In these Terms:
1. Onwardly, we, us and our means Onwardly Limited, a company incorporated in Auckland, New Zealand (the provider of the Service), and
2. Customer, you or your means the person or entity who uses the Service and is the holder of an Account.
All other capitalised terms not otherwise defined have the meaning given to them in clause 18.
1.1 Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-transferable licence to access and use the Service strictly in accordance with these Terms.
1.2 If you wish to access and use the Service, you must become a registered user and activate an Account.
1.3 Only your Authorised Users may access the Service on your behalf. You may authorise any of your employees, contractors or representatives to be an Authorised User.
1.4 You must notify each Authorised User of the terms of the Terms and ensure that each of them strictly comply with such terms. You shall be responsible (and liable) for any failure of any Authorised User to comply with the Terms (as if it were a breach by you of the Terms).
2 Restrictions on access and use
2.1 You agree:
2.1.1 not to (and to ensure that your Authorised Users do not) modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell the Service or its Content;
2.1.2 not to use (and to ensure that your Authorised Users do not use) the Service or your Website unlawfully or for any illegal purpose;
2.1.3 not to (and to ensure that your Authorised Users do not) distribute through the Service or Website any attachments, documents, data or files that: (i) infringe on any copyright, patent, trade secret, trademark or other third party proprietary rights; (ii) violate any law (including any Data Privacy Law), statute, ordinance or regulation; or (iii) are defamatory, libellous or obscene;
2.1.4 to ensure that any information you (and your Authorised Users) provide in connection with your Account and use of the Service and Website is accurate and current, and that you will promptly notify us of any change in such information. You acknowledge that the operation of the Service and Website depends on the entry by you and your Authorised Users of accurate and up to date Data;
2.1.5 to keep (and ensure your Authorised Users keep) your Account details and passwords strictly confidential and not share your Account password with any other person;
2.1.6 to use (and ensure your Authorised Users use) the Service and Website in a way that does not damage, disable, overburden, or impair the Service;
2.1.7 not to attempt to modify, translate, adapt, edit, decompile, disassemble, reverse engineer or undermine the security or integrity of any software programs used by us in connection with the Service or the Website.
2.2 You may not access the Service if you are a direct competitor of ours, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
3.1 If you use the Service, you must pay the associated Fees (in full, without any set off or deduction). All Fees are as detailed on the Website (as updated from time to time), unless otherwise expressly agreed in writing between you and us or you and an Authorised Reseller in a Reseller Agreement.
3.2 Unless you have agreed alternative Fee arrangements with an Authorised Reseller in a Reseller Agreement:
3.2.1 Fees are payable to us annually in advance or monthly, but we will provide you with 90 days’ notice of any upcoming payment date if annually.; and
3.2.2 if you make a change to the plan you are on, the new rate will be applied from the start of your next annual billing cycle. Refunds will not be given for any change to your plan or cancellation of the Service throughout the year.
3.3 Unless you have entered into a Reseller Agreement under which you have agreed to make payment of the Fees for the Service directly to an Authorised Reseller, you will be prompted, within the Website, to make payment of the your Fees via credit card or invoice. You must keep your credit card details up to date in your Account.
3.5 If you do not make payment of your Fees by the due date for payment (including where a payment from your credit card has been declined) we may cancel your Account immediately.
4 Trial Service
4.1 We may offer you a free trial of the Service. Any free trial offered by us will commence on the day that we make the trial service available to you and will end on the last day of the trial period specified on the Website.
4.2 At the end of a trial period, we will disable your access to the Service (and will delete your Data), unless you become a registered user of the Service on a paid basis. Services provided during any trial period are supplied on an “as is – where is” basis, and as such any warranties given by us in these Terms do not apply.
5 Disruption of Service
5.1 We will take all reasonable steps to ensure that the Service functions as intended. However, you acknowledge that your access to the Service and the Website may be disrupted as a result of a malfunction, updating, maintenance or repair of the Website or Service or for any other reason within or outside our control.
5.2 To the extent permissible at law, we shall not be liable for any loss or damage caused or suffered (by you, your Authorised Users) as a result of any partial or total breakdown of, or inability to use, the Service or Website. We will use reasonable endeavours to promptly address (during normal business hours) technical issues that arise in relation to the Website or the Service.
5.3 You agree that use of the Service is at your own risk and that we do not warrant that the Service or Website will meet your specific requirements, or that use of the Service or Website will be uninterrupted, timely, secure, or error-free. Our obligation in clause 5.1 is in lieu of all other warranties in respect of the Service and Website. To the maximum extent permitted under applicable law, all other warranties, condition and representations, whether express, implied or verbal, statutory or otherwise, and whether arising under these Terms or otherwise, are excluded (including, without limitation, the implied warranties of merchantability, non-infringement and fitness for a particular purpose).
5.4 You agree the Service is acquired for the purposes of a business, and as such, the guarantees provided under the New Zealand Consumer Guarantees Act 1993 (and/or any other applicable consumer legislation in the jurisdiction in which the Service is being accessed) do not apply.
6.1 As between you and us, all Data will be (and will remain) owned by you. However, you grant us a licence to access, use and disclose all Data for the purposes of providing the Service and otherwise exercising our rights under these Terms, enhancing and developing the Service and Website and communicating with you about the Service and any other matters that may be of interest. We may also disclose Data (including Personal Information) in connection with a proposed purchase or acquisition of our business or assets, where required by an applicable law or any court, or in response to a request by a legitimate law enforcement agency.
6.2 You also grant to us a non-exclusive irrevocable license to copy, anonymize, aggregate, process and display Data to derive anonymous statistical and usage data, and data about the functionality of the Service and Website, provided such data cannot be used to identify you or your Authorised Users (Anonymous Data), for the purposes of combining or incorporating such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise (when so combined or incorporated, referred to as Aggregate Data). We will own all right, title and interest in Aggregate Data.
6.3 You warrant and represent that:
6.3.1 you have the right to grant the licences in clauses 6.1 and 6.2 in respect of all of your Data, and inputting, using and disclosing your Data in the manner anticipated by these Terms and the Service; and
6.3.2 use of your Data by us, you or any other Authorised User in connection with the Service (and as otherwise anticipated by the Terms) will not breach any laws or the rights (including intellectual property rights) of any person.
6.4 You are solely responsible for maintaining a copy of all of your Data. We have in place for our own purposes policies and procedures to prevent data loss (and recovery) but do not make any guarantee around loss of Data.
7.1 Title, copyright and all other proprietary rights in the Website, the Service, the Content any software or intellectual property used by us to develop and provide the Service, and any associated updates or documentation (and all parts and copies thereof) will remain with us.
7.2 If you provide us with ideas, comments or suggestions relating to the Website or the Service (together feedback):
7.2.1 we may use or disclose the feedback for any purpose; and
7.2.2 all 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.
8.1 We will make every reasonable effort to keep your Data secure. We will not disclose your confidential information except:
8.1.1 to our personnel and any service providers that we work with where necessary to operate the Website and/or the Service;
8.1.2 in accordance with the Terms;
8.1.3 if required or permitted by law; or
8.1.4 where you (or your Authorised Users) otherwise give us permission to do so.
8.2 Nevertheless, because internet transmissions cannot be guaranteed to be 100% secure in all aspects (including in relation to unauthorised use and disclosure of Personal Information), you acknowledge and agree that you use the Service and Website at your own risk, and you should only proceed to use the Website and/or the Service if you accept this condition.
8.3 You will be liable for all action taken by any person that has obtained access to your Account (whether they have authorised such access or otherwise) and agree to notify us immediately of any unauthorised use of your Account, or other breach of privacy or security.
9.1 We collect and process your Personal Information and Personal Information of you Authorised Users when you (or your Authorised Users, as applicable) access or use the Website or the Service. In order to provide you with the Service (and improve on it), we may also collect certain information about the performance of the Service and Website, and your (and your Authorised Users’) use of them.
9.3 You must:
9.3.1 comply (and ensure compliance by your Authorised Users) with all Data Privacy Laws in connection with the collection, use and disclosure of any Personal Information of any person;
9.3.2 not (and will ensure your Authorised Users do not) use the Service in a way that violates (or may be considered inconsistent with) the privacy, rights or civil liberties of any person (including in a way that prevents the exercise of them);
9.3.3 not (and will ensure your Authorised Users do not) share another person’s Personal Information without that person’s explicit permission;
9.3.4 obtain all consents from all individuals necessary under applicable laws (including Data Privacy Laws), for us to process and/or disclose Personal Information as necessary to perform the Service and otherwise comply with our obligations under the Terms, and ensure that such consent is obtained from the correct person;
9.3.5 notify us without undue delay if any Authorised User withdraws his or her consent, or any part of their consent, or objects to any processing of his or her Personal Information;
9.3.6 upon becoming aware of any unauthorised access, use or disclosure of Personal Information, or any other breach, or suspected breach, of your (or our) security safeguards, notify us without undue delay and provide timely information relating to the incident as it becomes known or as is reasonably requested by us.
10.1 You agree to indemnify us against any and all liabilities, costs (including legal fees), claims, demands or damages incurred or suffered by us as a result of or in connection with any:
10.1.1 unauthorised access to or use of the Service by you or any of your Authorised Users;
10.1.2 violation of any privacy, intellectual property rights or other rights of a third party by you, your Authorised Users or any person using your Account.
10.2 In no event or circumstances shall the Customer or Onwardly be liable to any person, whether in contract, tort, strict liability, negligence or otherwise at law for any special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, or for any loss of profit, data or anticipated revenue.
10.3 To the extent permissible at law our total liability for any loss arising from or in connection with these Terms, the Website, the Service and the Content, will not in any circumstances exceed (in aggregate) the Fees paid by you in the first 12 months of the term of your agreement with us.
10.4 You recognise that, although Onwardly endeavours to ensure that the guidance on the Service is accurate and up to date, information can become outdated quickly and some information is provided by third parties, As such, Onwardly will not be liable to you for any incorrect, inaccurate or outdated guidance taught by the Service.
11 Cancellation and suspension
11.1 You may cancel your Account at any time with 30 day’s notice by following emailing us at email@example.com.
11.2 We may suspend or terminate your Account (and access to the Service) at any time if we reasonably suspect you have breached these Terms or we consider it necessary or desirable to do so to protect our interests or reputation or the interests of any other person.
11.3 Upon termination of your Account (for any reason):
11.3.1 you acknowledge and agree that no Fees (paid in advance and which relate to the period following termination) will be refunded to you;
11.3.2 you must immediately cease (and ensure all your Authorised Users immediately cease) to access or use the Service, and destroy all access codes or passwords related to the Service and our Confidential Information in your possession or under your control; and
11.3.3 your Data, other than Anonymous Data or Aggregate Data, will be deleted from the Website.
11.4 Any termination will be without prejudice to any prior breaches by you of these Terms; and, any provision of these Terms intended to survive termination shall survive.
12.1 We may suspend access to the Service at any time:
12.1.1 for such time as is necessary to carry out maintenance we consider to be necessary or desirable;
12.1.2 to reduce or prevent interference with the Website or the Service, or a breach of any applicable law; or
12.1.3 if required to do so as a result of a direction by any Government, law enforcement or other authority.
13 Use of third parties
13.1 You agree that we may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Website and/or the Service, and store and manage Content.
14.1 The Website and Service may provide links to other sites or resources. Because we have no control over such sites and resources, you acknowledge and agree that we:
14.1.1 are not responsible for the availability of such external sites or resources, and do not endorse and are not liable for any content, advertising, products or other materials on or available from such sites or resources; and
14.1.2 will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
15.1 These Terms may be amended or replaced from time to time, by posting updated Terms on the Website. Any updated Terms become effective as soon as they are posted.
15.2 If updated Terms constitute a material change to these Terms, we will endeavor to post an announcement on the Website. Your continued use of the Service and/or Website following any amendment constitutes your acceptance of the updated Terms.
15.3 If you do not agree to the updated Terms you must cease to use the Service and terminate your Account.
16.1 Neither you nor we will not commence any court or arbitration proceedings relating to a question, difference or dispute relating to these Terms or the Service (Dispute) without first complying with this section.
16.2 Where any Dispute arises, you (or your representative) and Onwardly will negotiate in good faith in an attempt to resolve the Dispute amicably.
16.3 Where the Dispute cannot be resolved by way of good faith negotiations within 14 days (or such longer period agreed by you and us) of negotiations commencing, either you or we can elect to mediate any dispute in terms of the New Zealand Resolution Institute standard mediation agreement.
16.4 If the Dispute cannot be resolved by way of mediation then either party may initiate arbitration or litigation in New Zealand.
16.5 Nothing in this section will preclude a party from taking immediate steps to seek urgent injunctive relief before an appropriate court.
17.1 These Terms shall be governed by and construed in accordance with the laws of New Zealand, and the parties submit to the exclusive jurisdiction of the New Zealand courts for any matter arising under or relating to these Terms.
17.2 You must not transfer, assign or sublicense your rights or obligations under these Terms without our consent.
17.3 If any provision of these Terms is found to be unenforceable or invalid, that provision shall be limited or removed to the minimum extent necessary so that these Terms shall otherwise remain in full effect.
18.1 In these Terms, the following terms have the following meanings:
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