1               Acceptance

1.1       Agreement.  Customer’s access and use of the Service is conditional on the Customer’s acceptance of and compliance with the terms of this Agreement.

1.2       Deemed Acceptance.  The Customer shall be deemed to have agreed to the terms of this Agreement by the Customer’s continued use of or continued access to the Service.

 

2               The Service

2.1       Service.  We will provide the Service to the Customer on a non exclusive basis in accordance with the terms of this Agreement.

2.2       Sole Discretion.  We reserve the right in our sole discretion to prohibit or restrict access to the Service to any person at any time.

2.3       Acceptable Use.  The Customer may only use this Service for the purposes of analysing, managing, contributing or reviewing a project.

2.4       Provision of Service.  We endeavour to provide continuous uninterrupted service at all times; however the Service provided to the Customer is not fault-free and relies on factors outside Our control. The Service is provided to the Customer at such times and means as We decide.

2.5       Suspension of Service.  We may from time to time (and for reasons other than non-payment, reasonable notice will be given when possible) suspend any Service or disconnect or deny the Customer access to any Service:

(a)            during any technical failure, modification or maintenance involved in the Service although We will endeavour to procure the resumption of the Services as reasonably practicable;

(b)            where the Customer undermines the security or integrity of the Service; or

(c)            if the Customer is, in Our opinion, in breach of this Agreement.

2.6       Payment still due.  Notwithstanding any suspension of any Service under clause 2.5 the Customer shall remain liable for all Fees due through the period of suspension.

2.7       Inappropriate use.  The Service must be used for lawful purposes only. The Customer shall not transmit, distribute, publish, issue or store material using the Service, nor provide any Customer Data, that:

(a)            violates any applicable law;

(b)            infringes the copyright, trademark, trade secret or other Intellectual Property rights of others or the privacy, publicity or other personal rights of others;

(c)            is obscene, pornographic, threatening, abusive, offensive, hateful or defamatory to any person or organisation; or

(d)            is harmful to Us, the Service, or any users of the Service.

2.8       No Other Rights.  The Customer must not:

(a)            copy, alter, modify, transmit or reproduce the Service or any part of the Service without Our prior written consent;

(b)            prepare any translations, modifications or derivative works from the Service or any part of the Service;

(c)            sublicense, transfer, assign, rent, lease, loan, sell, resell, distribute or otherwise deal with the any part of the Service or any derivative works based upon the Service in whole or in part; or

(d)            reverse engineer, decompile, disassemble or otherwise attempt to derive or modify the source code or protocols for the Service or cause or permit any other person to do the same.

2.9       Modifications.  We reserve the right to make modifications to the Service (including discontinuing any features) at any time.

 

3               Fees

3.1       Fees.  The Customer must pay all Fees due in accordance with the Account plan used by the Customer.

3.2       Payment Date.  Payment is due by the Customer on the 1st day of the calendar month of Service.

3.3       No credit terms. If payment is not received after the due date the Account will be suspended without further warning and a $50 suspension fee will automatically be applied to a suspended account more than 5 days overdue. Suspended accounts may not be altered or closed until full payment is received.

3.4       Changes.  We may change the Fees by giving the Customer at least 90 days notice.

3.5       Taxes.  All Fees are exclusive of taxes (other than Goods and Services Tax), duties, fees or other charges, including without limitation withholding tax and other government charges, duties, levies or imposts.

 

4               Support

4.1       Log Calls.  Support calls can be logged on a 24/7 basis via the Website or by emailing helpdesk@specmojo.io

4.2       Business Hours.  Support is provided during Business Hours only.

4.3       Resolution.  We will use reasonable endeavours to resolve support calls and communicate with the Customer about any resolution.

4.4       Mandatory Upgrades.  All updates, bug fixes, and upgrades to the Service are mandatory and must be accepted by the Customer in order to continue using the Service.

 

5               Confidentiality

5.1       Confidential Information.  Each party shall keep absolutely secret and confidential at all times all Confidential Information of which it, its employees or agents may become aware and shall not use, communicate, cause to be communicated, copy, make available or otherwise re-supply any Confidential Information to any person other than those of its employees, agents or representatives to whom disclosure is necessary for the purposes of this Agreement. Each party shall take steps, with its employees, agents or representatives, to ensure that none of them uses any Confidential Information in a manner not authorised by this Agreement or discloses the same to any other person without the prior written consent of the other party.

 

6               Intellectual Property

6.1       Ownership. We retain all right, title, interest, Intellectual Property and other property rights in and to the Service, including without limitation all Software, Content and Materials used to provide the Service and all logos and trademarks reproduced through the Service. This Agreement, and use of the Service, does not grant the Customer any right, title, interest, Intellectual Property or other property rights in or to the Service or any of its components.

6.2       Protection.  The Service, and all its components, are Our property (or that of Our licensors) and are protected by copyright, trademark, and other intellectual property laws.

6.3       Improvements.  All Intellectual Property rights in any improvements in the Service or changes to any component of the Service devised or made by any person during the term of this Agreement shall belong to Us or Our licensors, unless otherwise agreed in writing.

6.4       Customer Data.  The Customer possesses and retains all right, title, and interest in and to the Customer Data. Our use of the Customer Data is only as is provided for in this Agreement.

 

7               Data

7.1       Customer Data.  The Customer is responsible for all Customer Data used in or by the Service. The Customer is responsible for the quality and legality of its data. The Customer warrants that the Customer Data is either owned by the Customer or the Customer has the owner’s written permission to use the Customer Data.

7.2       Authorised Use.  The Customer authorises Us to access and use the Customer Data only as is required to provide the Service. We may disclose Customer Data as may be required by any applicable law or by proper legal or governmental authority. We will give the Customer prompt notice of any such legal or governmental demand and reasonably cooperate with the Customer in any effort to deal with such a demand, at the Customer’s expense.

7.3       No use by Us.  Customer Data is held by Us solely as an agent of the Customer. Other than stated in clause 7.2, We will not access or use the Customer Data unless the Customer has agreed in advance.

7.4       Removal of Customer Data.  We may remove any Customer Data from the Service at any time without ramifications.

7.5       Backups.  We perform backups of Customer Data on a daily basis using industry standard techniques and procedures. We make every effort to ensure that these back-ups are valid but accept no liability for lost Customer Data.

7.6       Aggregated Data Use.  Without limiting the confidentiality rights and protections set forth in this Agreement, We own the aggregated, statistical data, which has been rendered anonymous (“Aggregated Data”) derived from the operation of the Service, and nothing herein shall be construed as prohibiting Us from utilising the Aggregated Data for business purposes.

 

8               Warranties

8.1       Warranty of authority.  Each party represents and warrants to the other that:

(a)            it has the necessary power and authority to enter into and perform this Agreement in accordance with its terms;  and

(b)            performance of its obligations will neither conflict with any obligation or duty owed to any third party nor infringe the rights of any third party.

8.2       Customer’s Identity.  The Customer warrants:

(a)            that it has accurately identified itself through its account and will maintain the accuracy of such identification; and

(b)            that it is an organisation authorised pursuant to applicable law or an individual 18 years or older.

8.3       Our Warranty.  We will:

(a)            provide the Service in a professional manner consistent with prevailing industry standards;

(b)            perform the Service substantially in material accordance with the Agreement and applicable Documentation; and

(c)            exercise due care and skill at all times.

8.4       No reliance by Customer.  The Customer agrees and warrants that in entering into this Agreement it has not relied upon any advice, representations or warranties given or made by Us or any of Our suppliers except to the extent that such advice, representations or warranties are expressly set out in this Agreement.

8.5       Disclaimer of warranties.  Unless specified in this Agreement the Service is provided “as is” and all express or implied warranties, conditions or representations, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, are expressly disclaimed, except to the extent that it would be unlawful to disclaim such terms.

8.6       Failure to Resolve Error.  We shall make commercially reasonable efforts to promptly resolve any Error without charge.  If, after a reasonable opportunity to do so, We do not resolve the Error, the Customer must cease using the Service and We will refund any Fees We have received in advance from the Customer for the Service. This is the Customers’ sole and exclusive remedy for any breach of warranty by Us.

8.7       Publication at Customer’s Risk.  The Customer acknowledges that We do not vet or approve, and therefore do not accept any liability for, any information or material available through the Service. To the full extent permitted by law, the Customer accesses and uses such information and material at their own risk. For the avoidance of doubt, We make no representations or warranties:

(a)            as to the accuracy, reliability, completeness or timeliness of the Service, Documentation, Materials or Customer Data;

(b)            that the Service will operate free from Error or interruption; or

(c)            that the Service and/or its host server are free of computer viruses and other harmful effects.

 

9               Term and Termination

9.1       Termination by Us.  We may terminate this Agreement immediately:

(a)            upon written notice to the Customer in the event that the Customer is in breach of this Agreement;

(b)            where We form the opinion in good faith that the Customer is or may be insolvent; or

(c)            if the Customer uses the Service in a manner that in Our reasonable opinion, does or may be likely to injure Our reputation or interests or bring or potentially bring Us into disrepute.

9.2       Termination by Choice.  Either party may terminate this Agreement by providing 30 days notice of termination to the other party.

9.3       Payments Due.  Upon termination by either party, all outstanding Fees become immediately payable on giving of such notice and in no circumstances shall the Customer be entitled to any refund of payments made under this Agreement.

9.4       Deletion of Customer Data.  Upon the termination of this Agreement, We will delete all Customer Data from the Service, with the exception of Customer Data held in any backups.

 

10           Liability

10.1    General Exclusion.  Except as provided below, all terms, warranties, undertakings, inducements and representations, written or verbal, express or implied, relating to the provision of the Service is excluded and We will not be liable for any loss or damage however caused (whether by negligence or otherwise) in respect of the Service, even if We have been advised in advance of the possibility of the loss or damage in question and even if such loss or damage was foreseeable.

10.2    Specific Exclusions.  For the avoidance of doubt, We are not liable to the Customer or any other person for any cost, loss or liability arising from:

(a)            Our supply or failure or delay in supplying the Service including as a result of Our own negligence;

(b)            the content, context, or confidentiality of any communications made using the Service;

(c)            any Error in the Service;

(d)            the Customer Data; or

(e)            any damage to physical property.

10.3    General Limitation. Our liability for all damages arising out of or related to this Agreement, in each case and in the aggregate, regardless of the form of action that imposes liability, whether in contract, equity, negligence, tort or otherwise, will be limited to and will not exceed the total of the previous months Fees paid by the Customer for the Account in question.

10.4    Indirect Damages.  In no event will either party be liable under this Agreement for any loss of income, profits or savings or indirect, incidental, consequential, exemplary, punitive or special damages.

 

11           Indemnities

11.1    General Customer Indemnity.  The Customer shall indemnify Us against all claims, expenses, damages, or other liabilities arising directly or indirectly from the Customers:

(a)             use of the Service; or

(b)             breach of this Agreement.

11.2    Specific Customer Indemnity.  The Customer will indemnify Us and Our licensors against and will at its cost defend or settle any claim, suit, action or proceeding brought against Us or Our licensors attributable to a claim resulting from a breach of clause 2.7 (Inappropriate Use).

11.3    Intellectual Property Rights infringement:  Should any Service provided by Us under this Agreement become or, in Our opinion, be likely to become the subject of a claim of infringement of a third party’s Intellectual Property rights, We may, at Our sole discretion, in order to mitigate any damages suffered by the Customer:

(a)            obtain for the Customer, at no cost to the Customer, the right to continue to use the Service;

(b)            replace or modify the Service, at no additional cost to the Customer, to make it non-infringing, provided that the same function is performed by the Service as modified or replaced; or

(c)            terminate this Agreement and refund the Customer any Fees paid in advance.

11.4    Exclusive remedy.  This section 11 states Our entire liability and exclusive remedies of the Customer for claims of Intellectual Property infringements.

 

12           Notices

12.1    Notices.  We may send notices pursuant to this Agreement to Customer’s contact points listed in Customer’s Account, and such notices will be deemed received one day after they are sent. The Customer may send notices pursuant to this Agreement to the email address: enquiries@specmojo.io and such notices will be deemed received one day after they are sent.

 

13           General

13.1    Entire Agreement.  This Agreement together with and schedules and appendices constitutes the entire Agreement between the parties and supersedes all prior agreements, negotiations and understandings in respect of the subject matter of this Agreement.

13.2    Good faith.  The Parties shall act in good faith towards each other in respect of all dealings or matters under or in connection with this Agreement.

13.3    Further assurances. Each party must do everything (including executing agreements and documents) necessary to give full effect to this Agreement and the transactions contemplated by it.

13.4    Assignment.  Neither party may transfer or assign or deal in any manner with the benefit or burden of this Agreement without first obtaining the prior written consent of the other party. Such consent shall not be unreasonably withheld.  Notwithstanding the foregoing, We will have the right to subcontract:

(a)            portions of the Services, provided that no such subcontract will relieve Us of any of Our obligations under this Agreement; and

(b)            the whole Agreement to one of Our Associated Entities.

13.5    Amendments.  We may amend this Agreement from time to time by posting an amended version on the Website and sending the Customer written notice thereof.  Such amendment will deemed accepted and become effective 5 days after such notice. This Agreement may not be amended in any other way unless it is in writing and signed by all the Parties.

13.6    Interpretation.  Unless the context otherwise requires, if any conflict, ambiguity or inconsistency arises between a provision in this Agreement and any other document used in connection with this Agreement then the terms of this Agreement shall prevail.

13.7    Waiver.  No exercise or failure to exercise or delay in exercising any right or remedy by any party will constitute a waiver by that party of that or any other right or remedy available to it.

13.8    Partial invalidity.  If any provision of this Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this Agreement and its application will not be affected and will remain enforceable to the greatest extent permitted by law.

13.9    Governing law and jurisdiction.  The Agreement will be governed by and construed in accordance with the laws of New Zealand, and the courts of New Zealand shall have exclusive jurisdiction in any proceedings relating to it.

13.10 Force Majeure. Neither party shall be liable for any delay or failure to perform their obligations under this Agreement to the extent that such delay is due to Force Majeure. For the purposes of this clause, Force Majeure means an act, omission or circumstance relied on by one of the parties to this Agreement as a Force Majeure event and over which that party could not reasonably have exercised control.

13.11 Independent contractors. The parties to this Agreement shall act as independent contractors in the performance of their obligations under this Agreement. Neither party is the agent nor the partner of the other and neither may bind the other in any way nor for any purpose whatsoever.

13.12 Costs.  Each party shall bear its own costs (including legal costs as between solicitor and Customer) in relation to this Agreement.

13.13 Obligations to Survive. Termination of this Agreement will not affect those rights and obligations that are intended to survive termination, including but not limited to obligations arising under clauses 5 (Confidentiality), 6 (Intellectual Property), 10 (Liability) and 11 (Indemnities), and the termination will be without prejudice to, and will not be a waiver of, any claims to which a party may have against the other party concerning any breach or other failure to comply with any term or condition of this Agreement before the date of termination.

 

14           Definition

14.1    In this agreement, unless a contrary intention appears:

‘Account’ means the Service plans and features selected by the Customer at the time of enrollment in the Service and accepted by Us, and such plans and features as may change by mutual consent of the parties from time to time.

‘Associated Entities’ means, in respect of a party, any other entity or person which, directly or indirectly, controls, is controlled by, or is under common control with, such Party.

‘Business Hours’ means from 08.30am to 05.30pm (New Zealand Standard Time) on any day of the week other than on a Saturday, Sunday, or a public holiday in Auckland, New Zealand, and excluding the three working days between Christmas Day and New Years’ Day.

‘Confidential Information’ shall include (without limitation), any information concerning a party’s business activities and customers, but shall not extend to information which:

(a)           was known to the receiving party prior to it entering into this Agreement; or

(b)           is, or becomes, public knowledge without the fault of the receiving party; or

(c)            is, or becomes available to the receiving party from a source other than the disclosing party;

(d)           is independently developed by the receiving party; or

(e)           is required by law to be disclosed.

‘Content’ means all Data on the Website but excludes the Customer Data.

‘Customer’ means any user of this Service and or any purchaser of any goods and/or services in any way connected with this Service.

‘Customer Data’ refers to Data in electronic form input or collected through the Service by or from the Customer.

‘Data’ includes, but is not limited to any text, names, logos, images, graphics, photographs, sound, video and/or embedded content.

‘Error’ means a failure of the Service to conform to the specifications set forth in the Documentation, resulting in an inability to use the Service or material restriction in the use of the Service.

‘Documentation’ means written instructions and written comments provided on paper or electronic media by Us from time to time to the Customer.

‘Fees’ means the pricing for the Services in relation to the Customer’s Account.

‘Intellectual Property’ means copyrights, patents, trademarks, registered designs, moral right, Confidential Information and any intellectual or industrial property rights whether registered or not.

‘Materials’ refers to any Data on paper or electronic media provided from time to time by or through the Service, whether provided by Us, or any other third party.

‘Service’ means the provision of and access to the Software via the Website and includes the Materials, Content and related services. The Service includes such features as are set forth on the Website, of which We may change such features from time to time, in Our sole discretion.

‘Software’ means Our (or Our licensors) proprietary computer program know as SpecMojo (including all Documentation, manuals, instructions, corrections, modifications, updates and enhancement to such software), provided for access and use by the Customer as part of the Service under the terms of this Agreement.

‘We/Us/Our’ means Solnet Solutions Limited (or its Associated Entities).

‘Website’ means the Internet site at the domain www.specmojo.io where the Customer can access the Service, or such other address as notified by Us to the Customer.