KONSOL TERMS AND CONDITIONS

1. Background

1.1. The Rebel Fleet Limited (“Rebel Fleet”, “we”, “our”, “us”) and the Client have agreed that:

a) Rebel Fleet shall provide the Application for use by the Client;

b) Rebel Fleet shall provide Services and Support to the Client to assist the Client to use the Application; and

c)The Client will use the Application to capture and manage Metadata relating to the Client’s Production, and may provide access to the Application to End Users involved in the Production.

1.2. These terms and conditions and the Order Form (together, referred to as the “Agreement”) set out the terms on which the Client can use the Application and the Website, and the terms on which Services (including Support) are provided.

2. Licence of Application

2.1. The Application and all Intellectual Property is protected by intellectual property laws and international treaties. Rebel Fleet grants the Client a non-transferrable, non-exclusive licence to use the Application solely on the terms of this Agreement.

2.2. Subject to and conditional upon Client’s payment of the Fees and compliance with all other terms and conditions of this Agreement, the Client is licensed to:

a) Operate and use the Application and Documentation for the term of the Agreement, solely for Client’s Production and in accordance with the Documentation; and

b) Promote and distribute the Application to Client’s End Users, subject to the terms of the EULA.

2.3. The Client acknowledges that the Application contains certain system mandated rules and limitations on its operation (which are subject to change without notice), and any use, availability or operation of the Application is subject to those rules and limitations.

2.4. The Client may provide End Users with access to and use of the Application, provided however that all End Users must accept the EULA. The Client must not, and must not permit any other person to, access or use the Application except as expressly permitted by this Agreement and the EULA.

2.5. Except as expressly permitted in this Agreement, the Client must not:

a) Permit or enable any other person to install, copy or use the Application;

b) Modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law), merge, combine or create derivative works based on the Application, or attempt to derive or gain access to the source code of the Application or any part of the Application;

c) Rent, lease, lend, sell, resell, sublicense, assign, publish, transfer, loan or otherwise make available the Application to any other person, including through or in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service;

d) Copy the Application (except for the Client’s own back-up or archival purposes);

e) Remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application;

f) Use any Application in a manner or for any purpose that infringes, misappropriates or otherwise violates any law or Intellectual Property right;

g) Use the Application for purposes of competitive analysis of the Application, or refer to or otherwise use our Intellectual Property as part of any effort to develop a program having any functional attributes, visual expressions or other features similar to the Application or to otherwise compete with the Application (in any jurisdiction globally), or use the Application for any other purpose that is to our commercial disadvantage;

h) Use the Application in any way that would result in a violation of the Privacy Policy, a copy of which is available at www.rebelfleet.co.nz/privacy;

i) Otherwise use the Application beyond the scope of the license granted in this Agreement; or

j) Attempt to do any of the foregoing.

The Client acknowledges and agrees that the Application involves and include proprietary Intellectual Property rights, information and methodology, and that any disclosure or use of the Application not expressly authorised in this Agreement is not permitted and may result in irreparable injury to us not compensable by money damages. Accordingly, the Client agrees that we may be entitled to injunctive or other equitable relief to enforce this Agreement and/or prohibit any breach thereof, threatened or actual. The foregoing shall be in addition to, and without prejudice to, or limitation on, any other rights we may have under this Agreement, at law or in equity.

3. Services

Set up and configuration Services

3.1. If we agree to provide set up and configuration Services, we will work with the Client to determine relevant technical parameters and Metadata inputs, and corresponding configurations of the Application, before shooting begins. This may involve work with the Client, production studio, editors, VFX and post-production contractors, depending on the requirements of the Production.

3.2. Following receipt of all necessary information and Client Materials from the Client and payment of the setup Fees, we will assist the Client to set up and configure the Application in accordance with this Agreement and based on the information supplied by the Client. The Client assumes sole responsibility for any inaccurate or incomplete information provided to us. We will use our reasonable commercial efforts to provide the Services to the satisfaction of the Client, however we are reliant on the information provided by the Client and we disclaim any liability (whether in negligence or otherwise) for the configuration or other set up of the Application. The Client acknowledges and agrees that they have no right under this Agreement to receive the source code for the Application, and that setup Fees are non-refundable.

Further Services

3.3. We will provide further Services as described in the Order Form and/or agreed between the Parties. All further Services relating to the Production or the Application (including consultation, training, technical, advisory or operational services) shall be supplied on the terms of this Agreement, unless agreed otherwise in writing by the Parties.

3.4. The Client may, at any time, request customisations or changes to the Application. We shall evaluate the request, and if reasonably possible, implement the changes. The Client shall pay for all further Services at our usual rates (as specified in the Order Form, or available from us on request).

Support Services

3.5. We will provide Support as described in clause 13.

Terms applying to all Services

3.6. All Services are provided on the terms and conditions set forth in this Agreement.

3.7. The Client acknowledges that we may be required, in the course of providing the Services, to make assessments based on information supplied either by the Client, End Users or others. We will rely on this information and not verify its accuracy and completeness. The Client agrees that we will not be liable (whether in negligence or otherwise) for any loss or damage the Client or any other person sustains, directly or indirectly, in connection with our reliance on that information.

3.8. The Client will be responsible for confirming acceptance of Services. Items identified by the Client as incomplete or defective will be promptly remedied by us. If we are not notified in writing of incomplete or defective Services within ten (10) days of supply of those Services, then the Services will be deemed to be accepted.

4. Client obligations

The Client represents, warrants and undertakes that it will:

4.1. Not alter, or attempt to alter, the appearance or operation of the Application, except as provided through the Application’s control panel settings made available by Rebel Fleet;

4.2. Use its best endeavours to maintain the security and integrity of the Application (including keeping all passwords and access codes secret, except for authorised End Users) and comply with any technical and security directions and policies issued by Rebel Fleet in respect of the Application;

4.3. Promptly provide the Client Materials and all such other information and resources needed for us to assist the Client with set-up and configuration of the Application, and provide all cooperation and assistance we reasonably request to enable us to exercise our rights or perform our obligations under this Agreement;

4.4. Promptly notify Rebel Fleet in writing of all complaints, legal actions or demands arising from or in connection with the Application;

4.5. Not do anything to impair, or bring into question, the lawful operation or reputation of Rebel Fleet or the Application, and co-operate with Rebel Fleet to resist any attempt by a third party to do the same;

4.6. Comply with all applicable laws and legal obligations in connection with the use of the Application; and

4.7. Ensure that all Client Materials provided to Rebel Fleet for use in the Application are correct and lawfully able to be used in the Application, and notify Rebel Fleet immediately in writing if any Client Materials cease to meet these requirements.

5. Client Materials

5.1. The Client grants us a royalty-free, non-exclusive right and license to:

a) Use, publish and display the Client’s logo in association with the Application and as otherwise described in this Agreement; and

b) Use, reproduce, display, publish, distribute, modify and create derivative works and improvements of the Client Materials as part of the operation of the Application and to generate and manage the Metadata, and otherwise as necessary to provide the Services to the Client.

5.2. The Client acknowledges and agrees that:

a) The Client is responsible for the design, development, security, protection, modification, content, backup and maintenance of the Client Materials for use with the Application (except for any of these that we expressly agree to provide as part of the Services);

b) We do not vet, validate or approve the Client Materials available through the Services and we do not accept any liability for the Client Materials; and

c) The Client authorises us to amend or delete any of the Client Materials where the Client Material is, or is alleged to be, defamatory, in breach of copyright, illegal or not appropriate in our reasonable opinion to be accessed by or through the Application.

6. End User Access

6.1. The Client’s End Users may only use the Application with an active user access code issued by Rebel Fleet or the Client (which Rebel Fleet may grant, suspend or revoke at its discretion).

6.2. The Client shall ensure that only End Users who enter into the EULA receive and use a user access password. The Client is responsible for all user access passwords and user accounts of its End Users.

6.3. All acts of the Client’s End Users in connection with the Application shall be deemed to be acts of the Client.

6.4. The Client shall be bound by all the terms and conditions of the EULA, if the Client installs or otherwise uses the Application in any way.

7. Term and Termination

7.1. The Client and its End Users may use the Application from the Commencement Date until:

a) The expiry date (if any) specified in the Order Form (we may agree one or more extensions to the expiry date in writing); o

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b) This Agreement is validly terminated, which may occur before the expiry date (if applicable).

7.2. At the end of the Term the Client must stop using the Application and the Application shall cease to operate.

7.3. Either Party may terminate this Agreement by providing 30 days notice to the other Party.

7.4. The Client may, by written notice to us, terminate this Agreement if we commit a material breach of any of our obligations under this Agreement and fail to remedy that breach (where it is capable of being remedied) within 10 Working Days of written notice requiring it to do so.

7.5. Rebel Fleet may, by written notice to the Client, terminate this Agreement if the Client :

a) Commits a material breach of any of its obligations under this Agreement and fails to remedy that breach (where it is capable of being remedied) within 10 Working Days of written notice requiring it to do so; or

b) Persistently breaches any of its obligations under this Agreement; or

c) Fails to pay any Fees when they become due.

7.6. Upon termination, all licences and access codes granted to the Client in the Application will terminate and the Client must immediately cease all use and distribution of the Application. We will disable the availability of the Application for download or use by End Users. No portion of Fees paid in advance is refundable. The Client shall immediately pay to us all of our outstanding unpaid invoices.

7.7. The Application may contain software locking or disabling features which may activate upon attempted use of the Application in breach of this Agreement. The Client agrees that incorporation of these features into the Application is commercially reasonable and accepts all risk associated with these features.

7.8. The clauses of this Agreement that are capable of having effect after termination of this Agreement shall continue in full effect after termination, including clauses 2, 5, 7, 11, 12 and 14 - 22.

8. Fees and Payments

8.1. The Client will pay the Fees to Rebel Fleet in accordance with the Order Form without set-off or deduction. All invoices shall be paid within 10 Working Days (unless we agree a different payment period in writing). Fees must be paid in the currency set out in the Order Form, free of any currency control or other restrictions. We may charge interest at the rate of 2% above our overdraft rate on any late payments calculated on a daily basis from the date payment is due until the date payment is received.

8.2. Unless stated otherwise, Fees and other amounts to be paid under this Agreement are GST exclusive.

8.3. Fees may be reviewed by Rebel Fleet annually on the anniversary of the Commencement Date, provided however that Rebel Fleet shall provide at least 30 days notice of any increase to Fees.

8.4. Unless otherwise specified, Fees and other amounts to be paid under this Agreement are exclusive of any national, state or local sales, use, value added or other taxes (including GST), tariffs, duties or impositions of a similar nature imposed by any government or other authority which we may be required to pay or collect upon the supply of the Application or the Services. In the event the Fees are subject to any such taxes or other costs, the Client shall pay us an additional amount to ensure that we receive the amount it would have received had no such withholding been made.

8.5. Unless otherwise agreed, all payments due under this Agreement shall be made by transfer of cleared funds into a bank account specified in writing by Rebel Fleet.

9. Rebel Fleet Warranties

Rebel Fleet warrants that it has the right to operate and licence the Application.

10. Client Warranties

The Client warrants that:

10.1. It has the power and authority to enter into this Agreement and to perform its obligations and grant the rights and licenses it grants or is required to grant under this Agreement.

10.2. The disclosure, use and publication of the Client Materials will not infringe the rights of any other person (including any End Users).

11. Exclusion of Warranties and Liability

11.1. The Client expressly acknowledges and agrees that use of the Application and the Services are at its sole risk. The Application is provided on an “as is” and “as available” basis.

11.2. Except as provided in clause 9, to the fullest extent allowed by law Rebel Fleet expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to warranties as to merchantability, fitness for a particular purpose, or interoperability between the Application and any type(s) of device or system.

11.3. Rebel Fleet makes no warranty or representation as to the usefulness, availability or otherwise of the Application. Nor does Rebel Fleet make any warranty that the Application is free of errors.

11.4. Rebel Fleet makes no warranty regarding any Services. No advice or information, whether oral or written, obtained by the Client from the Application or Website or through the Services or otherwise shall create any warranty not expressly recorded in this Agreement.

11.5. Rebel Fleet may (but is not obliged to) add, remove or modify functions, operations, interfaces, etc., of the Application at its discretion. The Application is subject to change without notice.

11.6. Rebel Fleet shall use all reasonable efforts to provide the Services in a timely manner, and to meet any times for delivery of Services specified in the Order Form (if any), although delivery of our Services usually depends on external factors including availability of Client resources and instructions, supply of Client Materials, liaising with End Users and other factors beyond our control. Delivery times therefore cannot be guaranteed and shall not be a representation or condition of the Agreement. We shall not be liable for any loss, damages, claims, costs and other amounts arising from or in relation to any delay in the supply of our Services or the Application. The Client shall not be relieved of any obligation to accept or pay for any Services by reason of any delay in delivery.

11.7. If Rebel Fleet breaches any warranty expressly stated in this Agreement, or any condition or warranty that cannot legally be excluded from this Agreement, or is otherwise found liable (for any reason, including negligence), then Rebel Fleet’s entire liability shall be limited to the lesser of:

a) The Application Licence Fees paid by the Client under this Agreement in the 12 month period preceding the breach (or, if there is more than one breach, the date of the first breach) or the event giving rise to the liability; or

b) NZD $1,000.

11.8. Except as provided in clause 11.7, Rebel Fleet shall not be liable for any loss, damage or expense, including (without limitation) loss, damage or expense arising from lost profits, business interruption, data loss, reputational damage, regulatory action (including fines and penalties), civil (including negligence) or criminal action, End User complaints, or any other loss or damage whatsoever resulting from any use, inability to use, or reliance upon the Application, or any Support, Services or advice provided in relation to the Application or to the Client or any End User.

11.9. No claim arising out of this Agreement, regardless of form, may be brought by the Client more than 12 months after the event that gave rise to that right of claim.

12. Indemnities

12.1. The Client shall hold and keep Rebel Fleet fully indemnified against all costs, losses, claims, or damages (including legal fees and expenses on a solicitor and own-client basis) incurred or suffered as a direct or indirect consequence of any:

a) Default or breach of the Client’s obligations under this Agreement;

b) Misuse, or unauthorised use, of the Application by the Client or an End User;

c) Configuration of the Application by the Client;

d) Services undertaken in accordance with any specifications or directions provided by or on behalf of Client;

e) Dispute or claim arising from or relating to the Client Materials;

f) Dispute or claim between or involving an End User and the Client; or

g) Dispute or claim by or relating to any End User in connection with the Application.

12.2. The indemnities in clause 12.1 are in addition to any indemnities or remedies provided elsewhere in this Agreement or available at law.

13. Support

13.1. We shall, at your request, provide you with support (“Support”) for the Application. Support will be provided by us or by another designated party certified by us. Support may include (at our discretion) telephone and/or email help desk support, remote diagnostics and assistance (if you provide the necessary communications access and infrastructure as specified by us to facilitate this), emergency bug fixes, and other such workarounds to ensure the Application functions as designed, but we shall have no obligation to provide on-site attendances or the provision of personnel, contractors or other resources unless we agree otherwise.

13.2. Support is limited to issues that, in our sole opinion and discretion, arise directly from defects in the Application, and does not include the implementation of the Application or training on how to use the Application.

13.3. Where a service or request does not qualify for Support under this Agreement, if we agree to provide the requested service(s) or request(s), then we will provide those on our usual terms and Fee rates for Services (we may waive or reduce the Fees, in our absolute discretion).

13.4. We may from time to time release updates to the Application. The Client is required to accept updates released by us and acknowledges that, by downloading or installing the updates, that those updates will be considered part of the Application and subject to the terms and conditions of this Agreement.

14. Privacy

If the Client submits or uploads personal information to us or our related companies, the Client consents to the collection, use, processing, transmission and disclosure of that information by us and our related companies. The Client warrants that it has obtained all necessary consents to disclose the personal information to us and our related companies, and for us and our related companies to retain and use that information for the supply of the Application or Services requested by the Client and any of the other purposes set out in our current Privacy Policy (accessible at www.rebelfleet.co.nz/privacy). Our Privacy Policy may be updated from time to time. The parties hereby agree that our Privacy Policy, as may be modified from time to time by us, is incorporated into this Agreement. The Client acknowledges that it is responsible for ensuring the way it uses the Application complies with applicable privacy laws and regulations in its location.

15. Intellectual Property

15.1. The Client acknowledges Rebel Fleet’s existing and continuing rights in the Application, Website and the Intellectual Property and shall not in any way challenge or dispute or make claim to the ownership of or any right in the Intellectual Property.

15.2. Subject to clause 15.3, all Intellectual Property created in the course of configuring and operating the Application (and any derivatives thereof), including modifications or improvements devised, requested or commissioned by the Client, will vest solely in Rebel Fleet and be deemed part of the Intellectual Property.

15.3. The Client warrants that it has rights in and to the Client Materials, including all rights needed to perform this Agreement. As between the parties:

a) The Client is the owner of all rights, title and interest in and to the Client Materials, subject only to the license granted to us in this Agreement. All other rights in and to the Client Materials are expressly reserved by the Client; and

b) Upon payment of all Fees and other amounts payable under this Agreement, ownership of the copyright and all other proprietary rights in the Metadata shall transfer to and vest in the Client. We shall take all steps reasonably necessary (at the Client’s expense) to formally assign and transfer the Metadata rights to the Client, upon request.

15.4. We shall retain the right to use the Metadata and Client Materials for future reference and support, for internal purposes such as auditing, data analysis, and research, and to help us develop, deliver, promote and improve our products and services. We will not disclose any information which identifies the Production or the Client to third parties.

16. Confidentiality

16.1. Each Party shall maintain as strictly confidential at all times and shall not at any time, directly or indirectly:

a) Disclose or permit to be disclosed, the Confidential Information to any person;

b) Use the Confidential Information for any purpose other than that for which it was provided;

c) Use the Confidential Information to the detriment of the Party that supplied the Confidential Information; or

d) Copy or record by any means, memorise or use the Confidential Information for its own benefit or the benefit of any person other than the Party that supplied the Confidential Information, except:

i) As required by law or to enforce the Agreement;

ii) As is already or becomes public knowledge otherwise than as a result of a breach of this Agreement; or

iii) As authorised in writing by the Party that supplied the Confidential Information.

16.2. The Parties may disclose these terms to their respective legal advisers, auditors, insurers and accountants.

16.3. We reserve the right to use the Client’s name and logo in our advertising material to publicise the fact that the Client is our customer. We may engage with the Client to complete a case study, however any material published will not contain any commercially confidential information.

17. Non-Solicitation

17.1. For the Term of this Agreement, and for twenty-four months after the expiry or termination of this Agreement, the Client will not employ or engage, or procure a third party to employ or engage, any person that is or was an employee, contractor or subcontractor of Rebel Fleet during the Term. If the Client breaches this clause, we will be entitled to liquidated damages from the Client equal to the compensation paid by us to the applicable employee, contractor or subcontractor during the prior twenty-four months.

18. Notices

18.1. Any notice required to be given by this Agreement shall be given in writing either personally, by post or by email to the recipient’s last known address for that type of communication.

19. Disputes

19.1. If a Party claims that a dispute has arisen in relation to this Agreement, that Party may at any time give written notice to the other Party. The notice must adequately specify the nature of the dispute.

19.2. On receipt of a notice delivered in accordance with clause 19.1, the Parties must, in good faith and acting reasonably, do their best to resolve the dispute quickly through confidential negotiation.

19.3. If the Parties do not resolve the dispute by negotiation within 10 Working Days of a notice being delivered in accordance with clause 19.1, then the dispute shall be escalated to the respective chief executives (or equivalent) of the Parties, who must, in good faith, endeavour to resolve the dispute on mutually acceptable terms.

19.4. Where escalation occurs, the Parties’ respective chief executives (or equivalent) shall meet (or otherwise communicate, if a meeting is not practicable) and attempt to resolve the dispute through good faith negotiations on a ‘without prejudice’ basis.

19.5. Neither Party shall commence any arbitration or litigation in relation to the Agreement unless 10 Working Days has passed since the Parties’ respective chief executives (or equivalent) have met (or otherwise communicated) and endeavoured in good faith to resolve the dispute on mutually acceptable terms.

19.6. Any dispute arising under the Agreement which cannot be settled by negotiation between the Parties shall be submitted to arbitration in accordance with the procedures specified in Schedule A. The Parties shall continue to perform their obligations under the Services Contract as far as possible as if no dispute had arisen pending the final settlement of any matter referred to dispute resolution pursuant to this clause.

19.7. Nothing in this clause 19 shall preclude either Party from taking immediate steps to seek urgent equitable relief.

20. Third Parties

20.1. Except as we may agree in writing, we have no responsibility for the selection, implementation, interoperability and performance of any third party hardware, software and services used in association with the Application. If you enter into any contract(s) with any other party (whether for the supply of hardware, software, support or otherwise) which uses or incorporates the Application (in all cases, referred to as an “End User Contract”) then you acknowledge and agree that:

a) We have no liability to you for any act or default, or otherwise, in connection with any End User Contract; and

b) Our obligations pursuant to this Agreement shall be our sole liability, and your sole remedy against us, on account of any claim relating to the quality or performance of the Application.

20.2. You are not permitted to offer services to third parties using or incorporating the Application (or any part of the Application), or otherwise permit third parties to benefit from your use of the Application, unless expressly permitted under a separate formal, executed agreement with us.

21. Suspension of Application

a) On occasion we may be required to temporarily suspend the Application, without compensation, in order to conduct necessary scheduled maintenance or for scheduled updates or modifications. In such cases we will endeavour to provide the Client with reasonable notice of such suspension.

b) We may suspend the Client’s licence or an End User’s login to access or use the Application at any time without notice and without compensation, if in our reasonable opinion:

i) It is necessary to safeguard the provision of the Application and integrity of the Application or our system;

ii) The Application fails or requires urgent modification or maintenance;

iii) Security situations, for example a DoS attack on a server, which threatens the stability of the Application or our system;

iv) There is or has been unauthorised, unlawful or fraudulent use of the Application by the Client or one of its End Users;

v) It is necessary to comply with a direction, order or request of any government authority or other competent authority; or

vi) The Client fails to comply with any of the terms of this Agreement.

22. Other Terms

22.1. The Client acknowledges that it is using the Application for business purposes only, and that the Consumer Guarantees Act 1993 and Sections 9, 12A and 13 of the Fair Trading Act 1986 shall not apply.

22.2. The Parties acknowledge that they are not partners, joint-venturers, fiduciaries or agents of the other.

22.3. This Agreement will be governed by and shall be construed in accordance with New Zealand law (excluding sections 202 – 206 of the Contract and Commercial Law Act 2017 (United Nations Convention on Contracts for the International Sale of Goods)). The Client irrevocably submits to the non-exclusive jurisdiction of the New Zealand courts.

22.4. If any provision (in full or part) of this Agreement is or becomes illegal, invalid, unenforceable, void or voidable, it shall not affect the legality, validity or enforceability of the other provisions or other part of any provision of this Agreement and shall be severed from this Agreement so that the remaining provisions or other part of any provision shall remain in full force and effect and shall be valid and enforceable to the fullest extent permitted by law.

22.5. The Agreement constitutes the entire understanding and agreement between the Parties in relation to the subject matter it deals with, and supersedes all previous agreements and understandings between the parties relating to the same subject matter. Any documents supplied by the Client which contain any terms and conditions shall have no effect to the extent that they are inconsistent with the Agreement. In the event of any conflict or discrepancy arising between the Order Form, these terms and conditions and (if applicable) the EULA, the contract documents shall be interpreted in the following order of precedence to the extent required to resolve the conflict or discrepancy:

i) Order Form;

ii) These terms and conditions; and

iii) EULA.

22.6. The Client may not assign, sub-contract or sub-license any of its liabilities or rights under this Agreement to any other person, without the prior written consent of Rebel Fleet. Rebel Fleet may assign or sub-contract all or any part of its rights and obligations by written notice to the Client.

22.7. The Client will do, sign, execute and deliver (and procure that each of its Personnel will do, sign, execute and deliver) all such documents and things as are necessary to give full effect to this Agreement.

22.8. No variation or waiver of or any consent to any departure by Rebel Fleet from a provision of this Agreement is of any force or effect unless it is confirmed in writing and then that variation, waiver or consent is effective only to the extent for which it is made or given.

22.9. No failure or delay by Rebel Fleet to exercise any power, remedy or right in relation to this Agreement shall:

22.9.1. Prejudice, limit, affect or operate as a waiver of that power, remedy or right; or

22.9.2. Be deemed to waive any default or breach of any obligation, liability or agreement by the Client.

22.10. The exercise or partial exercise of any power, remedy or right shall be without prejudice to Rebel Fleet’s right to exercise that or any other power, remedy or right at the same time (except insofar as the exercise of any power, remedy or right is inconsistent with the exercise of any other power, remedy or right) or in the future.

22.11. Rebel Fleet will not be liable for any failure or delay in performing an obligation under this Agreement that is due to causes beyond its reasonable control, such as natural catastrophes, terrorist acts, governmental acts or omissions, laws or regulations, labour strikes or difficulties, pandemics, epidemics, transportation stoppages or slowdowns, communications failures or hardware failures.

23. Definitions

23.1. Application means the KONSOLTM software application we provide to the Client (as further described at https://www.rebelfleet.co.nz/konsol/, along with the Documentation and related materials that we provide or make available to the Client.

23.2. Application Licence Fees mean the fees for access and use of the Application, as specified in the Order Form, excluding Fees for Services and Support.

23.3. Commencement Date means the commencement date specified in the Order Form, or such other date as the Parties may agree in writing.

23.4. Confidential Information means the commercial terms of this Agreement, information relating to the Application, Documentation, Services and Intellectual Property, any passwords and access codes used to access the Application, the Metadata, the details of the Production, and other information designated by Rebel Fleet as confidential, but excludes information that is in the public domain (unless it came into the public domain by a breach of confidence), is already known at the date of the Order Form, or is obtained lawfully from a third party without any breach of confidence. Where information relates exclusively to one Party, nothing in this Agreement shall require that Party to maintain confidentiality in respect of that information.

23.5. Client means the Party named in the Order Form as the Client.

23.6. Client Materials means all materials and information (including images and sound recordings created by you or on your behalf by third parties and provided to us) that is provided to us by or on behalf of Client (including all information or material uploaded or supplied by End Users) in connection with this Agreement.

23.7. Documentation means all instructions, specifications and other documents and materials that we provide or make available to the Client in any medium and which describe the functionality, components, features or requirements of the Application, including installation, configuration, integration, operation, use, Support and/or maintenance.

23.8. End User means the persons (including crew members, production, post-production and VFX contractors) that download, install, or use the Application as a contractor of (or otherwise by the invitation of) the Client.

23.9. EULA means the terms under which End Users are licensed by us to use the Application as specified in our current version (from time to time) of the end user license agreement, available from us on request.

23.10. Fees means the Application Licence Fees, Services fees, Support fees and any other fees or amounts payable by the Client under this Agreement.

23.11. Intellectual Property means all and any patents, patent applications, trade marks, service marks, trade names, copyrights, know-how, trade secrets, domain names, rights in Confidential Information, and all and any other intellectual property rights, including all applications and rights to apply for any of the same, in (or in relation to) the Application (excluding Client Materials).

23.12. Metadata means all shoot and content information derived from camera and camera department, sound and script supervisor, DIT, Qtake (or similar software), video assist, VFX department, post production and other sources that enable clip based information to be provided for dailies, editorial and analytics to the shoot, studio or production company, and includes (without limitation) identification and date/time codes, number of cameras, camera settings, script notes, sound recordist comment, scene and take information, colour pipeline and information, VFX information, and any other descriptive, structural or administrative metadata.

23.13. Order Form means the order form, estimate, engagement letter, proposal or similar document (in any form, including email) provided by Rebel Fleet, setting out the specific terms and fees for use of the Application and supply of any Services or Support.

23.14. Parties means Rebel Fleet and the Client, and “Party” means one of them.

23.15. Personal Information has the meaning as defined in the Privacy Act 2020 (NZ).

23.16. Personnel means any employee, contractor, agent, or representative of the Client.

23.17. Production means the production specified in the Order Form.

23.18. Rebel Fleet means The Rebel Fleet Limited.

23.19. Services means (collectively) the set up and configuration services, further services and support services described in clause 3.

23.20. Support means the support services described in clause 13.

23.21. Term means the term of this Agreement as described in clause 7.1.

23.22. Website means any website (or websites) operated by us, including https://www.rebelfleet.co.nz/konsol/ and any websites on the root domain rebelfleet.co.nz) and used as part of the Application.

23.23. Working Day means any day of the week other than:

a) Saturday, Sunday, and public holidays celebrated in Auckland, New Zealand; or

b) A day in the period commencing with the 24th day of December in any year and ending with the 5th day of January in the following year.

24. Interpretation

24.1. Singular words include the plural and vice versa.

24.2. References to any Party shall mean and include a reference to that Party, its successor, executors or personal representatives (as the case may be), and transferees.

24.3. Any covenant on the Client not to do something shall also constitute an obligation not to suffer, permit, cause or assist any other person (including any Personnel) to do that thing.

24.4. Any reference to any legislation, regulation, or code includes reference to any modification, substitute for, consolidation or re-enactment of it.

24.5. “Person” includes any natural person, company, corporation, partnership, firm, joint venture, association, trust, organisation, society, or other group or association of persons (whether incorporated or not), governmental or other regulatory bodies or authorities or semi-governmental body or agency or other entity, in each case whether or not having separate legal personality.

24.6. If there is more than one person named as the Client, the liability of the named Clients is joint and several.

24.7. Specifying anything in this Agreement after the words ‘include’, ‘including’ or ‘for example’ or similar expressions does not limit what else is included;

Schedule A – Disputes Resolution Procedure

1. Application of Dispute Resolution Procedure

Any dispute, controversy or claim arising out of or relating to this contract shall be determined by arbitration in accordance with the following procedures and the Arbitration Act 1996 (New Zealand).

2. Initiation of Dispute Resolution

Any Party may refer a dispute to arbitration by giving notice to the other Party that it seeks a matter in dispute to be referred to arbitration. The notice shall set out the matter in dispute in sufficient detail to enable the other Party to be adequately informed as to the nature of the dispute.

3. Procedure For Appointment Of Arbitrator

Any dispute shall be heard by a single Arbitrator, which Arbitrator shall:

a) be appointed by the Parties, if they can agree on a single Arbitrator; or
b) be appointed by the President for the time being of the New Zealand Law Society (“President”), if the Parties cannot agree on a single Arbitrator.

Any Arbitrator appointed shall act as an expert and have skills in law and technology, and experience in commercial matters.

If a Party objects to the appointment of a particular Arbitrator then that Party may object within three Working Days of receiving notice of that Arbitrator's appointment. If the objection establishes that the proposed Arbitrator could not reasonably be expected to have the confidence of the objecting Party then the President shall appoint another Arbitrator in consultation with the Parties to the dispute. The President's decision on any further appointment shall be final. Any determination of the Arbitrator will be binding and shall not be reviewable in any Court of law except to the extent that it may involve an error of law. The terms of appointment of the Arbitrator shall, if the Parties fail to agree, be fixed by the President.

4. Decision of Arbitrator

The Arbitrator may in addition to the powers of an arbitrator under the Arbitration Act 1996, appoint an expert to investigate and report to the Arbitrator on any matter requiring decision.

The decision of the Arbitrator on any matter so referred to the Arbitrator shall be final and binding on the Parties.

The arbitrator may, in the arbitrator’s unfettered discretion, determine and award the costs of the Dispute.

Unless the decision of the Arbitrator contains an award of costs the Parties shall bear all the costs of the arbitration equally.