Terms and Conditions

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General Terms and Conditions

These General Terms apply to all Goods and Services provided by Umbrellar Technology Group Limited (as defined below) (Umbrellar) to any person (each a Customer). 

This version is effective from 01.03.202419

Services - General

1. Agreement: All Goods and Services will be supplied by Umbrellar upon the specific terms applicable to those Goods or Services (specific Service Descriptions) and these General Terms (together the Agreement).

2. Conflict: If there is any conflict between these General Terms and the specific Service Description, the specific Service Description will prevail.

3. Service confirmation: Umbrellar will give the Customer a Statement of work, order, a set up email or other written confirmation detailing the Services to be supplied and the commencement date. The Customer is deemed to have accepted, and be bound by, the Agreement from the commencement date and any services selfprovisionedself provisioned that attract a fee.

4. Fixed term arrangements: If the Goods or Services are to be provided for a fixed term, then, upon the expiry of the term, Goods and Services will continue to be provided on a monthly basis at the fee applying during the fixed term. Clause 9.1 will apply in regard to termination.

5. Commencement of Services: Umbrellar will use its reasonable endeavours to commence the Services on the commencement date, provided that Umbrellar will not be liable for any delay in doing so resulting from any act or omission of the Customer or any other person, including any failure by the Customer or any other person to supply information, inputs, hardware, software or other systems necessary to commence the Services.

6. Variations: If the Customer wishes to change the Services, Umbrellar will provide a further written confirmation pursuant to clause 1.3, which will supersede any previous written confirmation.

7. Service level: Where applicable, Umbrellar will use its reasonable endeavors to supply the Services to the applicable service level specified in the specific Service Description.

2 Charges

1. Payment: The Customer will pay (in New Zealand currency) all applicable fees and charges (without deduction or set off) in the manner specified in the specific Service Description, or if no payment method is specified, then as follows:

   1. for Goods or Services to which an advanced monthly fee applies, the fee must be paid in advance before the first day of the month for which it applies. If Services commence intra month, the fees for that month will be added to the fees payable for the following calendar month; and

   2. for Goods or Services to which a one off fee applies, including fees payable for support and other services that are not included in any set charges, payment must be made inline with the NET period on the invoice unless Umbrellar requires otherwise.

2. Credit card payments: Payments by credit card will may incur a surcharge.

3. Cheque payments are not accepted.

4. GST/taxes: The Customer will pay goods and services tax (GST) and all other applicable duties and taxes. Umbrellar will advise the Customer of the GST payable on its invoices.

5. Variations: Where charges and fees are payable in advance ("Subscription Fees"), Umbrellar may change them, or any pricing structure, at any time upon written notice to the Customer, provided that such change will not take effect until one month after Umbrellar gives notice.  Charges and fees that are incurred on a usage or consumption basis ("Usage Fees") are subject to change by the relevant Service Provider at any time, and will be charged to the End Customer based on the Usage Fees applicable on the relevant date(s).   The Customer may terminate this Agreement under clause 9.1 if it objects to any change in the Subscription Fees or Usage Fees.

6. Interest: Accounts in default are subject to a late payment charge of $25, and interest at a rate of 2% above Umbrellar's bank's commercial overdraft rate, from the date payment was due to the date Umbrellar receives payment in cleared funds.

7. Withholding payment: The Customer shall not withhold or set off any amount payable to Umbrellar.

8. Third party charges: Unless Umbrellar agrees otherwise in writing, the Customer must pay all fees and other charges of those third parties engaged by the Customer or Umbrellar in relation to the performance of the Services, including services relating to the installation of telephone lines, internet, software licesing or any equipment.

9. Enforcement costs: The Customer is liable for all costs and expenses (including all legal costs and expenses incurred on a solicitor/client basis) incurred by Umbrellar in the enforcement of any of its rights under the Agreement.

10. Deposit: Umbrellar may require the Customer to pay a security deposit of an amount specified by Umbrellar before providing any Goods or Services. Umbrellar may keep all or any of the deposit as compensation for any costs, losses or liability suffered or incurred by Umbrellar due to the acts or omissions of the Customer, or any of its employee

s, agents, contractors or any other person for whom the Customer is responsible. Umbrellar will return the balance once it is satisfied the Customer has complied with all its obligations under the Agreement.

1. Refunds: If the Customer terminates this Agreement, it may claim a refund of any overpayment or of any pre-paid fees which are unused as at the date of termination.  Any claim for a refund must be received by Umbrellar within one (1) month from the date of termination of Services.  No refunds will be given for claims received outside of this period.  It is the Customer's responsibility to ensure that any direct credit instructions are terminated at the time its Services are terminated.  Refunds for overpayment (where this Agreement has not been terminated) will be paid as credit notes against future invoices. 

3 Acceptable Use Policy

1. Compliance: The Customer must at all times:

   1. comply with the terms of this Agreement, including any specific Service

Description and third-party software terms incorporated within it;

1. comply with all laws applicable to the use of the Goods and Services;

2. ensure the Customer holds, maintains and complies with all software licenses relating to the use of the Goods and Services;

3. refrain from transferring, storing or using offensive, unlawful or objectionable materials or images;

4. refrain from engaging in spamming, attacking or any other form of malicious or unlawful conduct;

5. refrain from engaging in any other conduct, which in Umbrellar's view, affects, or may affect, Umbrellar's ability to provide Goods or Services to the Customer or to any other person, or causes, or may cause, harm or loss to Umbrellar or any other person.

1. Prohibited publications: Without limiting clause 3.1(a), the Customer must not publish, transmit, store or file the following content when using the Goods or Services (including pictures, links and texts):

   1. any material, which in Umbrellar's view, breaches or infringes, or may breach or infringe, Umbrellar or any other person's copyright, or trademark, patent, design or other rights;

   2. any material that is defamatory or unlawful;

   3. any material that is intended to cause harm to an individual or group of individuals;

   4. any material which, in Umbrellar's view, is or contains anything obscene, pornographic or offensive, including links to any such material;

   5. distribution lists to be used via unsolicited email or other mass electronic mailing; or

   6. IRC clients, bots, servers.

2. Removal of content:  Umbrellar exercises no control whatsoever over the content of the information passing through Umbrellar's servers or transmitted or stored using the Services and does not monitor its customers' websites or use of Services.  Umbrellar may remove or suspend any content or information the Customer stores or publishes using the Services ("Content"), or suspend any Goods or Services supplied to the Customer, if Umbrellar:

   1. receives a complaint alleging that the Content is defamatory, infringing, threatening, harassing, obscene or breaches applicable laws (including the Harmful Digital Communications Act 2015); or

   2. is required to do so under applicable laws; or

   3. otherwise considers (acting reasonably) that the Content breaches this Agreement or applicable laws. 

Umbrellar will use reasonable endeavours to notify the Customer if it removes the Customer's Content pursuant to this Agreement, using the billing contact details provided by the Customer from time to time.  The Customer will have the right to respond to any complaint made to, or decision taken by, Umbrellar.  If Umbrellar has removed Content as a result of a third-party complaint, the Customer's right to respond creates no obligation on Umbrellar to reinstate the Content.  Umbrellar will not be liable to pay any refund of service charges if it takes any action under this clause 3.3, nor shall it be liable for any damages, costs, harm or loss suffered as a result of any actions taken hereunder. 

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4 Account Management

1. Account information: The Customer must maintain the confidentiality of the Customer's user name, login, password, and any other account information and/or identifier provided to the Customer in relation to the Services. 

2. Use of account: 

   1. System accounts cannot be transferred or used by anyone other than the Customer. The Customer accepts complete responsibility for all use of its account and of the Customer's identifier(s), and Umbrellar is entitled to rely entirely upon use of any password or other identifier as evidence of the Customer's identity and authority.

   2. No more than one login session may be used at any time by the Customer or any system account. If the Customer has multiple accounts, the Customer is limited to one login session per system account at any time. User programs may be run only during login sessions.

3. Deletion of Customer data:  The Customer agrees that Umbrellar may delete all data, files or other information that is stored in the Customer's account if the Customer's account with Umbrellar is terminated, for any reason, by either Umbrellar or the Customer.  It is the Customer's responsibility to back-up and maintain any data, files and other content or information stored in the Customer's account or using the Services. 

5 Information

1. Ownership: The Customer shall at all times retain ownership of the Customer Information and Umbrellar shall at all times retain ownership of the Umbrellar Information, including for the avoidance of doubt, Umbrellar's Intellectual Property.

2. Customer Representation:  The Customer represents and warrants that it has the necessary rights to the Customer Information and any data, software, programmes or services that it uses from time to time in connection with its access to or use of Goods or Services supplied by Umbrellar.

3. Use: Customer and Umbrellar may only use each other's Confidential Information in relation to the use, provision and performance of the Goods and Services. Each party must use their best endeavours to keep the other party's Confidential Information secure and at all times confidential.

1. Disclosure:

   1. No party shall disclose any of the other party's Confidential Information to any person, and must also ensure their employees, agents, and contractors do not disclose such information, except as required for the proper use and performance of the Goods and Services, and then on a confidential basis.

   2. The parties will immediately inform the other if they become aware or suspect there has or could be an unauthorised disclosure of Confidential Information, or they are required by law to disclose it.

2. Expiry/termination: Upon the expiry or termination of the Agreement, the parties will either return or destroy each other's Confidential Information (at the option of the owner) and all copies of it, other than information to be retained for audit or regulatory purposes.

3. Publication of information:

   1. The Customer is responsible for all information and material transmitted, distributed or accessed by them.

   2. Umbrellar does not check, monitor or vet any information transmitted, distributed or made available through the servers and networks provided or access as part of the Services. The Customer engages in these activities at its own risk.

4. Joint promotion: the Customer permits Umbrellar to publicise the business relationship between it and Umbrellar for marketing and promotional purposes, excluding confidential and commercial terms relating to the particular Goods and Services provided to the Customer.

5. IP addresses: Umbrellar retains control and ownership of all IP numbers and addresses that may be assigned to the Customer, and Umbrellar may at any time change or remove any IP numbers or addresses.

6 Liability

1. Provision of Services: Umbrellar shall not be liable for any interruption or delay in the provision of any Goods or Services as a consequence of:

   1. any act or omission of the Customer or any third party, including any of the Customer's employees, contractors or agents, any internet service provider or any other utility provider (such as power and telephone companies); or

   2. any cause reasonably beyond Umbrellar's control (Force Majeure) including without limitation fire, earthquake, volcanic eruption, tornado, lightening, flood, storm, any other act god, burglary or vandalism.

2. Limitation on liability:

   1. Umbrellar shall not be liable to the Customer, whether in contract, tort (including negligence) or otherwise, for loss of profits, business, revenue, goodwill, opportunity, loss of data or any other form of indirect or consequential loss or damage.

   2. To the maximum extent permitted by law, Umbrellar's total liability under the Agreement whether in contract, tort (including negligence) or otherwise, is limited to an amount equal to the total fees and charges paid or payable for the applicable Goods or Service giving rise to such liability, in the first 6-month period of the value of the specific SoW or Proposal.

3. Implied warranties:

   1. The Customer acknowledges that where the Goods or Services are being provided for business purposes or in trade, the provisions of the Consumer Guarantees Act 1993 are expressly excluded.

   2. All terms, conditions, guarantees or warranties (including implied warranties as to merchantable quality and fitness for purpose), which may be implied into the Agreement are excluded to the maximum extent permitted by law. If legislation implies any such term, condition, guarantee or warranty into the Agreement, and such legislation does not permit the exclusion or modification of it, Umbrellar's liability for any breach is limited, to the maximum extent permitted by law, and at its option, to:

i. replacing the Goods or paying another person acceptable to

Umbrellar to provide similar Goods; or

ii. repairing the Goods; re-performing the Services; or

paying another person acceptable to Umbrellar to re-perform the Services.

7 Indemnity

1. The Customer indemnifies and holds Umbrellar harmless, to the fullest extent permitted by law, against all costs, expenses (including all legal costs and expenses on a solicitor/own client basis and Taxes), losses and other liability sustained or incurred by Umbrellar, and against any claims made or proceedings brought against Umbrellar as a result of:

1. a breach of these General Terms, any specific Service Description or any software license by the Customer, or any of the Customer's employees, agents, contractors, customers, clients, or any other person for whom the

Customer is responsible;

1. any security breach, attack or error caused or made by the Customer or its employees, agents, contractors, customers, clients, or any other person for whom the Customer is responsible;

2. any other act or omission by the Customer, or by any of the Customer's employees, agents, contractors, customers or clients, or any other person for whom the Customer is responsible, including any breach or violation of any law; and

3. any fault or failure of, or damage to, any of the Customer's property located at Umbrellar's premises.

The Customer shall pay to Umbrellar upon demand, the amount (including all legal costs and expenses on a solicitor/own client basis) which Umbrellar certifies as being required to compensate Umbrellar for the cost, loss, expense or liability it has incurred.

8 Suspension

1. Suspension: Umbrellar may from time to time, without notice, suspend a Service, or disconnect or deny the Customer access to any Goods or Services:

   1. if the Customer fails to comply with any provision of the Agreement or any software licence, including any failure to pay any charge or other amount payable to Umbrellar within 10 Business Days after the due date for payment, until the breach or failure is remedied to Umbrellar's satisfaction. The Customer shall continue to pay all charges and other amounts payable for the Goods and Services during the period of suspension;

   2. if Umbrellar believes suspension is necessary to preserve or protect any person or property, including the information or property of another customer;

   3. or suspension is required by law; or

   4. in accordance with clause 3.3 of these General Terms.

2. Notice: Umbrellar will endeavour to give the Customer at least two Business Days prior notice by email if it intends suspending the Goods or Services due to charges or other amount being overdue.

9 Termination

1. Notice: Unless the Goods and Services are to be provided for a fixed term, the Agreement may be terminated by either the Customer or Umbrellar giving the other at least 30 days' prior written notice unless service are selfserved/decommissioned by the Customer.

2. Termination for breach: Umbrellar may terminate the Agreement immediately upon written notice to the Customer if:

   1. the Customer fails to pay any amount owing to Umbrellar on the due date for payment;

   2. the Customer breaches any provision of the Agreement or any software license, and in Umbrellar's opinion such breach is not capable of remedy, or if in Umbrellar's opinion it is capable of remedy, the Customer fails to remedy the breach within seven Business Days after receiving written notice of the breach from Umbrellar;

   3. Umbrellar is instructed to do so by any law enforcement or government agency;

   4. the Customer ceases or threatens to cease to conduct its business, or disposes of, or threatens, or agrees to dispose of, all or a substantial part its assets;

   5. A receiver, administrator or similar official is appointed in respect of the

Customer or its assets;

1. the Customer is unable to pay its debts as they fall due or is deemed to be so under any law;

2. the Customer stops or suspends payment of any of its indebtedness or threatens to do so, or begins negotiations or takes proceedings to reschedule any of its indebtedness;

3. Umbrellar is unable to provide the Services for a period exceeding one week due to a Force Majeure; or

4. any other event occurs which, in Umbrellar's opinion, may have a material adverse effect on the Customer's ability or willingness to comply with the Agreement.

1. Consequences of termination: Upon termination pursuant to this clause 9, the Customer will:

   1. immediately pay to Umbrellar all outstanding amounts, and all other amounts payable by the Customer under the Agreement, including interest and Umbrellar's enforcement costs and expenses (including legal costs and expenses on a solicitor/own client basis);

   2. where Goods or Services were to be supplied to the Customer for a specified period, the Customer will immediately pay to Umbrellar all amounts that would have been payable by the Customer up to the expiry of that period; and

   3. immediately return to Umbrellar, all of Umbrellar's equipment, property and all Umbrellar Information.

2. Return of Customer property: If applicable, and if requested by the Customer, Umbrellar will return all the Customer's property, equipment and Customer Information in Umbrellar's possession or control to the Customer.

3. Upon receipt of a termination request, Umbrellar will proceed to close the Customer’s Account unless there are any active VMs or other active Service options. If active VMs or other Service options are running within the Customer’s Account, and the Customer has the ability to delete VMs or Service options, Umbrellar will send the Customer a confirmation request with Account closing instructions. Umbrellar will not close the Customer’s Account until Umbrellar receives a confirmation from the Customer that all required closing activities are completed from the Customer. Upon receipt of such confirmation Umbrellar will proceed to close the Account. The Customer understands that charges continue to accrue for all active VMs and other active Service options until the Customer’s Account is closed. The Customer remains responsible to Umbrellar for all charges incurred through the effective date of termination and any applicable termination charges. 

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10 Changes

10.1 Agreement and Services Changes

Umbrellar may from time to time add new Services or options, or in its reasonable discretion, change Agreement terms or change or withdraw existing Services or options, in whole or in part as set forth below. Notice will be provided in accordance with clause 9 (Termination), unless otherwise stated.

1. Umbrellar may change the computing environment used to provide the Service at any time without notice, provided the change does not degrade the Service functionality or security features.

2. For changes to existing Services or options described in the Service Descriptions, Umbrellar will notify the Customer of any new or changed Services and the effective date of such by providing notice directly to a Customer Representative using current information in the Customer’s Account.

3. For any withdrawal of Services, or for any change in Agreement terms that affects existing Services, the change will be effective on the later of i) 90 days after the date of the notice; ii) the specified effective date; or iii) as may otherwise be specified.

4. For withdrawal of the Service in its entirety, Umbrellar will provide the Customer with ninetyghty (90) days' notice.

10.2 Acceptance of Changes

The Customer acknowledges its agreement to any of the above changes by i) continuing to use or ordering Services after the effective date of the change, ii) allowing Services to renew after receipt of the change notice; or iii) by signing (in writing or electronically, where permitted) an applicable revised Agreement or other change authorisation mechanism Umbrellar may provide (such as on-line acceptance).

If the Customer does not accept a change, prior to the change effective date, the Customer is responsible for i) discontinuing use of affected Services prior to the effective date of the change or ii) providing Umbrellar with written notice of its intent not to renew at least thirty days prior to a renewal date.

If Customer does not discontinue use of affected Services prior to the effective date of the change or fails to provide such notice of the Customers intent not to renew, and there is a change in the recurring or usage charges, the new charges will apply from the effective date and the Customer agrees to pay such new charges.

11 General

1. Variation: Umbrellar may change, amend or replace these General Terms at any time, provided that such changed, amended or new General Terms will not take effect until one month after Umbrellar gives the Customer written notice of it.

2. Survival: Clauses 2.1, 2.5, 2.8, 5, 6, and 7 survive the termination or expiry of the Agreement.

3. Notices: Each party will give any required notice to the other party at the physical or email address last known to the party giving notice. Each notice will be deemed to be effective if, delivered by hand, immediately, if delivered by post, 3 days after it was posted, and if sent by email, when successfully sent from the sender's email.

4. Privacy/use of information: Notwithstanding clause 5, Umbrellar may collect and disclose personal and credit information about the Customer (including the Customer's account information and information about any Customer defaults) to debt collection agencies, credit reporting agencies, Umbrellar's lawyers and accountants, and to any person with which Umbrellar does business, for the following purposes:

   1. if Umbrellar is required to disclose such information to any government or law enforcement agency, or otherwise by law;

   2. obtaining a credit report or other information about the Customer to decide whether to provide Goods or Services to them, to manage the Customer's account with Umbrellar, and/or to recover any amounts payable by the Customer, including in relation to any enforcement or Court action or proceedings;

   3. to provide the Customer with offers or information of other goods or services Umbrellar, or any of those above persons may be able to provide to the Customer, or for other marketing purposes, unless the Customer tells Umbrellar not to in writing, and the Customer authorises those persons to provide such information to Umbrellar.

5. The Customer acknowledges that information disclosed to credit reporting agencies may be disclosed by them to other third parties as part of their collection and credit reporting services to help those third parties to decide whether to provide goods, services or credit to the Customer or to recover money the Customer owes them.

6. Assignment:

   1. The Customer must not assign any of its rights or obligations under the Agreement without the prior written consent of Umbrellar. Umbrellar may assign its rights and obligations under the Agreement without the Customer's consent.

   2. Any change in the effective control or management of the Customer or any parent company of the Customer, shall be deemed to be an assignment requiring the prior written consent of Umbrellar, which consent will not be unreasonably withheld.

7. Waiver: No waiver or breach of, or failure to enforce, any provision of, the Agreement will in any way limit the right of Umbrellar to enforce and compel strict compliance with the provisions of such Agreement.

8. Entire agreement: The Agreement constitutes the entire agreement between the parties as to its subject matter, and to the maximum extent permitted by law, supersedes all previous agreements and understandings on the subject matter.

9. Governing law: The laws of New Zealand govern the Agreement.

12 Service Provider Agreements and Licenses

The Customer agrees and acknowledges that: 

1. all Services are supplied by the applicable Service Provider(s) and that, as such, they are provided to the Customer subject to the terms and conditions of any terms of use or other agreement(s) between the Customer and the relevant Service Provider(s). The Customer shall at all times comply with the terms of any such agreement(s); and

2. the Customer's right to use or access Services are limited in nature, in accordance with the terms of applicable EULAs, terms of use or other agreements prescribed by the relevant Service Provider(s), and that all title and intellectual property in the Services remain owned by the relevant Service Provider or their licensor(s).Nothing in this Agreement, or in the use of such Services by the Customers, is intended to transfer to the Customer any right or title to the Services or any intellectual property rights therein.

3. Without limiting clause 11a and 11b, the Customer shall (if required) enter into a Microsoft Cloud Agreement with Microsoft prior to the processing by Umbrellar of any Orders relating to Microsoft Services pursuant to this Agreement, and furthermore warrants that it shall fully comply with the Microsoft Cloud Agreement at all times during the term of this Agreement. 

13 Data Privacy and Confidentiality  

The Customer agrees and acknowledges that Umbrellar may collect personal information relating to the Customer and End Customers for the sole purposes of performing its obligations under this Agreement and for monitoring and verifying compliance with any use restrictions applicable to the Services.  The Customer shall ensure that, in its agreements with End Customers, End Customers are notified of such use of personal information by third party suppliers such as Umbrellar and obtain those End Customers' consent to such use. Umbrellar will not make this information available to any third parties, or use the information for marketing or any other purposes.

The Customer further acknowledges that the Services may involve the use, hosting, storage or other processing ("processing") by Service Providers of personal information held by or relating to End Customers, and that such processing may take place in jurisdictions other than that in which the End Customer is established. The Customer shall ensure that the End Customer is aware of and agrees to such processing by the Service Provider in accordance with any Data Processing Agreement or similar terms notified to the Customer by the Service Provider from time to time.  

To the extent that Umbrellar has access to personal information relating to the Customer and its End Customers that is covered by the GDPR (EU) and New Zealand privacy laws, Umbrellar agrees that it shall:

1. Only access or handle personal information supplied or made available by the Customer and/or End Customers for the purpose of selling the Services under this Agreement and related purposes (such as invoicing), and for no other purpose;

2. If accessing or handling personal information supplied or made available by the Customer and/or End Customers, only act on the written instructions of the

Customer (unless required by law to act without such instructions);

1. Ensure that any personnel processing the Customer’s and/or End Customers’ data are subject to a duty of confidence prohibiting any disclosure or use of the personal information (except for the purpose of providing the Services under this

Agreement);

1. Take appropriate measures to ensure the security of processing of the

Customer’s and End Customers’ data;

1. Not engage any third parties to provide any of the duties or services under this Agreement, and not sub-contract any aspect of this Agreement, provided that this shall not prevent or interfere with the provision of Services by third party Service

Providers;

1. Assist the Customer and its End Customers in providing subject access and allowing data subjects to exercise their rights under the GDPR (to the extent the Customer or End Customer can demonstrate that it is applicable) and other privacy laws;

2. Assist the Customer and its End Customers in meeting their GDPR (to the extent the Customer or End Customer can demonstrate that it is applicable) and other privacy obligations in relation to the security of processing, the notification of personal data breaches and data protection impact assessments;

3. Delete or return all personal data to the Customer at the end of the Agreement, except where Umbrellar needs to retain it for purposes connected with its rights and obligations under this Agreement (for example, enforcing payment of invoices); and

4. To the extent the Customer or End Customer can demonstrate that the GDPR is applicable, submit to audits and inspections, and provide the Customer with all information necessary to demonstrate compliance with Article 28 of the GDPR.

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13.1 Confidentiality

Umbrellar may, in the course of performing its obligations under this Agreement, have access to information and data supplied or made available by the Customer and End Customers, including confidential Customer and End Customer information, data and analysis, operations, employee information and records, information relating to the design and technology of Customer and End Customers systems, and other financial, technical and commercial information (together, referred to as “Confidential Information”).  Umbrellar shall at all times treat all Confidential Information as confidential and undertakes that it will not (and will ensure that its employees do not) disclose any Confidential Information to any person or entity whatsoever nor use any Confidential Information for any purpose other than for sole performance of this Agreement, without the prior written consent of the Customer. Umbrellar shall not, except as necessary for performance of this Agreement, copy or store any Confidential Information without the prior written consent of the Customer.  This clause shall survive termination of this Agreement and shall continue in perpetuity. Umbrellar shall not be required to comply with this clause 12.1 to the extent that the relevant Confidential Information is:

1. independently developed by Umbrellar;

2. in the public domain through no fault of Umbrellar;

3. disclosed to it by a third party, who has the right to make such disclosure, without an obligation of confidentiality; or

4. required to be disclosed by law or to comply with the rules of any recognised stock exchange, provided that; (A) it provides, to the extent reasonably possible, reasonable advance notice to the Customer of the impending disclosure; and (B) it provides all reasonable assistance in any action taken by the Customer to obtain an order that the information does not have to be disclosed and/or an appropriate protection order or assurance that confidentiality is accorded to the information that is required to be disclosed.

14 DEFINITIONS AND INTERPRETATION

14.1 Definitions

Account – the Client account profile and usage information regarding the Services selected and enabled, including User activities, account management information, User IDs and business contact information.

API – application programming interface Umbrellar provides as Service Components which provide programming code to interface with and utilise the Services, including requesting and ordering Services options and Service Components, which bypass the user interface.

Business As Usual Changes or “BAU Changes” means changes that are categorised under Operational Change Management as having a low impact or low risk of implementation failure.

Business Day: any day that is not a Saturday, Sunday or statutory public holiday in Auckland, New Zealand.

Business Hours: 8.30 am to 5.30 pm from Monday to Friday, except statutory public holidays in Auckland, New Zealand.

Change Advisory Board (“CAB”) means the group made up of representatives from both Parties who assume responsibility for Operational Change Management.  The CAB shall comprise each Party's Change Manager and such other representative(s) as each Party's Change Manager may nominate from time to time.

Change Manager means a Party’s representative who will coordinate Operational Change Management including relevant Service affecting change requests and approve changes.

Confidential Information: Customer Information and Umbrellar Information other than information that is or becomes:

1. part of the public domain (other than through any breach of confidentiality by a party);

2. lawfully known to the recipient on a non-confidential basis before being disclosed;

3. available to the recipient from another person who is in possession of it lawfully and can disclose it on a non-confidential basis; or

4. required to be disclosed by law.

Content – all data, software, Solutions, products, prototypes technical data and information, including, without limitation, any hypertext markup language files, scripts, programs, recordings, sound, music, graphics, images, applets, or servlets that are created, installed, uploaded, or transferred in connection with the Services by the Customer, Users, or Solution Recipients.

Contract Period means the Minimum Period plus any renewal period on expiry of the Minimum Period 

CPU Utilisation means the usage of a CPU Core measured as a percentage of the CPU Core capacity.

Customer Applications means software applications provided by the Customer that are not provided or managed by Umbrellar.

Customer High Risk Activity means a Customer activity that in Umbrellar’s reasonable opinion may be high risk, or have a major impact, or cause interruption to the Umbrellar Infrastructure or Umbrellar’s provision of the Service 

Customer Information: all information, content and data about the Customer, its business and its clients which is disclosed to, or acquired by, Umbrellar in the performance of the Services, and includes all data stored on Umbrellar's servers.

Customer Security Policy means the Customer’s policy for the security of their network, systems and Users.  

Customer Specific Network means the connectivity, including firewalls and load balancing, between the Server Instances forming part of the Service delivering secure discrete separation.

Data Centre – the facility which Umbrellar provides the Services from and where Service Components are hosted and made available for Customer use.

Disk means a physical media on which data can be stored.

Disk Utilisation means the volume of disk space used, measured against the Customer’s pre-allocated usable disk space. 

Domain Name means a name registered with an Internet registration authority for use as part of a URL.

DNS Service means the “Domain Name Servers” delivered as part of the Service.

Enabling Software – any Services Component software (such as programs, enabling code, utilities, client software, and plug-ins) and documentation Umbrellar provides to Client to facilitate Client's access to and use of the Services.

End of Life means the point at which Umbrellar withdraws an Operating System or a version of an Operating System from the Service.  This may be independent of when the Licensor withdraws an Operating System or version of an Operating System.

Enterprise – any legal entity (such as a corporation) and the subsidiaries it owns by more than 50 percent.

Entitlements –the Authorisations and business parameters relating to the Customer’s use of the Services that are set forth in the Order Form and are used in part to determine the fees paid by the Customer for the Services (e.g. users, transactions, storage).

Firewall means a device or software service that is designed to block unauthorised access, whilst allowing authorised access to the Service.

General Terms: these general terms and conditions as amended from time to time and includes any replacement terms.

Image – a software image file containing the functionality of the software program(s) that Umbrellar makes available as part of the Services. An Image contains an operating system image by itself or in conjunction with an Umbrellar Image or Third-Party Image.

Incident means any single event that is not part of the normal operation of the Service and that causes, or may cause, an interruption to, or a reduction in, the quality of the Service.

‘Incident’ is determined as an event that has, or has the potential to, result in degraded or impacted service.

Internet – the public worldwide network of TCP/IP-based networks.

Internet Connectivity means connectivity between the Internet and the Service. 

ISV - Independent Software Provider

Licensor means the owner or licensor of the Operating System. 

MACD’s – Moves, Adds, Changes & Delete type requests logged via support channels.

Marketplace – The image library of ISV and image distributions available on the Umbrellar Cloud and Microsoft Azure. 

Normal Change means a modification to one or more components of the Service

Operating System means the operating systems relating to the Server Instances forming part of the Service as set out in the proposal.

Operational Change Management means the activities around submission, agreement and implementation of an operational change to the Service, excluding BAU Changes.

Operational Service Date or OSD means the date on which Umbrellar first makes the Service available to the Customer.  Where Umbrellar makes only part of the Service available to the Customer, an OSD shall apply to that part of the Service only.

Order Form means the Proposal.

Pay As You Go– a billing model for Umbrellar services.

Proposal means the customer requirements document which specifies the details and charges for the Service and which has been completed and signed by Umbrellar and the Customer.

RAM means the memory available to a Server Instance

RAM Utilisation means the overall utilisation of memory assigned to the Server Instance.

Rate Card means the document provided by Umbrellar which sets out the Charges for additional services available to the Customer that can be ordered under this Service Schedule. This is usually included in the Proposal 

Server Instance means an instance of an Operating System with a defined number of CPU Cores, RAM and Disk.

Service means the Umbrellar Managed Compute service and includes the Initial Services and any optional services set out in the proposal.

Service Component Software – software functionality that Umbrellar makes available as a Service Component.

Services Component(s) – the hardware, software, Service Component Software, APIs, tools, and any documentation (electronic or otherwise) Umbrellar utilises to provide the infrastructure, and functionality of the Services or that Umbrellar makes available as part of the Services.

Service Description means definition of what a service provides and how it is accessed and used. A service description includes descriptions of the functional and non-functional properties of the service, service interfaces, and the legal and technical constraints or rules for its usage.

Service Desk means the service desk provided by Umbrellar as part of the Service that will be the initial point of contact for the Customer to report an Incident or make a Service Request.

Service Level Agreement or “SLA” means the agreed level of service for delivery, availability and Incident resolution as set out in Annex A. 

Service Request means a request for an addition or deletion to the Service, such as a Normal Change.

Solution – Customer created software application solution the Customer makes available to Solution Recipients.

Solution Recipients – means any entities or individuals to whom the Customer provides access to a VM or product or services that the Customer offers.

Storage means the disk space associated with a Server Instance.

Support means all labour provided by Umbrellar other than labour that is not related to Umbrellar's network or hardware, such as labour provided in relation to the Customer's operating system or software. 

Third Party Image – a software image file containing the functionality of selected thirdparty software program(s) that Umbrellar makes available as part of the Services. 

Third Party Incidents means any single event that is not part of the normal operation of a service provided by a party other than Umbrellar, that causes, or may cause, an interruption to, or a reduction in, the quality of the service as defined by the third party

Third Party Information means data, information, video, photographs, software and any other materials (in whatever form) not owned or generated by or on behalf of the Customer, including information belonging to an authorised User which is not Customer Information, published or otherwise made available by the Customer using the Service.

Umbrellar Group: means Umbrellar Limited and any of its parent or subsidiaries as may change from time to time.

Umbrellar Information: all information, content and data about Umbrellar, its business and its other customers, all information content and data about the business and clients of Umbrellar's other customers, Umbrellar's Intellectual Property, and all information, content and data that is developed by Umbrellar while providing the Goods and Services.

Umbrellar Infrastructure means the hardware, software and Operating Systems used by Umbrellar to provide the Service. For clarity this does not include the any applications.

Umbrellar's Intellectual Property: all intellectual property in and associated with the business of Umbrellar and its other customers, including all trade names, trade and service marks, discoveries, improvements, systems, specifications, manuals, trade secrets, know-how, procedures, computer software and programs (whether denominated software, firmware or otherwise), formulae, designs, writings, diagrams, logos, domain names, websites, drawings, copyright materials and the benefit of any applications or registrations in respect of the above and any other intellectual property and industrial property whatsoever and howsoever recorded or stored (if at all).

User means anyone who is permitted by the Customer to use or access the Service purchased by the Customer.

User Acceptance Test(s) /Handover means the test the customer wishes to carry out to confirm the deployed services is correct and fit for purpose. After a period of 5 days it is assumed these tests have been carried out and service has completed technical handover.

User ID means any IDs, user names, personal identification numbers and passwords in relation to the Customer’s access to the Operating System.

VM – a virtual machine instance that Umbrellar makes available to Client as part of the Services consisting of virtual computer processing unit(s) ("CPUs"), virtual memory and virtual local storage.

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