These Terms apply to your use of the Service (as that term is defined below). By setting up an account:
In these Terms:
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
We must use reasonable efforts to provide the Service:
You and your personnel must:
Use the Service in accordance with these Terms solely for:
When accessing the Service, you and your personnel must:
Not attempt to view, access or copy any material or data other than:
Neither use the Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.
Without limiting clause 5.2, no individual other than a Permitted User may access or use the Service. You may authorise any member of your personnel to be a Permitted User, in which case you must provide us with the Permitted User’s name and other information that we reasonably require in relation to the Permitted User. You must procure each Permitted User’s compliance with clauses 5.1 and 5.2 and any other reasonable condition notified by us to you
A breach of any of these Terms by your personnel [(including, to avoid doubt, a Permitted User)] is deemed to be a breach of these Terms by you.
You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Service, including to use, store and input Data into, and process and distribute Data through, the Service.
You acknowledge that:
We may require access to the Data to exercise our rights and perform our obligations under these Terms; and
You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 6.1.
You acknowledge and agree that:
You acknowledge and agree that to the extent Data contains personal information, in collecting, holding and processing that information through the Service, we are acting as your agent for the purposes of the Privacy Act 1993 and any other applicable privacy law. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.
While we will take standard industry measures to back up all Data stored using the Service, you agree to keep a separate back-up copy of all Data uploaded by you onto the Service.
You agree that we may store Data (including any personal information) in secure servers in overseas territory/ies and may access that Data (including any personal information) from time to time.
You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.
You must pay us the Fees.
We will provide you with valid GST tax invoices on a monthly or annual basis prior to the due date for payment.
The Fees exclude GST, which you must pay on taxable supplies.
You must pay the Fees:
In accordance with the payment terms set out on our pricing page on the Website; and
We may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or, if our primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
We may increase the Fees. If a minimum term is not specified and you do not wish to pay the increased Fees, you may terminate these Terms and your right to access and use the Service by notifying us before the 20th of the month you wish to complete your subscription, provided the notice is received by us before the effective date of the Fee increase. If you do not terminate these Terms and your right to access and use the Service in accordance with this clause, you are deemed to have accepted the increased Fees.
Subject to clause 8.2, title to, and all Intellectual Property Rights in, the Service, the Website, and all Underlying Systems is and remains our property (and our licensors’ property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.
To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
If you provide us with ideas, comments or suggestions relating to the Service or Underlying Systems (together feedback):
all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
You acknowledge that the Service may link to third party websites or feeds that are connected or relevant to the Service. Any link from the Service does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
Each party must, unless it has the prior written consent of the other party:
Keep confidential at all times the Confidential Information of the other party;
The obligation of confidentiality in clause 9.1 does not apply to any disclosure or use of Confidential Information:
For the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
Each party warrants that it has full power and authority to enter into, and perform its obligations under, these Terms.
To the maximum extent permitted by law:
We make no representation concerning the quality of the Service and do not promise that the Service will:
You agree and represent that you are acquiring the Service, and accepting these Terms, for the purpose of trade. The parties agree that:
To the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Service or these Terms; and
Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
Supplying the Service again; and/or
Our maximum aggregate liability under or in connection with these Terms or relating to the Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by you relating to the Service in the previous Year (which in the first Year is deemed to be the total Fees paid by you from the Start Date to the date of the first event giving rise to liability). The cap in this clause 11.1 includes the cap set out in clause 10.2a.
Neither party is liable to the other under or in connection with these Terms or the Service for any:
Consequential, indirect, incidental or special damage or loss of any kind.
Clauses 11.1 and 11.2 do not apply to limit our liability under or in connection with these Terms for:
Personal injury or death;
Clause 11.2 does not apply to limit your liability:
To pay the Fees;
Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Service.
Unless terminated under this clause 12, these Terms and your right to access and use the Service:
Continues until a party gives at least 20 working days notice that these Terms and your access to and use of the Service will terminate on the expiry of that notice.
Subject to clause 7.6, if the subscription option you have selected includes a minimum initial term, the earliest date for termination under clause 12.1 will be the expiry of that initial term.
Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use the Service if the other party:
Breaches any material provision of these Terms and the breach is not:
You may terminate these Terms and your right to access and use the Service in accordance with clause 7.6.
Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.
On termination of these Terms, you must pay all Fees for the provision of the Service prior to that termination.
No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.
Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of these Terms but subject to clause 12.9, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
At any time prior to one month after the date of termination, you may request:
A copy of any Data stored using the Service, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software; and/or
To avoid doubt, we are not required to comply with clause 12.9a to the extent that you have previously requested deletion of the Data.
Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Service and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have:
Used, or attempted to use, the Service:
Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.
No person other than you and us has any right to a benefit under, or to enforce, these Terms.
For us to waive a right under these Terms, that waiver must be in writing and signed by us.
Subject to clause 6.4, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing [insert email address].
These Terms, and any dispute relating to these Terms or the Service, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms or the Service.
Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 6.7, 8, 9, 11, 12.5 to 12.9 and 13.6, continue in force.
If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.
Subject to clauses 2.1 and 7.6, any variation to these Terms must be in writing and signed by both parties.
These Terms set out everything agreed by the parties relating to the Service, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 13.10.
You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.