Terms & Conditions

aclause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;

bwords in the singular include the plural and vice versa;

ca reference to:

dno term of the Agreement is to be construed against a party because the term was first proposed or drafted by that party; and

eif there is any conflict between Section B and Section A of the Agreement, Section B prevails unless expressly stated otherwise in Section A.

ain accordance with the Agreement and New Zealand law;

bexercising reasonable care, skill and diligence; and

cusing suitably skilled, experienced and qualified personnel.

aSubject to clause 2.3b, the Supplier will use reasonable efforts to ensure the SaaS is available (during normal business hours/on a 24/7 basis) in New Zealand.  However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure.  The Supplier will use reasonable efforts to publish on the Website advance details of any unavailability.

bThrough the use of web services and APIs, the SaaS interoperates with a range of third party service features.  The Supplier does not make any warranty or representation on the availability of any third party features.  Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, the Supplier may cease to make available that feature to the Client.  To avoid doubt, if the Supplier exercises its right to cease the availability of a third party feature, the Client is not entitled to any refund, discount or other compensation. 

aThe Supplier may, from time to time, make available additional services to supplement the SaaS.

bAt the request of the Client and subject to the Client paying the applicable additional fee, the Supplier may agree to provide to the Client additional Related Service(s) on the terms of the Agreement.

ause the Services in accordance with the Agreement solely for:

bnot resell or make available the Services to any third party, or otherwise commercially exploit the Services.

anot impersonate another person or misrepresent authorisation to act on behalf of others or the Supplier;

bcorrectly identify the sender of all electronic transmissions;

cnot attempt to undermine the security or integrity of the Underlying Systems;

dnot use, or misuse, the SaaS in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service;

enot attempt to view, access or copy any material or data other than that to which the Client is authorised to access;

fneither use the SaaS 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; and

gcomply with any terms of use on the Website, as updated from time to time by the Supplier.

aWithout limiting clause 3.2 , no individual other than a Permitted User may access or use the SaaS.

bThe Client may authorise any member of its personnel to be a Permitted User, in which case the Client will provide the Supplier with the Permitted User’s name, email address and other information that the Supplier reasonably requires in relation to the Permitted User.  The Client acknowledges that the Ongoing Fees are calculated on a per user basis.

cThe Client must procure each Permitted User’s compliance with clauses 3.1 and 3.2 and any other reasonable condition notified by the Supplier to the Client.

A breach of any term of the Agreement by the Client’s personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of the Agreement by the Client.

aThe Client acknowledges that:

bThe Client must arrange all consents and approvals that are necessary for the Supplier to access the Data as described in clause 4.1 a.

cThe Client authorises the Supplier to collect, use and hold and disclose any such Personal Information:

aThe Client acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, the Supplier is acting as an agent of the Client for the purposes of the Privacy Act 1993 and any other applicable privacy law.

bThe Client must obtain all necessary consents from the relevant individual to enable the Supplier to collect, use, hold and process that information in accordance with the Agreement.

aThe Supplier will provide the Client with valid GST tax invoices on the dates set out in the Payment Terms, or if there are none, monthly in arrears for the Fees due in the previous month.

bThe Fees exclude GST, which the Client must pay on taxable supplies under the Agreement.

cThe Client must pay the Fees:

aThe price list for all Services are as set out in the Schedule and the Supplier may offer additional Services from time to time by notifying these to the Client.

bBy giving at least 30 days’ notice, the Supplier may increase the Fees once each Year and notify the Client of such increase at least 30 days prior to the end of each annual term (but not during the Initial Term) by the percentage change in the New Zealand Consumer Price Index (or similar or equivalent index if that index ceases to be published) over the 12 months preceding the last quarterly publication of that index issued by Statistics New Zealand prior to the date of the notice.  Fees updated under this clause are deemed to be the Fees listed in the Key Details.

cIf the Client does not wish to pay the increased Fees, it may terminate the Agreement on no less than 30 days’ notice prior to the end of each annual term.  If the Client does not terminate the Agreement in accordance with this clause, it is deemed to have accepted the increased Fees.

aSubject to clause 6.1b, title to, and all Intellectual Property Rights in, the Services, the Website, and all Underlying Systems is and remains the property of the Supplier.   The Client must not dispute that ownership.

bTitle to, the Data (as between the parties) remains the property of the Client.  The Client grants the Supplier 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 its rights and performance of its obligations in accordance with the Agreement.

aall 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 the Supplier; and

bthe Supplier may use or disclose the feedback for any purpose.

akeep confidential at all times the Confidential Information of the other party;

beffect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and

cdisclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 7.1a and 7.1b.

afor the purpose of performing the Agreement or exercising a party’s rights under the Agreement;

brequired by law (including under the rules of any stock exchange);

cwhich is publicly available through no fault of the recipient of the Confidential Information or its personnel;

dwhich was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or

eby the Supplier if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.

athe Supplier’s warranties are limited to those set out in the Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Sale of Goods Act 1908) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to one month’s subscription; and

bit is the responsibility of the Client to satisfy itself as to the suitability and fitness of the Services for its purposes - the Supplier makes no representation concerning the quality of the Services and does not promise that the Services will:

asupplying the Services again; and/or

bpaying the costs of having the Services supplied again.

aloss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or

bconsequential, indirect, incidental or special damage or loss (whether in contract, tort or otherwise) of any kind.

cClause 9.2 does not apply to limit the Client’s liability:

astarts on the Start Date and ends on the End Date; but

bwhere no End Date is set out in the Key Details, continues for successive terms of 12 months from the Start Date unless a party gives 30 days’ notice that the Agreement will terminate on the expiry of the then current term.

aThe Supplier may, by notice to the Client, immediately terminate the Agreement if the Client:

aTermination or expiry of the Agreement does not affect the Supplier’s rights and obligations that accrued before that termination or expiry.

bOn termination or expiry of the Agreement, the Client must pay all Fees for Services provided prior to that termination or expiry.

cExcept to the extent that a party has ongoing rights to use Confidential Information, at the Supplier’s request following termination or expiry of the Agreement, the Client must promptly return to the Supplier or destroy all Confidential Information of the Supplier that is in the Client’s possession or control. 

dAt any time prior to one month after the date of termination or expiry, the Client may request:

To avoid doubt, the Supplier is not required to comply with clause 10.3di to the extent that the Client previously requested deletion of the Data.

aundermines, or attempts to undermine, the security or integrity of the SaaS or any Underlying Systems;

auses, or attempts to use, the SaaS:

ahas otherwise materially breached the Agreement (in the Supplier’s reasonable opinion).

aimmediately notifies the other party and provides full information about the Force Majeure;

buses best efforts to overcome the Force Majeure; and

ccontinues to perform its obligations to the extent practicable.

aThe Client may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of the Supplier, that consent not to be unreasonably withheld.  The Client remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer.  Any assignment, novation, subcontracting or transfer must be in writing.

bAny change of control of the Client is deemed to be an assignment for which the Supplier’s prior written consent is required under clause 12.9a.  In this clause change of control means any transfer of shares or other arrangement affecting the Client or any member of its group which results in a change in the effective control of the Client.

cThe Supplier shall have the right to assign, novate, subcontract or transfer any right or obligation under the Agreement by notice to the Client.