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End User Licence Agreement

General Terms & Conditions

Introduction & Acceptance
1. NV Play has developed and owns the Software.
2. These General Terms and Conditions (General Terms) apply to your use of the Software and any Services that we make available or provide to you.
3. Please read these General Terms carefully as they, along with the Engagement Agreement we have provided to you, form the agreement governing your use of the Software and Services (the Agreement). By using or accessing the Software or receiving any Services you are deemed to have read and agreed to be bound by the Agreement including these General Terms.
Definitions
1. The definitions in this clause apply in this Agreement.
  
  Applicable Data Protection Laws: means all applicable data protection and privacy laws and regulations in any jurisdiction to which the parties are subject in connection with this Agreement, including, where relevant, the Digital Personal Data Protection Act, 2023 (India) and any rules or regulations made under it.
  
  Business Day: a day other than a Saturday or Sunday where banks are generally open for business in Christchurch, New Zealand.
  
  Data Processing Agreement: the NV Play Data Processing Agreement forming Appendix 1 to this Agreement, as updated from time to time and available at www.nvplay.com/legal/data-processing-agreement.
  
  Engagement Agreement: Engagement Agreement: means a further form of agreement entered into between NV Play and the Client for the provision of Software and/or Services which will take the form of an Invoice, Software Licence Agreement, Support Agreement, Statement of Work, online order form, sign-up page, in-product purchase flow or similar, depending on the requirements of the Client.
  
  Fees: means the fees payable by the Client to NV Play for the licensing of the Software and provision of the Services as set out in the applicable Engagement Agreement and varied from time to time in accordance with clause 8.6.
  
  Free Trial: any limited period of time during which NV Play agrees to provide the Software and/or Services to the Client without charge, as described in an Engagement Agreement or during any online sign-up or trial registration process.
  
  Force Majeure Event: means anything outside the reasonable control of a Party, including acts of God, strikes by employees of a third party, acts or omissions (including laws, regulations, disapprovals or failures to approve) of any government or government agency and includes (unless expressly stated otherwise by other terms of the Agreement):
  1. unavoidable accident, explosion, public mains electrical supply failure, or nuclear accident;
  2. sabotage, riot, civil disturbance, insurrection, epidemic, national emergency (whether in fact or law) or act of war (whether declared or not);
  3. requirement or restriction of, or failure to act by, any government, semi-governmental or judicial entity;
  4. Service Providers’, or any other third party’s acts or omissions (including failure to deliver) outside of NV Play’s reasonable control; and
  5. any other similar cause beyond the reasonable control of the Party concerned.
  A Force Majeure Event does not include:
  1. any event which the affected party could have avoided or overcome by exercising a standard of reasonable care at a reasonable cost;
  2. a lack of funds for any reason or any other inability to pay; or
  3. strike, lockout, work stoppage or other labour hindrance by employees of a Party or its Related Companies unless the strike is part of an industry wide campaign which does not arise out of a dispute between that Party or Related Company and its employees.
  General Terms: has the meaning given to that term in clause 1.2.
  
  Good Industry Practice: means, in relation to a particular activity, the exercise of a degree of skill, care and diligence which would reasonably be expected from a skilled and experienced person engaged in New Zealand in the same activity, under the same or similar circumstances.
  
  Input Material: all documents, information, data and materials provided by the Client to NV Play relating to the Services or inputted by the Client and the Users into the Software including computer programs, data, reports and specifications, and the Marks.
  
  Insolvency Event: occurs in respect of a party when it: (i) becomes unable to pay its debts as and when they fall due, makes an arrangement or composition with its creditors or goes into liquidation; (ii) is the subject of the commencement of any bankruptcy proceedings, the passing of a resolution for its winding up, the giving of a notice of appointment or intention to appoint an administrator or liquidator (which is not dismissed, withdrawn or set aside within 14 days after presentation); or (iii) has an administrator, an administrative receiver or trustee appointed over all or any of its assets.
  
  Intellectual Property Rights: all patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same (and the right to apply for any such rights), anywhere in the world.
  
  Invoice Date: is as set out in the applicable Engagement Agreement.
  
  Licence End Date :is as set out in the applicable Engagement Agreement.
  
  Licence Start Date: is as set out in the applicable Engagement Agreement.
  
  Licence Term: the period the applicable Software is licensed to the Client as set out in the corresponding Engagement Agreement commencing on the Licence Start Date and ending on the Licence End Date, unless this Agreement or the applicable Engagement Agreement is terminated earlier (either as a whole or in relation to the Software only) in accordance with its terms.
  
  Marks: all trade marks, logos and brands (whether registered or unregistered) of the Client.
  
  Major Release: a new release of the Software which is developed and offered for purchase or licence by NV Play which adds such significant functionality that it is a required installation for all users.
  
  Minor Release: a release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software.
  
  Modification: any Major Release or Minor Release of the Software.
  
  Permitted Purpose: is as set out in the applicable Engagement Agreement.
  
  Service Levels: means the service levels and requirements that relate to provision of Services as set out in the applicable Engagement Agreement (if any).
  
  Services: means the services to be supplied by NV Play to the Client as identified in any Engagement Agreement entered into between the parties from time to time.
  
  Services Term: the period the applicable Services are to be supplied to the Client by NV Play as set out in the corresponding Engagement Agreement commencing from the Services Start Date to the Services End Date, unless this Agreement is terminated earlier (either as a whole or in relation to the Services only) in accordance with its terms.
  
  Software: means the software to be licensed by NV Play to the Client as identified in any Engagement Agreement entered into between the parties from time to time, including any Major or Minor Releases to that software.
  
  Specification: means the specification in relation to the Software as identified in any Engagement Agreement entered into between the parties from time to time.
  
  Term: has the meaning given to that term in clause 15.1.
  
  Trial Period: the period of a Free Trial as specified by NV Play or otherwise communicated to the Client.
  
  Users: any individual or organisation designated as a user of the Software by the Client within the scope of the Permitted Purpose of the licenced activities as set out in the applicable Engagement Agreement.
  
  Warranty Period: has the meaning given to in in clause 10.1c).
Interpretation
1. Unless the context otherwise requires:
  1. references to NV Play and the Client include their permitted successors and assigns;
  2. references to statutory provisions include those statutory provisions as amended
    or re-enacted;
  3. another grammatical form of a defined word or expression has a corresponding meaning;
  4. references to any document are references to that document as modified, novated, supplemented, varied or replaced from time to time;
  5. references to persons includes individuals, companies, corporations, partnerships, firms and other entities;
  6. references to the singular include the plural and vice versa; and
  7. references to including or includes shall be deemed to have the words "without limitation" inserted after them.
2. In the case of conflict or ambiguity between any provision contained in: (i) these General Terms; or (ii) any Engagement Agreement, the documentation will be given the following order of precedence:
  1. the Appendices, including the Data Processing Agreement (Appendix 1);
  2. the Engagement Agreement; and
  3. these General Terms.
3. This Agreement is primarily intended for use with business customers. Where the Client is a consumer under Applicable Law, certain provisions of this Agreement may not apply to the extent they are inconsistent with non-excludable statutory consumer rights.
4. In this Agreement, references to something being “in writing” include email and other electronic communications, and references to “signed” or a “signature” include execution by electronic means (including via an electronic signature platform approved by NV Play) and any other method by which a party indicates its acceptance in an online sign-up, order or in-product purchase process.
Licensing of Software and Ordering Services
1. This Agreement sets out the terms and conditions that will apply to the provision by NV Play of the Software and Services to the Client.
2. These General Terms will apply to the provision of all Software and Services by NV Play to the Client subject to any variations to these General Terms set out in any Engagement Agreement. Any such variations will only apply to the Software and Services that the Engagement Agreement relates.
3. Each Engagement Agreement shall constitute a separate binding agreement between the parties and the General Terms shall be deemed to be incorporated in and apply to the Engagement Agreement. The waiver or exercise of any right or remedy under one Engagement Agreement will not affect any other
4. Upon execution of an Engagement Agreement by both parties, NV Play will deliver the Software or Services (as the case may be) as set out in, and in accordance with, such Engagement Agreement and these General Terms.
5. NV Play may from time to time offer access to the Software and/or Services on a Free Trial basis for the Trial Period. Unless NV Play agrees otherwise in writing: (a) a Free Trial is provided solely for evaluation of the Software and/or Services; (b) NV Play may suspend or terminate a Free Trial at any time; (c) at the end of the Trial Period the Client’s access to the Software and/or Services will automatically cease unless the Client has purchased a subscription or other paid Engagement Agreement; and (d) during any Trial Period the terms of this Agreement (including, without limitation, clauses 6, 9, 11, 12 and 14) apply to the Client’s use of the Software and Services.
Software Delivery
1. On the Licence Start Date, NV Play shall make available to the Client the Software in accordance with the provisions of the applicable Engagement Agreement.
2. The Client acknowledges that NV Play may make available Modifications to the Client from time to time. In the event that a Modification is made available to the Client and provided that the Modification has not been designated as optional in writing by NV Play, the Client will promptly undertake all required actions to update any locally stored versions of the Software with the Modification. The Client acknowledges that until such update occurs, the Software may not be available for use by the Client.
Software Licence and Duration
1. In consideration of the Client's obligation to pay the Fee(s) under clause 8.1, NV Play grants to the Client a non-exclusive, worldwide licence for the Users to use the Software (which for the purposes of this clause includes any Modification) and any Deliverables during the Licence Term for the Permitted Purpose.
2. In relation to scope of use:
  1. for the purposes of clause 6.1 above, "use" of the Software shall be restricted to use of the Software in object code form by the Client and Users, but shall include any act which is reasonably incidental to such use, including the creation of as many copies of the Software as may be necessary to enable use of the Software in accordance with this clause 6.2a); and
  2. except as stated in clause 6.2a), the Client shall have no right to copy, adapt, reverse engineer, decompile, disassemble or modify the Software in whole or in part.
3. The Client shall not:
  1. sub-license the Software in whole or in part except that the Client may sub-license the use of the Software to Users (provided such sub-licence terminates on expiry or termination of the applicable Engagement Agreement and that the Client remain at all times liable for the actions of any sub-licensee);
  2. use the Software other than for the Permitted Purpose;
  3. allow the Software to become the subject of any charge, lien or encumbrance; or
  4. deal with the Software in any manner not permitted by this Agreement,
  without the prior written consent of NV Play.
Services
1. During the Services Term, NV Play shall perform the Services in accordance with Good Industry Practice and at all times in accordance with the terms of this Agreement (including to any applicable Specifications and by any due dates as set out in the applicable Engagement Agreement) and all applicable laws and regulations.
2. NV Play shall:
  1. ensure that its personnel comply with the Client’s safety and security standards and site procedures and any other lawful guidelines or instructions issued by the Client from time to time;
  2. have no right or authority, express or implied, to commit or otherwise obligate the Client any manner whatsoever except to the extent specifically agreed in writing by the Client.
3. NV Play shall ensure that its personnel performing the Services shall be suitably experienced and qualified.
Fees
1. The Fees are to be paid by the Client to NV Play in accordance with the provisions of this clause 8 in consideration of NV Play licensing the Software and providing the Services to the Client. The currency of the Fees payable will be set out in the applicable Engagement Agreement.
2. NV Play shall invoice the Client for the relevant Fees on the Invoice Date(s). The Client shall pay each valid invoice from NV Play on or before the 20th of the month following the date of the invoice, unless stipulated otherwise in the applicable Engagement Agreement or during any applicable online order, sign-up or in-product purchase process.
3. If the Client fails to pay any invoice by the due date (other than in the case of bona fide dispute), NV Play may (without prejudice to any other rights and remedies available to it) charge interest on the unpaid amount (after as well as before any judgment) from the due date until payment is received (both dates inclusive) at an annual rate of 12% compounding on a daily basis.
4. All sums payable under this Agreement are exclusive of any tax payable on such amounts (including any goods and services tax or value added tax), which, if applicable, shall be charged in accordance with applicable law and paid by the Client. Each party is entirely responsible for compliance with their own tax obligations.
5. The Fees comprise the entire payment to be made by the Client to NV Play in relation to licence of the Software and provision of the Services. Any additional costs and expenses must be approved in writing and in advance by the Client.
6. NV Play may amend the Fees once in any 12 month period by providing notice in writing to the Client.
7. To the extent permitted by Applicable Law, the Client shall pay all Fees and other amounts due under this Agreement in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
Confidentiality and Publicity
1. Each party agrees to, during the Term and thereafter, keep confidential, and shall not use for its own purposes (other than implementation of this Agreement) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including trade secrets, information of commercial value, and the terms of this Agreement) which may become known to such party from the other party and which relates to the other party or any of its affiliates, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party (Confidential Information). Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of Confidential Information.
2. NV Play may refer to the Client and this Agreement in a general way in its website, social media channels, publicity, marketing or advertising material without the Client's consent.
3. Each party acknowledges and agrees that, in the event of a breach by either party of its confidentiality obligations under this clause 9, damages may not be a sufficient remedy for the other party. Accordingly, in addition to other remedies, each party shall have the right to seek from a court of competent jurisdiction injunctive relief or specific performance of the other party’s relevant obligations. Any such remedy shall not be deemed to be exclusive or all-inclusive and shall be in addition to any and all other remedies which may be available to the parties at law or in equity
Export
1. Neither party shall export, directly or indirectly, any technical data acquired from the other party under this Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States of America export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
2. Each party undertakes:
  1. contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
  2. if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
Supplier's Warranties
1. NV Play warrants that:
  1. to its actual knowledge, use and/or possession of the Software or any Deliverable, and receipt of the Services, by the Client and/or any User will not infringe the Intellectual Property Rights of any third party;
  2. it shall promptly inform the Client of any material matter which comes to its attention and which may have a detrimental effect on its supply of the Services; and
  3. the Software, any Deliverable and any media on which the Software or any Deliverable is delivered will be free from viruses and other malicious code.
2. Except as expressly set out in this Agreement, all warranties, conditions or other terms implied by statute or common law (including any implied warranties of merchantability, fitness for purpose and non-infringement) are excluded to the fullest extent permitted by law.
3. NV Play does not warrant that the Software or Services will be uninterrupted or error-free, or that any data, statistics, analysis, models or other outputs generated through the Software or Services will be complete, accurate or fit for any particular purpose. The Client is solely responsible for how it uses and relies on any such outputs.
4. The warranties in this clause 11 do not apply to any Free Trial or other free, trial, evaluation or beta access to the Software or Services, which are provided on an “as is” and “as available” basis.
Limitation of Liability
1. Subject to clause 12.3, neither party shall in any circumstances have any liability for any losses or damages which may be suffered by the other, whether the same are suffered directly or indirectly or are immediate or consequential, which fall within any of the following categories:
  1. indirect damage even though that party was aware of the circumstances in which such indirect damage could arise;
  2. loss of profits;
  3. loss of anticipated savings;
  4. loss of business opportunity and management time; or
  5. loss of goodwill.
2. Subject to clause 12.3, the total aggregate liability of each party in any 12 month period, whether in contract, tort (including negligence) or otherwise in connection with this Agreement shall in no circumstances exceed a sum equal to the aggregate Licence Fee(s) paid or payable by the Client under this Agreement in the 12 month period in which the liability first arose. The cap in this clause 12.2 shall not apply to the Client’s obligation to pay the Fees.
3. Notwithstanding any other provision of this Agreement, neither party excludes or limits any liability:
  1. for death or personal injury caused by its negligence, or the negligence of its employees or agents; or
  2. for fraud or fraudulent misrepresentation or the deliberate default or wilful misconduct of that party, its employees or agents or subcontractors.
4. Despite any other provision in this Agreement, neither party will be liable for any failure or delay in complying with any obligation under this Agreement (excluding any payment obligation) if:
  1. the failure or delay arises from a Force Majeure Event; and
  2. the affected party, on becoming aware of the Force Majeure Event, promptly notifies the other party in writing of the nature of, the expected duration of, the obligation(s) affected by, and the steps being taken by that party to mitigate, avoid or remedy the Force Majeure Event; and
  3. the affected party uses its best endeavours to:
    1. mitigate the effects of the Force Majeure Event on that party’s obligations under this Agreement;
    2. perform that party’s obligations which are not affected by the Force Majeure Event; and
    3. perform that party’s obligations under this Agreement on time despite the Force Majeure Event, or that performance of an obligation affected by a Force Majeure Event will be resumed as soon as practicable after the termination or abatement of the Force Majeure Event
5. Nothing in this Agreement is intended to exclude or limit any rights which the Client may have as a consumer under any Applicable Law where such rights cannot lawfully be excluded or limited, and this Agreement shall be read subject to any such law to the extent it applies.
Intellectual Property Rights
1. The parties agree that all Intellectual Property Rights subsisting in the Software and Services are owned by NV Play or its third party licensees as the case may be.
2. The Client grants to NV Play a non-exclusive, royalty free, worldwide licence during the Term to reproduce and use the Marks: (a) in connection with the delivery of the Software and the performance of the Services; and (b) in NV Play’s marketing, publicity and promotional materials (including on NV Play’s websites and in pitch materials) to identify the Client as a customer of NV Play. NV Play will use the Marks in accordance with any reasonable brand guidelines provided by the Client.
3. If the Client becomes aware of a claim or likely claim that the Intellectual Property Rights of NV Play has infringed any of the Intellectual Property Rights of a third party (IP Claim), then:
  1. the Client will promptly notify NV Play in writing accordingly; and
  2. the Client will provide such assistance (at NV Play’s cost) as is reasonably necessary to allow NV Play to resolve or settle the IP Claim.
4. The Client will not, at any time, directly or indirectly challenge or contest (nor assist any other person to challenge or contest) NV Play’s right and title to, and interest in, any Intellectual Property Rights subsisting in the Software or Services (which for the avoidance of doubt does not include the Input Material).
5. The Client will do all things and sign all documents to assist NV Play in obtaining any rights or registrations which NV Play considers (at its sole discretion) are required or desirable in relation to any new Intellectual Property Rights that are developed or created by NV Play in connection with the Services or Software.
6. To the extent permitted by Applicable Law, and other than where the Client is acting as a consumer under Applicable Law, the Client indemnifies and holds harmless NV Play and its officers, employees and contractors from and against any and all claims, losses, damages, costs and expenses (including reasonable legal fees) arising out of or in connection with: (a) any allegation that the Input Material, or the use of the Input Material by NV Play in accordance with this Agreement, infringes the rights (including Intellectual Property Rights or privacy rights) of any third party; (b) any breach by the Client of clause 14.4; or (c) any use of the Software or Services by the Client or any User in breach of this Agreement or Applicable Law.
Data Usage, Access and Ownership
1. Subject to the rights granted under clause 14.2, NV Play acknowledges that the Input Material is the property of the Client.
2. NV Play may during and following the end of the Term, subject to any applicable laws and regulations (including any data protection laws), retain and use a copy of the Input Materials and any other data related to the Software or Services for the purposes of accessing, modifying, downloading, transferring, viewing and/or using any data forming part of the Input Material:
  1. as necessary to perform the Services and make available the Software;
  2. to administer, maintain and improve the Services and Software;
  3. for the purposes of aggregating such data for incorporation in statistics and other reports which will be published or otherwise used by NV Play for its internal and external business purposes;
  4. for the purposes of making available to NV Play, any other NV Play clients or any authorised third parties any video or photographic footage, and any statistical data or material, of any players or matches;
  5. for the purposes of incorporating or using such data in any software application (including statistical models, player development programmes, or games) for any purpose including high performance applications or tools.
  6. for the purposes of displaying, distributing or otherwise making available any Input Material, or any derivative works of it, in conjunction with, adjacent to, or otherwise associated with advertising, sponsorship or other promotional content (including where such advertising, sponsorship or other promotional content is for the benefit of NV Play or its partners), provided that NV Play complies with clause 14.3 and does not disclose the Client’s Confidential Information in breach of clause 9.
  7. for the avoidance of doubt, Input Material includes any data, content or materials created, captured, uploaded or generated by or on behalf of the Client or any User during any Free Trial, and references to the “Term” in this clause 14.2 include any Trial Period. The rights granted to NV Play in this clause 14.2 will continue to apply to such Input Material following expiry of any Free Trial, whether or not the Client subsequently enters into any paid Engagement Agreement.
3. NV Play will, in respect of any Input Materials comply at all times with any applicable privacy or data protection legislation and any other applicable laws relevant to its possession or use of any such data.
4. The Client shall comply with the provisions of any applicable privacy or data protection legislation and any other applicable laws in its collection and use of the Input Material. The Client warrants that it has a legitimate interest or has obtained all required consents to enable NV Play to possess, store and use any Input Material in accordance with the terms of this Agreement.
5. The Client acknowledges that all data, information and content held or stored by NV Play, or otherwise forming part of or generated through the Services that is not Input Material is owned by NV Play and that the Client has no right to access or use in any way such data other than as expressly set out in this Agreement.
Term and Termination
1. This Agreement shall commence on the Commencement Date of this Agreement and shall continue until terminated in accordance with the provisions of this clause 15 (Term).
2. Unless otherwise stated in the applicable Engagement Agreement, the term of each Engagement Agreement will, on expiry of the initial term specified in that Engagement Agreement (and each renewal term thereafter), automatically renew for successive periods of twelve (12) months on the same terms and conditions (other than as to Fees, which may be varied in accordance with clause 8.6), unless either party gives the other not less than thirty (30) days’ written notice prior to the end of the then-current term that it does not wish to renew. If the Software or Services provided for in any Engagement Agreement are used or accessed by the Client following the expiry or termination of that Engagement Agreement, and it has not been renewed in accordance with this clause 15.2 or replaced by a new Engagement Agreement, the term of that Engagement Agreement will be deemed to have been renewed for a further period of twelve (12) months from the previous expiry date of the agreement.
3. This Agreement and any Engagement Agreement may be terminated by either party on written notice to the other party if the other party:
  1. has committed a material breach of any of its obligations under an Engagement Agreement and, where that breach is capable of remedy, has failed to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or
  2. suffers an Insolvency Event.
  Termination of this Agreement or an Engagement Agreement will not impact or affect the rights and obligations of the parties under any other Engagement Agreement.
4. Termination of this Agreement or an Engagement Agreement by either party in accordance with this clause 15 shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
5. Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement (including clauses 1, 8, 9, 12, 13, 20, 23 and 25) shall remain in full force and effect.
6. NV Play may suspend the Client’s or any User’s access to the Software or Services (in whole or in part) immediately on notice if: (a) any Fees remain unpaid 14 days after the due date (other than in the case of a bona fide dispute); (b) NV Play reasonably believes that the Client’s or any User’s use of the Software or Services poses a security risk, may adversely impact the Software, Services or systems of NV Play or any third party, or may give rise to a material breach of this Agreement; or (c) NV Play is required to do so by law or by a regulator. NV Play will lift any suspension as soon as reasonably practicable after the relevant issue has been remedied. Any suspension under this clause 15.6 does not limit NV Play’s right to terminate this Agreement or any Engagement Agreement.
Entire Agreement
1. This Agreement and the Data Processing Agreement forming Appendix 1 shall constitute the entire agreement between NV Play and the Client in relation to its subject matter and any other terms, conditions, performance criteria, guarantees or prior representations whatsoever (whether written or oral, and including any quotations or terms and conditions issued by NV Play) shall be of no effect unless expressly incorporated herein. Each party acknowledges that it has not entered into this Agreement in reliance on any statement or representation of the other party except to the extent that such statement or representation has been incorporated in this Agreement. Nothing in this Agreement shall limit or exclude either party’s liability for fraud or fraudulent misrepresentation.
No Assignment
1. The Client may not assign, transfer or burden all or part of its rights under this Agreement or transfer its legal relationship towards NV Play under the Agreement without NV Play’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. NV Play may assign or transfer its rights and obligations under this Agreement without the Client’s consent to: (a) any Related Company; or (b) any third party that acquires all or substantially all of NV Play’s business or assets to which this Agreement relates, provided that NV Play notifies the Client as soon as reasonably practicable.
Waiver
1. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Variation
1. Except as set out in clause 19.2, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
2. Notwithstanding clause 19.1, NV Play may amend these General Terms from time to time by posting an updated version at https://www.nvplay.com/legal/end-user-licence-agreement or by otherwise notifying the Client in writing. Any such amendment will: (a) apply to any new Engagement Agreement entered into after the date of posting or notification; and (b) in the case of an ongoing subscription purchased via an online sign-up or order process, take effect from the start of the next renewal term, provided that NV Play has given the Client at least thirty (30) days’ prior notice. Nothing in this clause 19.2 permits NV Play to unilaterally vary the express commercial terms of any existing Engagement Agreement.
3. NV Play may publish country-specific terms or addenda for certain jurisdictions. Where such terms apply to the Client, they will prevail over these General Terms to the extent of any conflict.
Severance
1. If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
2. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
Counterparts
1. This Agreement may be signed in counterparts (including by copy sent via email in PDF format), and such copies may be relied upon by the other party as though it were an original copy. All signed counterparts together will constitute one document.
No Partnership or Agency
1. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
Notices
1. Any notice or other communication required to be given under this Agreement shall either be in writing and shall be delivered personally, sent by pre-paid post or recorded delivery or by commercial courier, or emailed to the parties at the addresses listed below.
2. The parties address for notice via email shall be the email address of the Key Representatives, or:
  1. for the Client:
    the address listed on the Client’s public website or such other address or email address as notified to NV Play in writing from time to time; and
  2. for NV Play:
    NV Play, PO Box 25411, City East, Christchurch 8141, New Zealand and
    notices@nvplay.com or such other email address as notified to the Client in writing from time to time.
3. Any notice or other communication shall be deemed to have been duly received:
  1. if delivered personally, when left at the address and attention to the contact referred to in this clause;
  2. if sent by email - at the time and date of receipt by the sender of a successful delivery report in respect of that email, it being agreed that the relevant notice shall take the form of a scanned PDF signed by the authorised representatives of the relevant Party (such PDF to be attached to the relevant email);
  3. if sent by pre-paid post or recorded delivery, at 9.00 am on the fifth Business Day after posting; or
  4. if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
4. If deemed receipt under clause 22.3 would occur outside business hours in the place of receipt, it shall be deferred until business hours resume. In this Clause 22.4, “business hours” means 9.00am to 5.00pm on any Business Day.
Subcontracting
1. To the extent NV Play subcontracts any part of the Services to a third party, NV Play will ensure that each such subcontractor complies with the terms of this Agreement that are relevant to that subcontractor’s part in the performance of obligations under this Agreement. Any subcontracting will not relieve NV Play from any of its obligations under this Agreement and NV Play shall remain responsible and liable for all obligations, services and functions performed by any subcontractor to the same extent as if those obligations, services or functions were performed by NV Play.
Governing Law and Jurisdiction
1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of New Zealand.
2. The parties irrevocably agree that the courts, tribunals and any competent regulators of New Zealand shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Appendix 1 - Data Processing Agreement

The NV Play Data Processing Agreement (DPA) forms Appendix 1 to this End User Licence Agreement and is incorporated into this Agreement by reference.

The current version of the DPA is available at:
https://www.nvplay.com/legal/data-processing-agreement