Terms and Conditions

1. DEFINITIONS

“Active User” means an authenticated user that has accessed the Subscription Service during any calendar month and either creates, reads, updates or deletes one or more records in a given month. Users are unique and only counted once per calendar month.

“Affiliates” means any company that is a related company of a party as defined in section 2(3) of the Companies Act 1993.

“Agreement” or “Customer Terms of Service” means these Terms & Conditions and all materials referred or linked to in here.

“Billing Period” means the period for which Customer agrees to prepay fees under a Software Proposal.

“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential. Confidential Information includes all information concerning the Disclosing Party’s customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
(iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or
(iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.

“Consulting Services” means the professional services provided to the Customer by the Service Provider, which may include training services, installation, integration or other consulting services.

“Customer” or “you” means the person entering into the Subscription Service with the Service Provider.

“Customer Data” means all information uploaded by the Customer as part of its use of the Software, including Personal Information.

“Licensed Application” means the Software and Subscription Service being licensed to the Customer as set out in the Software Proposal.

“Personal Information” means information about an identifiable individual.

“Privacy Laws” means any legislation or administrative requirement (as amended from time to time) imposing an obligation in relation to the collection, use, disclosure, storage and transmission of Personal Information which is applicable to a party in the performance of its obligations under this Agreement, including without limitation any codes, principles or guidelines contained in or arising out of such legislation.

“Pricing Band” means a range of subscription fees applicable to the Service, within which the price may vary based on factors including, but not limited to, the number of full-time employees within the Customer’s organisation, and any other criteria as determined by the Service Provider.

“Services” means the Consulting Services provided and the provision of the Subscription Services by the Service Provider.

“Service Provider,” “we,” or “our” means SiteConnect.io Limited (NZBN: 9429036472697) and SiteConnect.io Pty Ltd (ABN: 681 788 830).

“Software Proposal” means the Service Provider-approved proposal document, form or online subscription process by which Customer agrees to subscribe to the Subscription Service and purchase Consulting Services.

“Subscription Fee” means the amount Customer agrees to pay for the Subscription Service in the currency specified by the Service Provider.

“Subscription Service” means all of Service Provider’s web-based applications, tools and platforms (also referred to as “Software”) that the Customer has subscribed to or that it otherwise makes available to the Customer, and are developed, operated, and maintained by the Service Provider, accessible via https://siteconnect.io or another designated URL or mobile device app, and any ancillary products and services, including website hosting, that the Service Provider provides to the Customer.

“Subscription Term” means the initial term of Customer’s subscription to the applicable Subscription Service, as specified in the Software Proposal(s), and each subsequent renewal term (if any).

2. SCOPE OF SERVICES

2.1 The purpose of this Agreement is to grant the Customer a licence to access and use the Software and to access the associated Services using a software-as-a-service delivery model.

3. LICENSING OF SOFTWARE

3.1 The Service Provider grants to the Customer a non-exclusive, non-transferable licence to:

(a.) use the Licensed Application; and
(b.) use the documentation supplied with the Licensed Application.

The licence is limited to the number of either Active Users or full-time equivalent (FTE) set out within the Software Proposal. Each Active User can simultaneously log into the Subscription Service on up to 2 devices.

The Service Provider reserves the right to invoice the Customer to the extent the Customer exceeds the monthly full-time equivalent (FTE) limit in any given calendar month by the agreed Pricing Band amount set out in the Software Proposal.

The licence and this Agreement continues for as long as the Customer pays the agreed Subscription Fee and complies with the terms of this Agreement and this Agreement is not otherwise terminated in accordance with clause 12.

3.2 The Customer must not:

(a) alter or remove a copyright statement or other notice of ownership of intellectual property rights which accompanies the Licensed Application;

(b) assign, sublicense, sell, transfer, resell or trade its licence, or otherwise make the Software available to any third party, or permit the use of the Software by any person other than as permitted under this Agreement; or

(c) modify, translate, disassemble, reverse engineer or decompile any Software or create a derivative work based on the Software or related documentation.

3.3 The licence granted to Customer under this clause remains in force until this Agreement expires or terminates for any reason.

4. ACCEPTANCE

4.1 The Customer will be deemed to have accepted the Software when the Customer orders the Services or commences using them. The Customer shall conduct all reviews, testing and investigation of the Software that it deems necessary to be satisfied that the Software is suitable.

5. CUSTOMER OBLIGATIONS

5.1 Customer will provide the Service Provider with such information as the Service Provider reasonably requires from the Customer in order to provide the Services, provided that the Service Provider gives Customer a reasonable time to respond to requests from the Service Provider. The Customer acknowledges that the Service Provider may be prevented or delayed from providing the Services to the Customer until such time as it receives the requested information from the Customer.

5.2 Notwithstanding anything else in this Agreement, the Customer acknowledges that it is responsible for ensuring that its computer system meets all relevant technical specifications necessary to use the Software and that it is compatible with the Licensed Application.

5.3 The Customer is solely responsible in all respects for all use of, and for protecting the confidentiality of, any username and password that may be given to it or selected by it for accessing the Licensed Application. The Customer agrees not to share these username or passwords with or transfer them to any third party. The Customer shall notify the Service Provider immediately of any unauthorised use it becomes aware of or any other breach of security regarding the Licensed Application.

6. PAYMENT

6.1 The Subscription Fee will be as per the Software Proposal during the initial Subscription Term of your subscription unless:

(a) you exceed any full-time equivalent (FTE) or other applicable limits;

(b) you upgrade products or base packages; or

(c) you subscribe to additional features or products, including additional full-time equivalent (FTE); or

(d) as otherwise agreed to in your Software Proposal.

6.2 Upon renewal of the Subscription Term, the Service Provider may increase the Customer’s Subscription Fee. If the Subscription Fee increases by more than the percentage annual increase in the New Zealand Government published Consumer Price Index for the most recent quarter at the time of renewal, the Service Provider will notify the Customer at least 60 days prior to the start of the renewal. If the Customer does not agree to this increase, either party can choose to terminate the Customer’s subscription in accordance with clause 12.2. To avoid doubt, the Service Provider is not required to notify the Customer of a fee increase if the fee increase is equal to or less than the percentage annual increase in the New Zealand Government-published Consumer Price Index for the most recent quarter at the time of renewal.

6.3 If you are paying by credit card, you authorise us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorise us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.

6.4 If you are paying by invoice, we will invoice you no more than thirty (30) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. The Service Provider may also send tax invoices for any training, customisation and related costs as and when appropriate. All amounts invoiced are due and payable by the 20th of the month following the date of the invoice, unless otherwise specified in the Software Proposal.

6.5 All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. If you are located in New Zealand or Australia and subject to GST, all fees are exclusive of GST. If you are located in the United Kingdom or the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes. At our request, you will provide us with the VAT registration number under which you are registered. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are located in Canada, all fees are exclusive of GST, PST and HST.

7. WARRANTIES

7.1 The Service Provider gives no warranty about the Subscription Service. Without limiting the foregoing, the Service Provider does not warrant that the Software will meet the Customer’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.

7.2 The Service Provider warrants that for the Consulting Services:

(a) it will provide the Consulting Services in a proper, workmanlike and professional manner;

(b) at all times its conduct will not bring discredit to Customer or cause any nuisance or disruption to Customer; and

(c) it possesses and will deploy the skills and experience necessary to provide the Consulting Services; and

(d) it will comply with all applicable laws, regulations and licence requirements.

8. LIABILITY

8.1 Whilst the Service Provider will take all reasonable steps to protect the Customer Data, it is an essential precondition for the Customer and its Affiliates to access the Software pursuant to this Agreement that they agree and accept that the Service Provider is not legally responsible for any loss or damage the Customer or its Affiliates might suffer related to its use of the Software, whether from errors or from omissions in the Service Provider’s information, loss of data, inability to access data or from any other use of the Software. Use of the Software is at the Customer’s and its Affiliates’ own risk.

8.2 Notwithstanding anything else in this Agreement, under no circumstances shall the Service Provider be liable to the Customer or any other person (whether arising in contract, tort or otherwise howsoever arising) for any indirect, special or consequential or economic loss that results from use of the Software by the Customer or the inability to access information from the Licensed Application.

8.3 Except to the extent that the law does not permit the Service Provider to exclude itself from all liability in relation to any loss suffered by the Customer or its Affiliates in the provision of the Services pursuant to this Agreement, then the Service Provider’s liability during each Subscription Term is agreed as being limited to a sum of $1,000.

9. INTELLECTUAL PROPERTY RIGHTS

9.1 The Software (and any feedback provided by Customer) shall at all times be owned by the Service Provider. However, the Service Provider acknowledges that all data that the Customer inputs via the Software will be the property of Customer.

10. CONFIDENTIALITY

10.1 Each party shall treat all information regarding the business or affairs of the other party that comes into its possession as a result of or in the performance of this Agreement as Confidential Information.

The Receiving Party will:

(a) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care;

(b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement;

(d) limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, service providers and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein; and,

(e) on demand by the Disclosing Party and at their option, either:

(i) return all Confidential Information to the Disclosing Party; or

(ii) destroy the Confidential Information, including any other document or thing to the extent that it reproduces Confidential Information.

10.2 The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any applicable law, provided however, that:

(a) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate;

(b) the Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order; and

(c) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure.

10.3 The Receiving Party will take all reasonable precautions to prevent its employees, officers, directors and Service Providers, or any other person who otherwise needs to know and is permitted by this Agreement to know Confidential Information and who is given access to or receives any Confidential Information from using for themselves or for others, or from passing on to others, any Confidential Information.

10.4 Confidential information will remain the property of the Disclosing Party, its Affiliates and Service Providers (as the case may be) at all times. Nothing in this Agreement will be treated as granting to the Receiving Party any licence or any other right in, to or in respect of any Confidential Information.

11. PRIVACY AND MANDATORY DATA REPORTING

11.1 Service Provider agrees that it must comply with all Privacy Laws applicable to the Service Provider in relation to the Customer Data in accordance with the Service Provider’s privacy policy (available at https://siteconnect.io/). Customer confirms that it has complied with applicable Privacy Laws and its privacy policy when uploading the Customer Data.

11.2 When you enter or upload your data into our Services, we don’t own that data but you grant us a licence to use, copy, transmit, store, analyse, and back up all data you submit to us through our Services, including personal data of yourself and others, to:

(a) enable you to use our services;

(b) allow us to improve, develop and protect our services;

(d) communicate with you about your subscription; and

(e) send you information we think may be of interest to you based on your marketing preferences.

11.3 We respect your privacy and take data protection seriously. In addition to these terms, our privacy notice sets out in detail how we process your own personal data that you enter into our Software, like your name and email address.

11.4 When you use our services, we may create anonymised statistical data from your data and usage of our services, including through aggregation. Once anonymised, we may use it for our own purposes, such as to provide and improve our services, to develop new services or product offerings, to identify business trends, and for other uses we communicate to you.

11.5 Where we think there has been unauthorised access to personal data inside your Subscription Service, we’ll let you know and give you information about what has happened. Depending on the nature of the unauthorised access, and the location of your affected contacts, you may be required to assess whether the unauthorised access must be reported to the contact and/or a relevant authority. We think you’re best placed to make this decision, because you’ll have the most knowledge about the personal data stored in your subscription.

12. TERM AND TERMINATION

12.1 The Customer’s initial Subscription Term will be specified in the Software Proposal, and, unless otherwise specified in the Software Proposal, the subscription will automatically renew for the shorter of the Subscription Term, or one year.

12.2 Unless otherwise specified in the Software Proposal, to prevent renewal of the subscription, the Customer or Service Provider must give written notice of non-renewal. The deadline for sending this notice is 30 days prior to the end of Customer’s current Subscription Term.

12.3 If Customer decides not to renew, Customer may send this non-renewal notice to us by indicating that Customer does not want to renew in an email to support@siteconnect.io.

12.4 The Customer may choose to cancel the subscription early at its convenience, provided that Service Provider will not provide any refunds of prepaid fees or unused Subscription Fees, and Customer will promptly pay all unpaid fees due through the end of the Subscription Term. If Customer decides to cancel, Customer may send this cancellation notice to Service Provider by indicating that Customer wishes to cancel in an email to support@siteconnect.io.

12.5 The Customer may, by notice in writing to the Service Provider, terminate this Agreement:

(a) immediately or at any other time if the Service Provider:

(i) has a provisional liquidator appointed or has a controller, receiver, receiver and manager, administrator or manager of any of its assets appointed;

(ii) becomes an externally administered body corporate; or

(iii) passes or attempts to pass a resolution for winding up; or

(iv) enters into or attempts to enter into any composition or scheme of arrangement; or

(b) If the Service Provider breaches any term of this Agreement and such breach continues for a period of 28 days after the Customer has requested the Service Provider to rectify the breach.

12.6 The Service Provider may, by notice in writing to the Customer, terminate this Agreement:

(a) immediately or at any other time if the Customer:

(i) has a provisional liquidator appointed or has a controller, receiver, receiver and manager, administrator or manager of any of its assets appointed;

(ii) becomes an externally administered body corporate; or

(iii) passes or attempts to pass a resolution for winding up; or

(iv) enters into or attempts to enter into any composition or scheme of arrangement; or

(v) fails to pay any instalment of the Subscription Fee which is properly due and payable by the due date for payment and such default continues for a period of 7 days after the Service Provider has requested payment in writing to Customer; or

(b) if the Customer breaches any term of this Agreement and such breach continues for a period of 28 days after the Service Provider has requested the Customer to rectify the breach.

12.7 If this Agreement is terminated under Conditions 12.5 or 12.6:

(a) the Customer shall pay to the Service Provider any part of the Subscription Fee which has accrued prior to the termination but has not been paid; and

(b) termination is without prejudice to any rights which may have accrued to either the Service Provider or the Customer prior to the date of termination.

12.8 In the event of any termination of this Agreement, the Service Provider shall provide to the Customer, upon request from the Customer, a copy of data held in the Software at the time of the termination. The data shall be provided in CSV format, a widely supported format compatible with various systems. Upon request, the Service Provider shall, where feasible, make available other data export formats (e.g., XML).

13. DISPUTE

13.1 If Customer or the Service Provider are in dispute regarding any matter arising out of this Agreement, then either party may, by notice in writing served on the other, request that such dispute be resolved by mediation by a mediator appointed by the president of the New Zealand Law Society or as otherwise agreed by the parties.

14. GENERAL

14.1 Amendment

This Agreement may be amended in writing signed by the parties and may not be amended in any other manner.

14.2 Further Assurance

Each party must do, sign, execute and deliver and must procure that each of its employees and agents does, signs, executes and delivers, all agreements, documents, instruments and acts reasonably required of it or them by notice from the other party effectively to carry out and give full effect to this Agreement and the rights and obligations of the parties under it.

14.3 Public Announcements

Unless obliged under this Agreement or as required by the rules of a stock exchange, neither party will make any statement to a stock exchange, give any press release or make any other public announcement, including a statement to shareholders, concerning this Agreement or any dealing or proposed dealing between the parties without the prior written consent of the other party.

14.4 Customer’s Affiliates

The Customer enters this Agreement both on its own behalf and on behalf of any Affiliates.

14.5 Severance

If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.

14.6 Waiver

A provision of or a right created under this Agreement may not be waived, except in writing signed by the party granting the waiver.

14.7 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 the Service Provider is support@siteconnect.io.

14.8 Review

The Service Provider reserves the right to review and amend this Agreement at any time. Any change will take effect from the date that the new terms are uploaded to the Service Provider’s website or notified to the Customer.

14.9 Entire Agreement

This Agreement together with the Service Provider’s privacy policy sets out everything agreed by the parties relating to the Services. To the maximum extent permitted by law, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986.

14.10 Governing Law

This Agreement is governed by the law of New Zealand and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand in respect of any proceedings in connection with this Agreement.