results in all circumstances. Outputs should be understood as recommendations rather than definitive decisions. The risk as to the selection and use of the Software, AI Services, Third Party Software and any other services provided by iT360 shall solely be with the Client. To the maximum extent permitted by law, the Software, the AI Services, the Third Party Software, and any other services provided by iT360 or its Affiliates are provided “as is” and iT360 and its Affiliates disclaim any and all guarantees, representations and warranties (express or implied) including any express or implied warranty of merchantability, non-infringement or fitness for a particular purpose. The Client acknowledges that it has exercised its own independent judgment in acquiring the AI Services, the Software, the Third Party Software, and/or any other services provided by iT360 and its Affiliates, and has not relied on any representations made by iT360 or its Affiliates that are not expressly stated in this Agreement.
8.2 The Client agrees and acknowledges that it is acquiring the AI Services, Software, Third Party Software, and any other services for the purposes of a business and that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Services under this Agreement. To the maximum extent permitted by law, the parties agree that sections 9, 12A, 13, and 14(1) of the Fair Trading Act 1986 do not apply, and that it is fair and reasonable that they are bound by this provision.
8.3 To the extent permitted by law, the parties agree to contract out of Part 3 of the Contract and Commercial Law Act 2017 (Sale of Goods) and agree that it is fair and reasonable that they are bound by this provision.
9.1 To the maximum extent permitted by law, in no event shall iT360 or its Affiliates be liable to the Client under or in connection with this Agreement for any of the following:
(a) indirect, special, incidental or consequential loss or damages of any nature (including loss or damages related to delays or interruption of AI Services);
(b) loss of profits or revenue;
(c) loss of data;
(d) use or inability to use the Software, AI Services, or Third Party Software;
(e) for any third party claim (except under clause 10.7); and/or
(f) punitive or exemplary damages, even if iT360 has been advised of the possibility of such damages.
Liability for damages shall be limited and/or excluded as provided in this Agreement, even if any exclusive remedy provided for in this Agreement fails of its essential purpose.
9.2 iT360 and its Affiliates shall not be responsible for any redundancies, job role changes, loss of profits, business interruption, or operational restructuring caused by the implementation of automation solutions unless specifically covered in the SoW.
9.3 iT360 and its Affiliate’s total aggregate liability to the Client under or in connection with this Agreement, whether in contract, tort (including negligence), or otherwise, is limited to the total Fees paid by the Client to iT360 in the 12 months immediately preceding the event giving rise to the claim. This limitation applies to all causes of action in the aggregate.
9.4 The Client agrees to indemnify, defend, and hold harmless iT360 and its Affiliates against any and all claims, losses, liabilities, damages, costs, and expenses (including legal expenses on a solicitor and client basis) arising out of or in connection with:
(a) a breach by the Client of this Agreement, especially clause 2 of this Agreement;
(b) the Client’s, or its Users’, unauthorised use or modification of the Software, AI Services, and/or Third Party Software;
(c) any claim that the Client IP or Client’s use of the Interfaced Applications infringes the intellectual property rights or privacy rights of a third party;
(d) the Client’s violation of any third-party rights through use of the Software, AI Services or Third Party Software;
(e) any decision, action, or implementation made by the Client based on Outputs; or
(f) any claims or proceedings against iT360 to the extent caused or contributed by the Client (or any of its agents or employees).
9.5 Neither party shall be liable for any failure to perform due to causes beyond its reasonable control, including but not limited to acts of God, war, terrorism, riots, fire, or natural disasters.
10.1 The Client retains ownership of its Client IP.
10.2 All iT360 IP, shall remain the sole and exclusive property of iT360 or its Affiliates (as applicable).
10.3 Except for the license rights expressly granted in this Agreement, no express or implied license, right or interest in or to any intellectual property of iT360 or its Affiliates is conferred by this Agreement.
10.4 Any improvements, modifications, or derivative works based on feedback provided by the Client shall belong exclusively to iT360 and its Affiliates (as applicable), notwithstanding any input or contribution from the Client. The Client shall retain a limited, non-exclusive, non-transferable, and revocable license to use such improvements solely in conjunction with the AI Services during the term of this Agreement. No payment or compensation to the Client will be required. Any portion of the Software, AI Services, or Third Party Software merged into or used in conjunction with other software or hardware will continue to be the property of iT360 and its Affiliates, and subject to the terms and conditions of this Agreement.
10.5 iT360 and its Affiliates reserve all right to modify, improve, or manage the Software, AI Services, Third Party Software, iT360 IP, and any feedback from the Client as noted in clause 10.4 above, as it deems appropriate in its sole discretion, including offering these or similar solutions to other clients. The Client waives any moral rights, intellectual property rights, or equivalent rights in any feedback, suggestions, or recommendations it provides regarding the Software, AI Services, Third Party Software, iT360 IP, or any other iT360 services.
10.6 The installation of upgrades, versions, and releases will occur automatically. The Client acknowledges all upgrades, versions, and releases are the property of iT360 or its relevant third party providers.
10.7 IP Claims: iT360 shall indemnify the Client for any amounts awarded against the Client in any final judgment or settlement as a result of a valid third-party claim that the AI Services and Software, when used as permitted under this Agreement, infringes the registered intellectual property rights of any third party, provided that the Client:
(a) promptly notifies iT360 in writing of the claim;
(b) gives iT360 sole control of the defence and settlement of the claim; and
(c) provides reasonable cooperation to iT360.
10.8 This clause sets out the Client’s sole and exclusive rights and remedies in relation to IP Claims (as defined in clause 10.7). Subject to clause 10.7 above, if a court of competent jurisdiction finds that the Software has infringed on a third party’s intellectual property iT360 or its Affiliates (as applicable) will use reasonable efforts to provide one of the following remedies:
(a) replace or modify the Software so that it becomes non-infringing;
(b) procure for the Client the right to continue using the Software; or
(c) if the above remedies are not reasonably available, terminate this Agreement on 5 working days’ notice to the Client without any additional liability.
10.9 iT360 and its Affiliates will have no liability to the Client with respect to any IP Claims (as defined in clause 10.7) to the extent that such claims arise from:
(a) misuse or use of Software, AI Services, or Third Party Software not in accordance with this Agreement;
(b) the Client’s breach of this Agreement;
(c) unauthorised modifications to the Software, AI Services, or Third Party Software;
(d) incorrect installation of the Software or the Third Party Software, or any updates, releases, and versions;
(e) use of Software, Third Party Software, or AI Services with software or hardware not approved by iT360;
(f) not installing patches or updates as iT360 or its Affiliates specifies as required and where such installations would have avoided the infringement;
(g) incorrect or misleading Client IP; and
(h) iT360 or its Affiliate’s reliance on agreed SoW assumptions.
11.1 The Client acknowledges that AI and automated systems may produce Erroneous Outputs. The Client is solely responsible for reviewing, testing, and validating all Outputs from the Software, AI Services, and Third Party Software before any use or reliance. iT360 expressly disclaims all liability for any loss or damage arising from the Client’s use of or reliance on any Outputs, including Erroneous Outputs, from the Software, AI Services, and Third Party Software. The Client acknowledges that it has the expertise and necessary resources to evaluate the Outputs and determine their applicability to its business needs.
11.2 The Client agrees and acknowledges that the underlying artificial intelligence technology is the intellectual property of a third party and has been developed by a third party. The Client further agrees and acknowledges that iT360 is limited in its ability to modify, test, enhance, correct, amend, or improve the technology provided by the said third party, and the Client accepts these limitations as an unavoidable aspect of the technology and the service provided by said third party providers.
11.3 Both parties agree to promptly address any identified issues related to AI bias, discrimination, or other harmful effects that may arise during the use of the Software, AI Services, and Third Party Software.
12.1 Each party shall hold the other party’s Confidential Information in confidence and shall not disclose that party’s Confidential Information to any third party without such party’s prior written consent.
12.2 Each party must protect the other’s confidential information at least as carefully as its own, and in all circumstances not less than a reasonable degree of protection.
12.3 iT360 may state publicly or list in announcements, presentations or other marketing materials the fact that the Client is an iT360 client and uses the AI Services and Software as an indication of iT360’s experience.
12.4 The parties acknowledge and agree that a breach of this clause 12 would cause irreparable harm and that either party shall be entitled to seek equitable relief from such breach.
13.1 Either party may terminate this Agreement with 30 working days’ written and acknowledged notice, subject to the terms outlined in the MSA regarding termination. iT360 may also terminate this Agreement immediately if:
(a) the Client breaches any material term of this Agreement and fails to remedy such breach within 14 days of receiving notice to do so;
(b) the Client becomes insolvent, enters receivership, administration or liquidation; or
(c) continued provision of the Software, AI Services, or the Third Party Software would cause iT360 to violate applicable law.
13.2 Upon termination or if this Agreement comes to an end:
(a) the Client’s right to use the Software, AI Services, Third Party Software (if applicable), and iT360 IP shall immediately cease;
(b) all outstanding Fees and invoices are due for payment within 5 working days of the completion of offboarding or the date of the final invoice, whichever is earlier;
(c) at the Client’s reasonable instructions, iT360 shall return or securely delete all easily identifiable Client Data to the extent reasonably achievable and remove all access rights. All information, including Client Data, stored on any cloud system not controlled or reasonably controlled by iT360 is not subject to this requirement as the Client acknowledges that the cloud storage service providers have their own terms of service; and
(d) at iT360’s reasonable instructions, the Client shall return or securely and permanently delete the Software, the AI Services, the Third Party Software, the iT360 IP, and all Documentation relating to the aforementioned, including removing or securely and permanently deleting it from all cloud applications.
13.3 Termination or expiration of this Agreement shall not release either party from liability for accrued obligations or any previous breach of this Agreement, and shall be without prejudice to other rights and remedies as may be available, including injunctive or other equitable remedies. The Client shall not be entitled to receive any rebate or refund of the whole or any part of any Fees paid or payable under this Agreement.
14.1 iT360 shall ensure that the Services comply with applicable laws and regulations, including but not limited to privacy and data protection laws (e.g., GDPR, NZ Privacy Act).
14.2 The Client shall not use the AI Services for any unlawful, harmful, discriminatory, or unethical purposes, including but not limited to activities that may harm individuals, violate human rights, or undermine democratic processes.
14.3 Both parties acknowledge their respective responsibilities under the NZ Privacy Act 2020 and other applicable data protection laws, and agree to cooperate with each other to ensure compliance.
15.1 iT360 will perform AI Services with reasonable skill and care and in line with the service levels outlined in the relevant SoW.
15.2 Any system outages or performance issues related to the AI Services will be addressed as in accordance with the agreed service levels with the Client per SoW or MSA agreement or the Documentation.
15.3 iT360 will provide a mechanism for the Client to report issues with the AI Services, including any Erroneous Output.
iT360 may amend these Terms and Conditions by providing the Client with at least 30 days’ prior written notice. If the Client does not agree to the amended terms, it may terminate this Agreement by providing written notice to iT360 before the effective date of the amendment. The Client’s continued use of the Services after the effective date will constitute acceptance of the amended terms.
17.1 Mutual Warranty: Each party represents and warrants that: (a) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (b) it shall comply with all laws, rules, and regulations applicable to the exercise of its rights and performance of its obligations hereunder.
17.2 Entire Agreement: This Agreement, together with the MSA and all executed SoWs, constitutes the entire agreement between the parties and supersedes all prior communications, representations, or agreements, whether oral or written, between the parties with respect to the subject matter. For Third Party Software, the Agreement includes the said third party’s terms and conditions in addition to those recorded in this clause. The parties acknowledge that this Agreement comprises several documents. In the event of any conflict, inconsistency, or ambiguity between the provisions of these documents, the documents will prevail in the following descending order of priority:
(a) The executed SoW;
(b) This Agreement (2.2 “AI & Automation Services”); and
(c) The MSA.
For a term to be considered “inconsistent”, it must contradict another term or conflict with it in such a way that effect cannot fairly be given to both clauses.
17.3 Dispute Resolution: If a dispute arises between the parties in connection with this Agreement, the parties will first seek to resolve the dispute in good faith through direct negotiation and in accordance with the MSA.
17.4 Governing Law: This Agreement shall be governed by and construed in accordance with the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
17.5 Assignment: This Agreement shall be binding upon the parties hereto and their respective successors and permitted assigns. The Client shall not assign, sublicense or otherwise transfer this Agreement or any right granted under this Agreement without iT360’s prior written consent. The Client acknowledges and agrees that the AI Services may be provided by iT360 or its Affiliates.
17.6 Privity: Where any provision of this Agreement is expressed to be for the benefit of any person other than either party (a Third Party), such provision is intended to confer a benefit on each such Third Party and may be relied upon and enforced by each such Third Party. Except was expressly set out in this Agreement, nothing in this Agreement shall be construed as giving any Third Party any right, remedy or claim and any amendment made to this Agreement does not require consent of any Third Party.
17.7 Survival: Terms of this Agreement that are expressed to or by implication are intended to survive termination or expiry of this Agreement, including all payment obligations, ownership terms, warranty disclaimers, indemnification obligations, exclusions and limitations of liability shall survive termination or expiry of this Agreement.
17.8 Counterparts: This Agreement may be executed in any number of counterparts (including by scanned copy or electronic signature), each of which will be deemed an original, but all of which, taken together, shall constitute one and the same instrument. The date on which the last counterpart is executed will be the effective date of this Agreement.
17.9 Further Assurances: Each party must do all things and execute all documents as reasonably necessary to give full effect to the terms and intentions of this Agreement and use reasonable endeavours to cause any relevant third parties to do the same.
17.10 Notices: All notices provided for herein shall be in writing and sent via certified mail, return receipt requested to the contact addresses set forth in the applicable documentation, or by email using the email address set forth in the applicable documentation, or such other addresses as may be notified by either party from time to time. Notices sent via certified mail shall be deemed to have been given upon delivery (by post) with confirmation of receipt (unless received after 5:00pm in the place of receipt, in which case receipt shall be deemed to have occurred on the next working day). Notices sent via email shall be deemed to have been given on the day that the email is sent (unless the email is sent after 5:00pm or on a day that is not a working day, in which case receipt shall be deemed to have occurred on the next working day).
17.11 Relationship: Nothing in this Agreement shall be construed as establishing a partnership, joint venture, agency, employment or other similar relationship between the parties.
17.12 Severability: If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect to the maximum extent possible. The parties agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.
17.13 Waiver: No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. No waiver by either party of any breach of this Agreement shall be considered as a waiver of any subsequent breach of the same or any other provision.
18.1 In this Agreement, unless the context otherwise requires:
“Affiliates” means in relation to iT360 are:
(a) companies under the common control of iT360 (control meaning the direct or indirect ownership of more than 50% of voting rights and/or capital shares), or the other company is the holding company a party, or there is another company to which both companies are related; and
(b) as well as the employees, officers, agents, subcontractors, suppliers and third party licensors of iT360 and any of the companies described at (a) above.
“Agreement” means this Schedule 21: AI & Automation Service Engagement and Terms and Conditions of Trade with iT360, the MSA, all executed SoWs, and any other documents expressly incorporated by reference.
“AI Services” means the artificial intelligence and automation services provided by iT360 to the Client, as described in the relevant SoW. These services may include, but are not limited to, process automation, AI-driven data processing, and the integration of automation tools within existing systems. The AI Services include the provision or availability of all necessary elements, software, and functions required to deliver such services, including (without limitation) the Software, Third Party Software (where iT360 acts as a reseller and this is expressly stated), Embedded Software, and iT360 Intellectual Property, as part of the services.
“Client” means the party engaging iT360 to provide AI Services under this Agreement, including its successors and permitted assigns.
“Client Data” means all data, content, materials, or information provided by the Client to iT360 for the purpose of providing the AI Services, including but not limited to personal information, business information, proprietary data, and software interface data.
“Client IP” means the Client’s own brand, the Client’s pre-existing intellectual property (excluding any intellectual property that contains iT360 IP) and Client Data.
“Confidential Information” means any information disclosed by iT360 or the Client, including but not limited to iT360 IP and Client IP, or that is created by a party under or in relation to this Agreement and relates to the other party or that other party’s business, that is not generally known to the public or, by its nature, should be reasonably considered confidential, and any information concerning this Agreement, but does not include information that:
(a) is or becomes generally available to the public other than as a result of a breach of an obligation under this Agreement;
(b) has been independently developed by the recipient, or was known to it prior to receipt, as evidenced by written records; or
(c) is acquired by the recipient from a third party who owes no obligation of confidence in respect of the information.
“Documentation” means any documentation provided by iT360 relating to the AI Services, including user manuals, technical specifications, and operational guidelines.
“Embedded Software” means any software licensed to iT360 by a third party (including open source software), in order to enable the provision of the AI Services to the Client.
“Erroneous Outputs” means Outputs that are inaccurate, incomplete, or biased.
“Fees” means the charges payable by the Client to iT360 for the provision of AI Services as specified in the relevant Statement of Work.
“iT360” means iT360 Limited, including its successors and assigns.
“iT360 IP” means all intellectual property rights, title, and interest, in and to the Software, AI Services, and Documentation including but not limited to the AI models, proprietary automation workflows, software, scripts, templates, source code, object code, and any other materials developed or provided by iT360 in the course of providing the Services, including all improvements and modifications thereto.
“Interfaced Applications” means third-party software not provided by iT360 that may be used by the Client to connect with the AI Services where permitted by iT360.
“MSA” means the Master Services Agreement between iT360 and the Client.
“Output” means and includes, but is not limited to, any result, content, data, information, recommendation, prediction, analysis, report, document, code, image, audio, or other material generated, produced, created, or derived by the Software or AI Services in the course of providing the AI Services to the Client, which may incorporate, be based on, or be derived from Client Data and/or iT360 IP, and which may be delivered to the Client as part of the AI Services required in the specified relevant Statement of Work.
“SaaS” means Software as a Service.
“SaaS Commencement Date” means the date specified in the SoW from which the AI Service will be made available to the Client.
“Software” means the computer programs and applications provided by iT360 as part of the AI Services. References to Software also include the Embedded Software unless expressly stated otherwise.
“Software Use Restrictions” means the limitations on the use of the Software as specified in this Agreement or relevant Statement of Work.
“SoW” or “Statement of Work” means a document setting out the specific deliverables, timelines, Fees, and objectives for the AI Services to be provided by iT360 to the Client.
“Term” means the total duration of the provision of AI Services to the Client, which includes a combination of the Initial Term and the Renewal Term. “Initial Term” and “Renewal Term” are as defined in clause 3.3.
“Third Party Software” means the software licensed or provided as a SaaS to the Client by a third party service provider or iT360’s Affiliate.
“Users” means the individuals authorised by the Client to access and use the Software, the Third Party Software, or AI Services. A User is only validly authorised if said user is authorised in accordance with this Agreement.
