1. Definitions and Interpretation

1.1 Definitions

The following definitions apply in these Terms:
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ASIC means the Australian Securities & Investments Commission
‍Confidential Information means information about a party which is confidential in nature, and/or is of commercial value to that party.
‍Linked User means a person other than the Subscriber who has been invited to use the Services by a Subscriber (for example, a lawyer or accountant). A Linked User must also accept these Terms to use Our Services.
‍Orchestra, We, Our or Us means Orchestra Limited (NZCN 7677058).
‍Protected Content means underlying code and software and may include text, graphics, logos, images and data from the Website and Services.
‍Services means all the services We provide now or in the future, including Our online products.
‍Subscription means when you subscribe to use our services and accept these Terms, you become a Subscriber. If you’re the Subscriber, you’re the one responsible for paying for your Subscription.
‍Subscription Fee means a monthly or annual subscription fee payable by you for the use of Our Services.
‍Terms means these terms and conditions, as amended, updated or replaced by Us from time to time.
‍Website means www.orchestra.co.nz or www.orchestra.io.

2. Orchestra Services

2.1 Subscription and right to use our services

You have the right to use Our Services while you pay your Subscription or until your Subscription expires or is terminated. By subscribing and using Our Services you accept these Terms and you will be responsible for paying the Subscription Fee.

2.2 Updates and new services

We may update, modify, change or offer new Services from time to time and new Terms may apply to these new, modified or updated Services. Any new or updated Terms will be updated on the website from time to time and We will advise you of any material changes through email or by posting a visible notice through our Services.

2.3 Maintenance of services

From time to time We will need to perform maintenance of Our Services. We will attempt to notify you in advance of any planned maintenance and to limit the downtime of the Services as best We can. We accept no liability for any disruption or non-availability of the Services whether due to maintenance or any other reason and whether in our control or not.

2.4 No warranty

We make no warranty that the Services and the Website will be of satisfactory quality to meet your requirements or that it will be fit for any particular purpose.
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3. Subscriber Responsibilities

3.1 Provision of accurate information

You agree to provide accurate, true, complete and up to date information about You which is required for the Services and setting up your Subscription. We are not required to verify the validity, accuracy or authenticity of any information you provide to Us. If you provide any information that is or becomes untrue, inaccurate or incomplete, or We have reasonable grounds to suspect that such information is untrue, inaccurate or incomplete, We have the right to suspend or terminate your account and refuse all current or future use of the Services.

3.2 Confidentiality and linked users

It is your responsibility to keep login details and information about your account and Subscription confidential. If you invite a Linked User to access your account, you should consider and understand the permissions you are granting to them. You accept all responsibility for all activities that occur under your Subscription, including the activities of any Linked Users.

3.3 Negative obligations

You will not:

• Introduce or upload anything to Our Services with a virus or malicious code.
• Upload anything to Our Services or the Website that is offensive, violates the law or infringes on the rights of others.
• Modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code of any part of Our Services.
• Commit fraud or other illegal acts through Our Services.
• Act in an abusive, disrespectful or offensive way to another Subscriber or any Orchestra employee, agent or representative.

3.4 Statutory obligations

You acknowledge and agree that you remain responsible for complying with any obligations under any applicable laws and regulations and for maintaining and keeping up to date all records and registers required under applicable law (for example the Companies Act 1993 in New Zealand and the Corporations Act 2001 in Australia). We will not be liable for any failure by you to comply with or meet your obligations under any applicable laws.

You are responsible for ensuring that your share register is correct and information matches across your Orchestra account and the New Zealand Companies Office and/or ASIC registers. Where applicable as part of our Services, We will use reasonable endeavours to ensure that the New Zealand Companies Office and/or ASIC is updated with the information We receive from you but We will not be liable for any failure by you to comply with or meet your statutory obligations. We will also use reasonable endeavours to inform you of any notices We receive from these government agencies, including fees due to them, but We will not be liable for any failure by you to pay any required fees and fines.
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4. Fees

4.1 Fees

• You agree to pay a monthly or annual Subscription Fee and onboarding or support Fees as and when they become due.
• The Subscription Fee is based on the Services you have subscribed for, and onboarding or support Fees are those agreed between you and Us.
• Fees may vary by region and include information set out in the offer details and pricing page. We may update or amend the Fees from time to time. As with any other changes to our terms, changes to Fees won’t apply retrospectively and, if we make changes and you’re a subscriber, we’ll make every effort to let you know (with minimum 30 days notice). Depending on your region, Fees may be inclusive or exclusive of transactional taxes where relevant (like VAT and GST), as reflected in the offer details and pricing page.
• There is a minimum Fee and a minimum term of 12 months for ESOP Concierge, Professional, and Platinum package Subscriptions. If You select a monthly billing cycle for these packages and You terminate within the 12-month minimum term, then a termination Fee will apply. This termination Fee will be calculated pro rata and charged to You based on the package and the number of months remaining in the minimum term at the time of termination up to maximum of NZ$5,000.
• In the event that Your total shareholder count exceeds the number for the Services you have subscribed for, Orchestra reserves the right to adjust Your fee at Your next billing event.

4.2 Payments

You agree to provide Us with accurate payment information. If We do not receive payment of your Subscription Fee on time, We may suspend or terminate access to your account and the Services until payment is made in full.
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4.3 Duties and taxes

You acknowledge and agree that you will be responsible for the payment of any international taxes and duties required to be paid under any applicable laws for the Services you have subscribed for.
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5. Data and Privacy

5.1 Data

You will retain ownership over all data entered or uploaded on to Our Services or Website. You grant Us a non-exclusive and limited licence to use, copy, transmit, store, analyse, and back up any and all data you submit to Our Services, including personal data of yourself and others to:

• enable you to use Our Services;
• allow Us to improve and maintain Our Services;
• develop new Services;
• communicate with you about your Subscription; and
• send you information We think may be of interest to you based on your marketing preferences.

You are responsible for maintaining copies of all the data you submit to Us and We will not be liable for any data loss.

When You use Our Services, We may create anonymised statistical data from your data and usage of our services, including through aggregation. Once anonymised, We may use it for our own purposes, such as to provide and improve Our Services, to develop new services or product offerings, to identify business trends, and for other uses We communicate to you.

5.2 Privacy Policy

We will comply with Our privacy policy when We use, process and store personal data that you have submitted to Us. If you provide Us with any personal data of others you agree to obtain all necessary consents from those persons for the processing of their personal data by Us.
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6. Confidential Information

6.1 Protection of confidential information

While using Our Services you may share your Confidential Information with us and you may have access to Our Confidential Information. You and We both agree to take reasonable steps to protect the other party’s Confidential Information from being accessed by unauthorised individuals.
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7. Confidential Information

7.1 Ownership of intellectual property

All content, code and software included in Our Services and created by or on behalf of Orchestra is owned by Us, Sharesies Group Limited (Our ultimate holding company) its subscontractors and third party service providers. This includes all rights intellectual property, proprietary and industrial rights arising in connection with the Services such as copyrighted works, trademarks, designs, inventions, methods, processes, technical and non-technical information, trade names, business names, domain names and codes.

7.2 Copyright

The Website and the Services are comprised of Protected Content. The Protected Content is and will at all times remain the property of Orchestra.
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8. Termination

8.1 Termination by Subscriber

You may terminate your Subscription with Orchestra at any time by providing four weeks written notice to Us. You must pay all Fees up to and including the date of termination of the Services and all other amounts outstanding to Orchestra including any termination Fees. You are not entitled to a refund if you terminate the Services.

8.2 Termination by Orchestra

We may terminate your Subscription at any time by providing 15 business days’ written notice to you.We may also terminate or suspend your Subscription immediately if:

• you breach any of these Terms and you do not remedy the breach within 10 business days after being required to do so by Us;
• you breach any of these Terms and the breach cannot be remedied;
• you fail to pay the Subscription Fee when due; or
• you become insolvent or otherwise cannot pay your debts when they fall due, your business goes into liquidation or has a receiver or manager appointed over any of its assets, you become insolvent or make any arrangement with your creditors, or become subject to any similar insolvency event in any jurisdiction.

You are not entitled to a refund or compensation of any other kind if you or We terminate the Services.

8.3 Refund on termination

If your Subscription is terminated by you or us, at any time and for any reason:

• you will not be entitled to a refund or any compensation for the Fees paid by you; and
• Orchestra is entitled, at its sole discretion, to charge you an amount equivalent to the Fees for the remainder of term for the Services subscribed for by you. You agree that such amount is reasonable and is a genuine estimate of the loss incurred by Orchestra as a result of the early termination.

8.4 Retention of your data

Once a Subscription is terminated by you or Us, it is archived and the data submitted or created by you is no longer available to you. As a Subscriber, you can reactivate Your Subscription and once again access the data by paying the Subscription Fees. After termination, We retain the data for a period of time where We have an ongoing business need to retain it including any legal requirements. Following that period, We delete or anonymise the data.

9. Liability and Indemnity

9.1 Indemnity

You agree to indemnify and hold us (and Our officers, directors, agents and employees) harmless from any claim, demand or liability, including reasonable legal fees, arising out of or related to Your use of the Services or breach of these Terms or any law or the rights of a third party (except as far as We are at fault).

9.2 Exclusion and limitation of liability

You agree that to the maximum extent permitted by law, Orchestra and its affiliates, officers, employees, agents and partners shall not in any way be liable to you for any loss or damage of any nature arising from your use of the Services. If in any circumstance We are found liable our total aggregate liability to you is limited to the total amount you paid Us for your Subscription in the 12 months immediately preceding the date on which the claim giving rise to the liability arose.

9.3 Exclusion of liability: Dividends statements & loan tracking feature

You agree that to the maximum extent permitted by law, Orchestra and its affiliates, officers, employees, agents and partners shall not in any way be liable to you for any loss or damage of any nature arising from your use of the Services. If in any circumstance we are found liable we our total aggregate liability to you is limited to the total amount you paid Us for your Subscription in the 12 months immediately preceding the date on which the claim giving rise to the liability arose.

• Responsibility for Accuracy: Our dividend calculation feature is designed to assist you in determining the amounts eligible shareholders receive from a company dividend and to provide withholding tax figures for filing with the relevant tax authority(s). The share purchase loan module (‘Employee loans’) is designed to keep a record of the loan balance (including the balance with interest, ad hoc payments and dividend payments.)However, it is important to note that the accuracy of these calculations is dependent on the data you provide.
• Data Reliance: The dividend calculation & share purchase loan feature relies on the accuracy and completeness of the data entered into the system. Therefore, it is your responsibility to ensure that all the information you input is accurate, up-to-date, and reflective of the relevant financial data.
• No Guarantee of Accuracy: While We make every effort to provide accurate and reliable records, We cannot guarantee the absolute accuracy or completeness of the calculations or statements produced by Our system. Factors such as data entry errors, changes in taxation laws, or other unforeseen circumstances may affect the accuracy of the results.
• Independent Verification: We strongly recommend that you independently verify the calculations and statements produced by our dividend calculation feature and employee loans module before making any financial decisions or submitting figures to any tax authority. Double-checking the results with a qualified accountant or financial advisor is advisable to ensure the accuracy and compliance of your dividend statements.
• Limited Liability: By using these features, you acknowledge that Orchestra and its affiliates shall not be held liable for any losses, damages, or consequences arising from the reliance on the calculations or statements provided by Our system. You agree to assume full responsibility for any financial or legal outcomes resulting from the use of this feature.
• Consultation with Professionals: We strongly recommend consulting with a professional accountant or tax advisor regarding any financial decisions, dividend distributions, or compliance requirements related to your company's dividends and loans issued for share purchase schemes. They can provide you with personalised advice based on your specific circumstances.

10. Disputes

10.1 Resolution of disputes

If any dispute arises between you and Us, We each agree to discuss in good faith to resolve the dispute. If We are unable to resolve the dispute, We agree to resolve the dispute through binding arbitration or small claims court instead of in courts of general jurisdiction.

11. Miscellaneous

11.1 Related and third party services

Our Services may be integrated with or otherwise interact with the services of other third party providers. Other third party providers may have their own terms and conditions and privacy policies and your use of their services will be governed by and subject to their terms and conditions and privacy policy.

11.2 Force majure

We will not be liable to you for any failure or delay to perform Our obligations under these Terms arising out of any event or circumstance beyond Our reasonable control.

11.3 Waiver

We will not be deemed to have waived any right under these Terms unless the waiver is in writing. A failure to exercise or delay in exercising any right by Us under these Terms will not operate as a waiver of that right.

11.4 Communication

If you have any questions or concerns relating to the Terms or the Services, please contact Us on info@orchestra.co.nz We will send you any notices or communications to the email address you provided when sending.

11.5 Electronic communication

You consent to receiving communication from us electronically and you agree that all agreements, notices and disclosures transmitted electronically satisfy any legal requirement that such communication be in writing. You agree for the purposes of the Electronic Transactions Act 2002 to be bound by any agreement reached through electronic means.

11.6 Assignment

We may assign these Terms or any of Our rights and obligations under these Terms without the need to obtain your consent. You may not assign any or all of your rights and obligations under these Terms without Our prior written consent.

11.7 Severance

If any provision in these Terms becomes invalid or unenforceable, the remainder of these Terms will remain valid and enforceable to the fullest extent permitted by law.

11.8 Governing law

These Terms are governed by, and if to be construed in accordance with, the laws of New Zealand and you agree to submit to the exclusive jurisdiction of the courts of New Zealand for any disputes or proceedings arising out of or in connection with these Terms.