This Agreement sets out the basis upon which SiteSoft will provide the User with access to the Services. By registering to use the Services, the User acknowledges and agrees that the User has read and agrees to these terms and conditions and has the authority to act on behalf of any person or entity for whom you are using the Services. If SiteSoft accepts your application for an account, the User will be provided with a username and password.
1. USE OF SERVICES
1.1 Use of Services: SiteSoft grants the User the right to access and use the Services from the Start Date via the SiteConnect Web Application or the SiteConnect Mobile Application.
1.2 Non-Exclusive: The User’s right to use the Services is non-exclusive, non-transferable and is not able to be sub-licensed. Nothing in the Agreement prevents SiteSoft from providing the Services to any other person.
1.3 Third Party Features: The Services interoperate with a range of third party service features but SiteSoft does not make any warranty or representation on the availability of those features. If a third party feature provider ceases to provide that feature, SiteSoft may cease to make available that feature to the User. To avoid doubt, if SiteSoft exercises its right to cease the availability of a third party feature, the User is not entitled to any refund, discount or other compensation.
1.4 Connectivity: The User acknowledges that the User is responsible for the provision of the internet, 3G, 4G or other enabled connections to the tablet or any phone or device in order to use the Services.
2. USER OBLIGATIONS
2.1 General use: The User must use the Services in accordance with this Agreement solely for its own internal business purposes and must not resell or make available the Services to any other third party (unless in accordance with clause 2.3or otherwise approved in writing by SiteSoft) or otherwise commercially exploit the Services.
2.2 Access conditions: When accessing the Services, the User must:
(a) not impersonate another person or misrepresent authorisation to act on behalf of others or SiteSoft;
(b) not share the User’s login and password details with any other person;
(c) not allow any other person who is not a Permitted User to access the Services without SiteSoft’s prior written consent;
(d) not attempt to undermine the security or integrity of the Underlying Systems;
(e) not use, or misuse, the Services in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Services;
(f) not attempt to view, access, reverse engineer or copy any material or data other than that to which the User is authorised to access; and
(g) neither use the Services in a manner, nor transmit, input or store any User Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.
(a) No individual or entity other than the User may access or use the Services.
(b) The User may authorise any member of its personnel or a contractor to be a Permitted User. In such circumstances, the User will provide SiteSoft with the Permitted User’s name and other information that SiteSoft reasonably requires in relation to the Permitted User. Acceptance of a Permitted User is at SiteSoft’s sole discretion.
(c) When registering to use the Services, each Permitted User must agree to comply with this Agreement. The User is responsible for the Permitted User’s use of the Services in respect of the User’s activities. A breach of any term of this Agreement by the User’s Permitted User is deemed to be a breach of this Agreement by the User.
(d) The User controls each Permitted User’s access to the Service in relation to that User at all times and can revoke or change a Permitted User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be a Permitted User or shall have that different level of access, as the case may be.
3. USER DATA
3.1 SiteSoft Access to User Data: The User acknowledges that:
(a) SiteSoft may require access to the User Data to exercise its rights and perform its obligations under this Agreement; and
(b) to the extent that this is necessary, but subject to clause 6, SiteSoft may authorise a member or members of its personnel to access the User Data for this purpose.
3.2 Consent: The User is responsible for procuring all licences, authorisations and consents required for:
(a) the User to use the Services, including to use, store and input User Data into, and process and distribute User Data through, the Services; and
(a) The User acknowledges and agrees that to the extent User Data contains Personal Information, SiteSoft is acting as an agent of the User for the purposes of the Privacy Act 1993 and any other applicable privacy law.
3.4 Backups of UserData: While SiteSoft will take standard industry measures to back up all User Data stored using the Services, the User agrees to keep a separate back-up copy of all User Data uploaded by it on to the Service.
3.5 International Storage of UserData: The User agrees that SiteSoft may store User Data (including any Personal Information) in secure servers in various international locations.
3.6 Indemnity: The User indemnifies SiteSoft against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by SiteSoft’s solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any User Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the User Data is Objectionable, incorrect or misleading.
4.1 Fees: The User must pay to SiteSoft the Fees.
4.2 Invoicing and payment:
(a) SiteSoft will provide the User with a valid automatic direct credit bank form for completion.
(b) The Fees exclude goods and services tax, which the User must pay on taxable supplies under this Agreement.
(c) The User must pay the Fees within 20 days after receipt of the invoice electronically in cleared funds without any set off or deduction.
4.3 Overdue amounts: SiteSoft 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 10% per annum. SiteSoft is entitled to recover from the User all costs that SiteSoft may reasonably incur in attempting to collect any amount owing (including actual legal costs and expenses and any costs of collection).
4.4 Fee Increases:
(a) SiteSoft may increase the Fees at any time by giving 30 days’ notice on the SiteSoft Website and to the User’s email address.
(b) If the User does not wish to pay the increased Fees, the User may terminate this Agreement by written notice to SiteSoft. If the User does not terminate this Agreement, the User is deemed to have accepted the increased Fees by continuing to use the Services.
5. INTELLECTUAL PROPERTY
(a) Subject to clause 5.1(b), title to, and all Intellectual Property Rights in, the Services, the SiteConnect Web Application, the SiteConnect Mobile Application and the Underlying Systems are and remain the property of SiteSoft (and its licensors). The User must not dispute that ownership.
5.2 Know how: To the extent not owned by SiteSoft, the User grants SiteSoft a royalty-free, transferable, irrevocable and perpetual licence to use any know how, techniques, ideas, methodologies, and similar Intellectual Property owned by the User and used by SiteSoft in the provision of the Services.
5.3 Feedback: If the User provides SiteSoft with ideas, comments or suggestions relating to the Services or the Underlying Systems (“Feedback”):
(a) all Intellectual Property Rights in the Feedback, and anything created as a result of the Feedback (including new material, enhancements, modifications or derivative works), are owned solely by SiteSoft; and
(b) SiteSoft may use or disclose the Feedback for any purpose.
5.4 Third party sites and material: The User acknowledges that the Services may link to third party websites or feeds that are connected or relevant to the Services. Any link from the Services does not imply any SiteSoft endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, SiteSoft excludes all responsibility or liability for those websites or feeds.
6. CONFIDENTIALITY AND PRIVACY
6.1 Security: Each party must, unless it has the prior written consent of the other party:
(a) keep confidential at all times the Confidential Information of the other party;
(b) effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
(c) disclose 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 6.1(a)and 6.1(b)of this Agreement.
6.2 Permitted disclosure: The obligation of confidentiality in clause 6.1(a)does not apply to any disclosure or use of Confidential Information:
(a) required by law (including under the rules of any stock exchange);
(b) which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
(c) which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
(d) by SiteSoft if required as part of a bona fide sale of its business (either assets or shares and whether in whole or in part) to a third party, provided that SiteSoft enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 6.
7. ACKNOWLEDGEMENT AND INDEMNITY
7.1 Acknowledgement: The User acknowledges that:
(a) SiteSoft has no responsibility to any person other than the User and nothing in this Agreement confers, or purports to confer, a benefit on any person other than the User. If the Services are used by any person on behalf of or for the benefit of anyone other than the User (whether a body corporate or otherwise) the User agrees that:
(i) the User is responsible for ensuring that the person has the right to do so;
(ii) the User is responsible for authorising any person who is given access to information or User Data, and you agree that SiteSoft has no obligation to provide any person access to such information or User Data without the User’s authorisation and may refer any requests for information to the User; and
(iii) the User indemnifies SiteSoft against any claims or losses relating to:
(1) SiteSoft’s refusal to provide any person access to the Service or User Data in accordance with this Agreement;
(2) SiteSoft making available information or User Data to any person with the User’s authorisation;
(b) the provision of, access to, and use of, the Services is on an “as is” basis and at the User’s own risk. SiteSoft gives no warranty about the Services. Without limiting the foregoing, SiteSoft does not warrant that the Services will meet the User’s requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded to the maximum extent permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement; and
(c) SiteSoft does not warrant that the use of the Services will be uninterrupted or error free. Among other things, the operation and availability of the Underlying Systems used for accessing the Services, including computer networks and the internet can be unpredictable and may from time to time interfere with or prevent access to the Services. SiteSoft is not in any way responsible for any such interference or prevention of the User’s access or use of the Services.
7.2 Consumer Guarantees Act: The User agrees and represents that the User is acquiring the Services for the purpose of a business and that, to the maximum extent permitted by law, the Consumer Guarantees Act 1993 does not apply to the supply of the Services or this Agreement.
7.3 Indemnity: The User indemnifies SiteSoft against any loss, costs, liability or expense that SiteSoft may incur as a result of the User’s use of the Services.
8. LIMITATION OF LIABILITY
8.1 Exclusion of Liability for the Services: To the maximum extent permitted by law, SiteSoft excludes all liability to the User (or any other person) whether in contract, tort (including negligence), or otherwise howsoever arising, for any loss (including loss of information or User Data) or damage resulting, directly or indirectly, from any use of, or reliance on, the Services. If the User is dissatisfied with the Services, the User’s sole and exclusive remedy is to terminate this Agreement in accordance with clause 9.
8.2 Exclusion of Consequential Losses: Notwithstanding anything else in this Agreement, under no circumstances shall SiteSoft be liable to the User or any other person (whether in contract, tort, including negligence, or otherwise howsoever arising) for any loss of profits, consequential loss or damage, indirect loss or damage or other special loss or damage of any kind.
8.3 Maximum Liability: To the maximum extent permitted by law, SiteSoft’s maximum liability to the User for any loss or damage arising as a result of SiteSoft’s negligence or failure to comply with this Agreement for any single event or series of related events is $1,000.00.
8.4 Health and Safety Laws acknowledgement: SiteSoft provides the Services to assist the User to comply with the User’s obligations under any applicable health and safety laws and regulations. The User acknowledges that the User is responsible for:
(a) the content and User Data that the User inputs into the Services; and
(b) complying with the legal obligations imposed by any applicable health and safety laws and regulations.
9. TERM, TERMINATION AND SUSPENSION
9.1 Duration: This Agreement commences on the Start Date and continues until either party gives written notice of termination to the other party at any time.
9.2 Consequences of termination or expiry:
(a) Termination of this Agreement does not affect either party’s rights and obligations that accrued before termination.
(b) On termination of this Agreement, the User must pay all Fees for Services provided prior to termination.
(c) Except to the extent that a party has on-going rights to use Confidential Information, at the other party’s request following termination a party must promptly return to the other party or destroy all Confidential Information of the other party that is in that party’s possession or control.
(d) At any time within one month after the date of termination, the User may request:
(i) a copy of any User Data stored using the Services, provided that the User pays SiteSoft’s reasonable costs of providing that copy. On receipt of that request SiteSoft must provide a copy of the User Data in a common electronic form. SiteSoft does not warrant that the format of the User Data will be compatible with any software; and/or
(ii) deletion of the User Data stored using the Service, in which case SiteSoft must use reasonable efforts to promptly delete that User Data. To avoid doubt, if no request is made by the User under this clause then SiteSoft may delete the User’s Data.
9.3 Obligations continuing: Clauses which are intended to survive termination or expiry of this Agreement, including clauses 3.6, 5, 6, 7.3, 8, 9.2, continue in full force and effect.
9.4 Suspending access: Without limiting any other right or remedy available to SiteSoft, SiteSoft may restrict or suspend the User’s access to the Services where the User (including any of its personnel
(a) undermines, or attempts to undermine, the security or integrity of the Service or any Underlying Systems;
(b) uses, or attempts to use, the Services:
(i) for improper purposes; or
(ii) in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Services; or
(c) has otherwise breached this Agreement.
10.1 Subcontracting and Assignment:
(a) The User may not assign, novate, subcontract or transfer any right or obligation under this Agreement without the prior written consent of SiteSoft.
(b) Any change of control of the User is deemed to be an assignment for which SiteSoft’s prior written consent is required under clause 10.1(a). In this clause, change of control means any transfer of shares or other arrangement affecting the User or any member of its group which results in a change in the effective control of the User.
10.2 Force Majeure: Neither party is liable to the other party for any failure to perform its obligations under this Agreement to the extent caused by Force Majeure, provided that the affected party:
(a) promptly notifies the other party about the Force Majeure; and
(b) continues to perform its obligations to the extent reasonably practicable.
10.3 Rights of third parties: No person other than SiteSoft and the User has any right to a benefit under, or to enforce, this Agreement.
10.4 Waiver: No waiver of any right under this Agreement is effective unless the waiver is expressly given in writing and signed by the waiving party.
10.5 Independent contractor: Subject to clause 3.3, SiteSoft is an independent contractor of the User, and no other relationship (such as joint venture, agency, trust or partnership) exists under this Agreement.
10.6 Notices: A notice given by a party under this Agreement must be delivered to the other party via email using the email address notified by the other party for this purpose. The email address for SiteSoft is support@SiteSoft.com.
10.7 Severability: Any illegality, unenforceability or invalidity of a provision of this Agreement does not affect the legality, enforceability or validity of the remaining provisions of this Agreement.
10.8 Review: SiteSoft reserves the right to review and amend any of these terms and conditions of use at any time. Any change will take effect from the date that the new terms are uploaded to the SiteSoft Website.
10.10 Law: This Agreement is 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 this Agreement.
11.1 Definitions: In this Agreement, the following terms have these meanings:
(a) Agreement means these terms and conditions of use, as may be varied or updated from time to time by SiteSoft.
(b) Confidential Information means any information that is not publicly available and that is obtained from the other party in the course of, or in connection with, this Agreement.
(c) Feedback has the meaning given in clause 5.3.
(d) Fees means the information relating to subscriptions and billing set out on the SiteSoft Website as may be updated from time to time.
(e) Force Majeure means an event that is beyond the reasonable control of a party, excluding an event to the extent that the User could have avoided the event by the User taking reasonable steps or reasonable care.
(f) Intellectual Property Rights means copyright and all worldwide rights conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, Confidential Information, know how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
(g) Objectionable means being objectionable, defamatory, obscene, harassing, threatening, or unlawful in any way.
(h) Permitted Users means those personnel and subcontractors of the User who the User authorises to access and use the Services on the User’s behalf in accordance with clause 2.3.
(i) Personal Information has the meaning given in the Privacy Act 1993.
(k) Services means the online health and safety services made available via the SiteConnect Web Application or the SiteConnect Mobile Application (as may be changed or updated from time to time by SiteSoft).
(l) SiteConnect Mobile Application means the SiteConnect mobile application that is used to provide the Services.
(m) SiteConnect Web Application means the SiteConnect web application that is used to provide the Services.
(n) SiteSoft means SiteSoft New Zealand Limited.
(o) SiteSoft Software means the software owned by SiteSoft (and its licensors) that is used to provide the Services.
(p) SiteSoft Website means www.SiteSoft.com as may be updated from time to time.
(q) Start Date means the date that the User is provided with a username and password to access the Services.
(r) Underlying Systems means the SiteSoft Software, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
(s) User means the person or entity who registers to use the Services and, where the context permits, includes any person or entity on whose behalf the User authorises to use the Services (including Permitted Users).
(t) User Data means all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the User that is stored using, or inputted into, the Services.
11.2 Interpretation: In this Agreement, unless the context otherwise requires:
(a) clauses and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
(b) words in the singular include the plural and vice versa;
(c) a reference to:
(i) a party to this Agreement includes that party’s permitted assigns;
(ii) personnel includes officers, employees, contractors and agents;
(iii) a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
(iv) including and similar words do not imply any limit; and
(v) a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them; and
(d) all amounts are in New Zealand dollars unless expressly stated otherwise.