Terms and Conditions for subscription and use of elementORG platform and related services.
This document provides details on the way we govern ourselves when providing you services using the elementORG platform and what you can expect from us.
We try not to be eggs about this sort of thing but sometimes it is important to lay a solid foundation for managing expectations and ensuring we all know where we stand in the crazy event something happens. Speaking of we once did some work with a government agency who included ‘zombie outbreak’ in their contingency planning. That is planning for a crazy event.
This is a document that can provide a foundation for you and us. It exists to provide confidence that in the unlikely and unfortunate event that our relationship does not go as expected there is already a framework on our options for figuring things out.
Basically, we take our relationship with clients seriously. Real seriously. And that means sometimes we need to have some boring legal type stuff to stand on, so we can build our relationship into something great.
Please note this agreement does not cover consulting, ad hoc development, project management and other Services provided by us. These are governed by the relevant Terms of Service.
If you have any questions or need clarifications, please contact us at: firstname.lastname@example.org
Effective date 20 November 2017
This Terms and Conditions (“Agreement”) is entered into by and between the Adroit Creations Ltd entity set forth below (“Adroit”) and the entity or person placing an order for or accessing any Services using the (a) elementORG platform (“Customer” or “you”) including all successor URLS, mobile or localized versions and related domains and subdomains and (b) communications and messaging products and services (where ((a) and (b) collectively are the, “Services”). If you are accessing or using the Services on behalf of your organisation, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.
This Agreement permits Customer to purchase subscriptions to the above Services from Adroit pursuant to any Adroit documents, online registration, order descriptions or order confirmations referencing this Agreement (“Orders”) and sets forth the basic terms and conditions under which these Services will be delivered. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
As used in this Agreement, “Adroit” means Adroit Creations Limited a New Zealand corporation with offices at Unit B, 18 Belmont Road, Paeroa, 3600, New Zealand.
By indicating your acceptance of this agreement or accessing or using any services, you are agreeing to be bound by all terms, conditions, and notices contained or referenced in this agreement. If you do not agree to this agreement, please do not use any services. For clarity, each party expressly agrees that this agreement is legally binding upon it. This agreement contains mandatory arbitration provisions that require the use of arbitration to resolve disputes, rather than jury trials. Please read it carefully.
In this Agreement, the following words mean the following:
Agreement” means: a. these General Terms and Conditions; and b. any additional documents including the order form.
“Client Hosted Site” means an instance of the elementORG solution hosted on your own IT environment.
“Fees” means the licence, support and/or any other fees payable by you in consideration of us providing you with access to, support of, and services in relation to, the Services.
“Intellectual Property Rights” means all our rights in the Services, and in our website through which that Services are accessed, including rights to patents, trademarks, service marks, inventions, copyright, know how whether registered or not, and any related enhancement or modifications.
“Form” means any additional information / document provided during the order process including any specific terms that apply to the provision by us of the Services, including (without limitation) any specific requirements requested by you from us in relation to the implementation, training, support and/or otherwise of the Services.
1.0 Commencement date and term
1.1 The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order referencing this Agreement, and continues in force until terminated in accordance with the remainder of this document.
2.0 Changes and modifications
2.1 Things change and as they do from time to time, Adroit may modify this Agreement. Unless otherwise specified by Adroit or other Agreement the changes will become effective for Customer upon renewal of Customer’s current Subscription Term (as defined below) or entry into a new Order. Adroit will use reasonable efforts to notify the Customer of the changes through communications via Customer’s account, email or other means. The continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
2.2 If Adroit specifies that changes to the Agreement will take effect prior to Customer’s next renewal or order (such as for legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term.
3.0 Access to elementORG
3.1 We agree to provide, and you agree to accept, access to the elementORG platform in accordance with the terms of this Agreement. We grant you a non-transferable, non-exclusive, revocable licence to use the elementORG platform solely for your internal business purposes, and to restrict the use to the platform to the limitations of your licence as covered by your order form and conditions outlined in this agreement.
3.2 You acknowledge that you are responsible for all computer equipment, communications links and Internet access you require to access the Services, and for all charges in relation to those things.
3.3 If your use of the Services is by way of a Client Hosted Site, this will be governed by additional agreement.
4.0 Supporting services and expectations
4.1 We will provide you with support for your use of the Services as follows:
a. we will provide you telephone or email advice (at our discretion) about the following things: what we are doing to rectify any bugs or deficiencies in the Services; to provide you with reasonable assistance to operate the Services (but if you need more than reasonable assistance, we will arrange for training for you at your cost).
b. as the Service is continually evolving, we may at any time update the Services with new versions or updates as we think should be generally available. Most updates will occur automatically, however there may be the rare instance where you will need schedule and implement the updates. You will if required, upgrade your software and/or equipment to make efficient use of the Services. We will provide you with reasonable notice of any such upgrades.
4.2 We may charge you additional fees at our then current hourly rates for support that results from:
a. you requiring additional configuration or access to, or support or assistance with, the Services;
b. you requiring assistance in implementing new versions or updates, including data migration, testing, configuring updates or any other professional services; or
c. you using new hardware. We will, where it is practicable in the circumstances to do so, agree with you the additional fees payable prior to you incurring them.
4.3 If you ask us to visit your site for the purpose of providing support, you will pay us all reasonable travel and accommodation expenses, as well as any charge under clause 4.2 above, and we will, where it is practicable in the circumstances to do so, agree with you these expenses or charges prior to you incurring them.
4.4 If you are required by law to deduct or withhold taxes or charges from the amounts due to us under this Agreement, you will ensure that the amount due to us is increased so that the payment made to us equals the amount due to us as if no such taxes or charges had been imposed.
5.0 Warranties and indemnities
5.1 We warrant that:
a. we have the power and authority to allow you to use the Services.
b. to the best of our knowledge, the Services does not infringe any copyright of any third party.
c. when we provide services relating to your use of the Services to you, we will do so to the standard of care and skill reasonably expected of a professional in the provision of such services
d. we will use all reasonable commercial endeavours to ensure the Services are available to you 24 hours a day, 7 days a week (excepting outages for the installation of planned updates and new versions, routine maintenance, correction of errors and bug fixes) but we do not guarantee that access will be continuous or error free. You acknowledge that the availability of the internet, your communication links and your equipment are integral to the availability of the Services and will affect your use of it. We cannot be responsible for the equipment you use or the methods you use for accessing the Services.
5.2 We do not warrant:
a. that your use of the Services will be uninterrupted or error-free;
b. that the Services and/or the information obtained by you through the Services will meet your requirements; and
c. the accuracy, correctness, reliability and completeness of any information, formulae, or calculation provided using the Services (together referred to as Calculations). You acknowledge that the results from any Calculations are for informational purposes only, and that the assumptions used, and figures generated are for purposes of illustration and reference only, and are subject to change depending on a variety of factors, which may not have been taken into account in the computation.
5.3 To the maximum extent permitted by law, we will not be liable for any form of loss or damage, arising out of or in connection with your reliance on and use of the Services. You agree that you will not rely solely on the Calculations and will carry your own calculations (other than by using the Services) to verify the accuracy, correctness, reliability and completeness of the Calculations.
5.4 Except for the warranties in clause 5.1, all other warranties are expressly excluded to the maximum extent permitted by law.
5.5 We will indemnify you against any claim that the Services infringes the copyright of any third party in respect of any amounts awarded against you in judgment or settlement of such claim, provided that:
a. we are given prompt notice of any such claim;
b. you provide us with reasonable co-operation in the defence and settlement of such claim, at our expense; and
c. we are given sole authority to defend or settle the claim.
5.6 In the defence or settlement of any claim, we may procure the right for you to continue using the Services, replace or modify the Services so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 10 days’ notice to you without any additional liability.
5.7 In no event will we, our employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:
a. modification of the Services by anyone other than by us or otherwise authorised by us;
b. your use of the Services in a manner contrary to the instructions we have made available to you;
c. your use of the Services after notice of the alleged or actual infringement from us or any appropriate authority.
5.8 The foregoing states your sole and exclusive rights and remedies, and our entire obligations and liability, for infringement of the copyright and any other intellectual property rights of any third party.
6.0 Ownership and restrictions
6.1 You understand that the Intellectual Property Rights in the Services and the website associated with it (other than relating to data or information which you input) belong to us, and you will not dispute our ownership of them.
6.2 We acknowledge that the data or information you upload when you use the Services is your confidential information. You will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the data or information which you input. We will not knowingly disclose such data or information unless we are required to do so by law, or the information is already in the public domain (other than as a result of a breach of this clause 6.2). We will, where it is practicable to do so, give you reasonable notice of our intention to disclose such data or information.
6.3 You acknowledge and agree that we may use your data or information that you input into, or which is generated by, the Services for the purpose of:
a. performing our obligations under this Agreement;
b. improving or enhancing the Services;
c. assessing the performance of your business and processes, including comparing or benchmarking such performance against the performance of our other customers’ businesses or industry practice; d. assessing what other services we may provide and promote to you, including offering services that may assist in improving performance;
e. performing data analysis on an aggregated and anonymous basis, provided that we comply with our confidentiality obligations under clause 6.2.
6.4 You must abide by our acceptable user policy including but not limited to:
a. not share your user account access to the Services or any Client Hosted Site with any third party unless you have provided them their own user account and / or limited access via SDK or API.
b. ensure that all users that you authorise to use the Services are responsible for the safekeeping of their log-in and password details, and you will ultimately be responsible for all use or access of the Services by anyone using any of your authorised users’ log-in and password details, and for payment of charges arising from that use.
c. You will ensure that authorised users change their passwords if we request them to do so.
d. You must contact us immediately if you suspect any unauthorised use or disclosure of any log-in and password details.
e. ensure that the Services is used only by you, and in accordance with our guidelines for it.
f. You are responsible for ensuring that your hardware and software is correctly configured to enable you to use the Services. We will use reasonable endeavours to specify the hardware and software that you require so that you can use the Services.
6.5 You must have legal right to access the information your systems use. We could go on for hours about this topic, but to summarise: We think this should be an automatic right, however some providers think they own user’s data. We can’t access systems if your contracts and agreements with the suppliers prevent your right to do so, however we can work with you on other options. Also if this is the case… maybe you might want to look at that. Just saying.
6.6 You hold all valid rights, licences and approvals for any services, systems or hardware we utilise in the delivery of your Services. You resolve us of any liability that may arise if you do not have the right approvals, licenses or rights in place. If we find you do not have such authorisation then we are within our rights to cease provision until you obtain at your cost any third-party authorisation, license or consent that we may reasonably require.
7.0 Limitation of liability
7.1 We are not liable to you, whether in tort, contract or otherwise, for any loss of profits, indirect, special, incidental, consequential or punitive damages (including without limitation, loss of use, loss of data, loss of anticipated savings, loss of goodwill) however caused, arising out of or in connection with your use of the Services or this Agreement.
7.2 To the fullest extent permitted at law, our liability to you arising out of all claims for damages under this Agreement will not exceed in aggregate the total amount of the fees paid by you under this Agreement for the 12-month preceding the date of claim.
7.3 You acknowledge that:
a. we may rely on the provision of services by third parties (including data centre, telecommunications and outsourcing providers) in order to provide the Services (Third Party Providers) and that the Services may be subject to limitations, delays and other problems inherent in the use of such services provided by Third Party Providers; and
b. we will not be responsible for any delays, delivery failures, or any other loss or damage arising out of or in connection with any services provided by Third Party Providers, including any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.
7.4 Without limiting clause 7.3(a), we will not be in default or liable to you by reason of any failure or delay in performing our obligations under this Agreement caused by any act or event beyond our reasonable control. In the event of such an event, we will use all reasonable endeavours to resume our obligations under this Agreement as soon as reasonably possible.
7.5 All claims under this Agreement must be made within 12 months of the cause of action arising.
8.0 Charges and payments (the money stuff)
8.1 You agree to pay our Fee and any additional fees or costs payable under these terms and conditions for use of the Services and for any ancillary services.
8.2 We may change our Fee and standard hourly rates from time to time by giving you no less than 30 days’ prior written notice.
8.3 Unless otherwise specified in the Form, you must pay us licences Fees in advance on a monthly basis or annual basis. All other fees or costs will be payable in advance or, where provided on a time and costs basis, invoiced monthly in arrears and payable by the 14 days following the date of invoice.
8.4 If we provide services such as implementation or training for you, we will tell you how much those services will cost (or, where those services are provided on a time and costs basis, we will provide you with a cost estimate).
8.5 All fees and other costs payable under this Agreement are exclusive of sales tax (where applicable) unless otherwise stated, and you will be liable for any sales tax payable on such fees and costs. We will provide a valid tax invoice for all fees and other costs payable under this Agreement.
8.6 If you do not pay any amount payable under this Agreement by the due date for payment, we may charge you interest on the unpaid amount from the due date for payment until the date you pay it. The interest rate will be 5% above our bank’s then standard business overdraft rate.
9.0 Resolving disputes and termination (in the rare case things don’t work out).
We are pretty confident this will never be needed but just in case…
9.1 If a dispute arises out of this Agreement, a party may not commence court or arbitration proceedings unless it has complied with the remainder of this clause.
9.2 A party claiming a dispute has arisen must give written notice to the other party specifying the nature of the dispute. On receipt of that notice, the parties will use all reasonable endeavours to resolve the dispute by discussion, consultation, negotiation or other informal means.
9.3 If the dispute is not resolved within 15 business days of notice being given, either party may by giving written notice to the other party, require the dispute to be determined by the arbitration of a single arbitrator. The arbitrator will be appointed by the parties or, failing agreement within five days of the notice requiring arbitration, by the President of the New Zealand Law Society on application of either party. The arbitration will be conducted as soon as possible and in accordance with the provisions of the Arbitration Act 1996.
9.4 Nothing in this clause 9 prevents a party seeking urgent interlocutory relief.
9.5 Either of us may terminate this Agreement:
a. by giving the other 30 days notice in writing, provided that you may not give this notice within the first 12 months from the commencement date;
b. if the other party breaches any of its obligations under this Agreement and fails to remedy the breach within 14 days after notice requiring it to be remedied; or
c. the other party becomes bankrupt or is put into liquidation or has a receiver or statutory manager appointed over any of its assets, or becomes insolvent or ceases to carry on its business or otherwise makes any composition or arrangement with its creditors.
9.6 The parties acknowledge and agree that the Form may include provisions allowing either party to terminate this Agreement in a manner other than in accordance with clause 9.2. Accordingly, this Agreement may also be terminated in accordance with those provisions.
9.7 If any amounts due and payable by you under this Agreement remain unpaid, or you are in breach of any of your obligations under this agreement, we may immediately suspend your ability to access and use the Services.
9.8 On termination of this Agreement:
a. you will immediately pay to us all sums due to us under this Agreement;
b. you must deliver to us all documentation related to the Services and if you are using a Client Hosted Site compile with all conditions under that agreement.
c. provided that you have paid all sums due to us under this Agreement, we will give you the ability, for up to 14 days following termination to export to your own system any of your data and information that we hold as part of the Services in our standard formats, or such other format we usually transfer such data and information.
9.9 You may request us to export your data and information to you and you will pay our reasonable costs and expenses on a time and materials basis if we carry out the export for you.
9.10 Termination of this Agreement is without prejudice to any other rights or remedies available to the parties to the Agreement, and to your payment obligations under this Agreement.
10.0 Security (we have a separate policy on this because we figure it is important)
10.1 We may require you to provide a Personal Identification Number (“PIN”) or list of authorised people to which will enable us to verify the identity of those who are authorised to have access to your account details with us and to make changes to your account and or request new Services under this agreement. You are entirely responsible for maintaining the security of your PIN and currency of approved people on your list.
10.2 As Services are provided via the internet or other systems operated by third parties we cannot guarantee that information you receive, or supply will be secure at all times. You acknowledge that we are unable to exercise control over and make no representations or warranties concerning, the security or content of data or information passing over our network, any systems operated by third parties, and the internet.
11.1 We may give you notice by email, post or by fax to the address you have given us when you have registered. Any communication by email or fax is deemed to be received when transmitted to the correct email or fax address of the recipient. Communication in writing is deemed to be received 3 days after posting, or when left at the specified address.
11.2 New Zealand law governs this Agreement.
11.3 This Agreement constitutes the entire agreement between us in relation to the Services.
11.4 You may not assign or transfer this Agreement, or your access or use of the Services, or any of your other rights and obligations under this Agreement without our prior written consent.
11.5 All relevant provisions and this clause will survive termination or expiry of this Agreement.
11.6 If any provision of this Agreement is invalid, unlawful or unenforceable the remaining provisions of this Agreement are not affected and continue in full force.
11.7 No delay or failure to act is a waiver of any other or any subsequent breach. The failure of a party to enforce a provision of this Agreement is not to be interpreted as a waiver of that provision. No waiver is effective unless it is in writing.
12.0 Entire agreement, variation and conflict
12.1 Except where clauses exist within individual MOS / TOR, this Agreement along with our acceptable use and security policies contains all of the terms, representations and warranties made between the parties and supersedes all prior discussions and agreements covering the subject matter of this Agreement.
12.2 No variation or waiver of any provision of this Agreement shall be recognised or binding on us unless it is in writing and signed by our authorised representative.
12.3 We acknowledge that you may receive other products or services from us in respect of which specific terms and conditions (whether separately negotiated with us, or generally applicable in respect of that category of goods and service) might apply. Subject to the following if such terms and conditions do not deal with any matter, the terms and conditions set out in this Agreement shall apply.
However if the terms and conditions of a TOR / MOS differ or conflict with any terms of this Agreement the terms and conditions of the TOR / MOS will prevail, but otherwise this Agreement will apply to the supply of Services under the TOR / MOS.