- APPLICATION OF TERMS
- These Terms apply to your use of the Service (as that term is defined below). By accessing and using the Service:
- you agree to these Terms; and
- where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
- If you do not agree to these Terms, you are not authorised to access and use the Service, and you must immediately stop doing so.
- We may change these Terms at any time by updating them on the Service. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Service, you agree to be bound by the changed Terms.
- We may change, suspend, discontinue, or restrict access to, the Service without notice or liability.
- These Terms were last updated on 4 February 2020.
In these Terms:
Fees means the applicable fees set out on our pricing page on the Website at https://safetywise.co.nz/try-buy/ or as agreed otherwise in writing between you and us, as may be updated from time to time in accordance with clause 7.6
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
- an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
- a lack of funds for any reason
including and similar words do not imply any limit
Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks 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
Loss includes loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way
personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us
personal information means information about an identifiable, living person
Service means the SafetyWise health and safety reporting and compliance platform accessed through the Website or by downloading the SafetyWise mobile application
Start Date means the date you first access and use the Service
Underlying System means any network, system, software, data or material that underlies or is connected to the Service
We, us or our means Safetywise Group Limited, company number 2220246
Website means [www.safetywise.co.nz], or such other site notified to you by us
You means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting
Your Data means all data, content, and information (including personal information) owned, held, used or created by you, that is stored using, or inputted into, the Service
- ABOUT SAFETYWISE
- SafetyWise is a health and safety reporting and compliance platform that minimises paperwork and administration, allowing you to keep accurate records of what happens day to day in the workplace.
- We will use reasonable efforts to provide the Service to you in accordance with these Terms and New Zealand law.
- Our provision of the Service to you is non-exclusive. Nothing in these Terms prevents us from providing the Service to any other person.
- Subject to clause 5, we must use reasonable efforts to ensure the Service is available with 99.9% uptime. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We must use reasonable efforts to publish on the Website and/or notify you by email advance details of any unavailability.
- Through the use of web services and APIs, the Service interoperates with a range of third party service features. We do not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.
- YOUR OBLIGATIONS
- You and your personnel must:
- provide true, current, and complete information in your dealings with us (including when setting up an account) and must promptly update that information as required so that the information remains true, current, and complete;
- use the Service for lawful purposes only and must not copy, reproduce, translate, decompile, reverse-engineer, resell, modify, vary, sub-licence, or otherwise deal in the Service except to the extent expressly permitted by applicable law; and
- not act in a way, or use or introduce anything (including any virus, worm, Trojan horse, timebomb, keystroke logger, spyware or other similar feature) that in any way compromises, or may compromise, the Service or any Underlying System, or otherwise attempt to damage or interfere with the Service or any Underlying System.
- You indemnify us against all Loss we suffer or incur as a direct or indirect result of your failure to comply with these Terms, including any failure of a person who accesses and uses the Service by using your registered account.
- A breach of any of these Terms by your personnel is deemed to be a breach of these Terms by you.
- You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Service, including to use, store and input Your Data into, and process and distribute Your Data through, the Service.
- YOUR DATA
- You acknowledge that:
- we may require access to Your Data to exercise our rights and perform our obligations under these Terms; and
- to the extent that this is necessary but subject to clause 9, we may authorise a member or members of our personnel to access Your Data for this purpose.
- You must arrange all consents and approvals that are necessary for us to access Your Data as described in clause 1.
- You acknowledge and agree that to the extent Your Data contains personal information, in collecting, holding and processing that information through the Service, we are acting as your agent for the purposes of the Privacy Act 1993 and any other applicable privacy law. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.
- While we will take standard industry measures to back up Your Data stored using the Service, you agree to keep a separate back-up copy of Your Data uploaded by you onto the Service.
- You agree that we may store Your Data (including any personal information) in secure servers in various countries and may access that Data (including any personal information) in those countries and New Zealand from time to time.
- You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any of Your Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that Your Data is Objectionable, incorrect or misleading.
- The Fees will be charged to your valid debit/credit card on a monthly basis starting one month from the Start Date and in advance of each billing month.
- Unless you cancel your right to use the Service prior to the end of the billing month in accordance with clause 1b, at the end of each billing month we will automatically roll over your subscription for a further month. We will charge your credit card the Fees in advance of each billing month.
- Where you select a free trial on setting up your account, and unless you cancel your account at the end of the applicable trial period, your subscription will automatically switch to a monthly subscription at the end of the trial period specified in the offer.
- The Fees exclude GST, which you must pay on taxable supplies.
- If we are unable to collect the Fees from your credit card for any reason, including where your card has expired or there are insufficient funds, you remain responsible for any uncollected amounts and we may suspend or cancel your access to the Service without giving you notice.
- We may increase the Fees with effect from the start of the billing month by giving at least 30 days’ notice. If you do not wish to pay the increased Fees, you may terminate these Terms in accordance with clause 1b. If you do not terminate these Terms in accordance with clause 12.1b, you are deemed to have accepted the increased Fees.
- INTELLECTUAL PROPERTY
- Subject to clause 2, title to, and all Intellectual Property Rights in, the Service, and all Underlying Systems is and remains our property (including all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel and any enhancement, modification or derivative work). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
- Title to, and all Intellectual Property Rights in, Your Data (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate Your Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.
- To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Service.
- If you provide us with ideas, comments or suggestions relating to the Service or Underlying Systems (together feedback):
- all Intellectual Property 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; and
- we may use or disclose the feedback for any purpose.
- Each party must, unless it has the prior written consent of the other party:
- keep confidential at all times the Confidential Information of the other party;
- effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
- 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, clauses 1a and 9.1b.
- The obligation of confidentiality in clause 1 does not apply to any disclosure or use of Confidential Information:
- for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
- required by law (including under the rules of any stock exchange);
- which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
- which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
- by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 9.
- Each party warrants that it has full power and authority to enter into and perform its obligations under these Terms which, when signed, will constitute binding obligations on the warranting party.
- To the maximum extent permitted by law:
- our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to NZD$100.00; and
- we make no representation concerning the quality of the Service and do not promise that the Service will:
- meet your requirements or be suitable for a particular purpose, including that the use of the Service will fulfil or meet any statutory role or responsibility of yours; or
- be secure, free of viruses or other harmful code, uninterrupted or error free.
- You agree and represent that you are acquiring the Service, and entering these Terms, for the purposes of trade. The parties agree that:
- to the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Service or these Terms; and
- it is fair and reasonable that the parties are bound by this clause 3.
- Our maximum aggregate liability under or in connection with these Terms or relating to the Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed an amount equal to the Fees paid by you under these Terms in the 3 months prior to the date of the first event giving rise to liability). The cap in this clause 1 includes the cap set out in clause 10.2a.
- Neither party is liable to the other under or in connection with these Terms or the Service for any:
- loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
- consequential, indirect, incidental or special damage or loss of any kind.
- Clauses 1 and 11.2 do not apply to limit our liability under or in connection with these Terms for:
- personal injury or death;
- fraud or wilful misconduct; or
- a breach of clause 9.
- Clause 2 does not apply to limit your liability:
- to pay the Fees; or
- for those matters stated in clause 3a to 11.3c.
- Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
- Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms.
- TERM, TERMINATION AND SUSPENSION
- Unless terminated under this clause 1, these Terms and your right to access and use the Service:
- starts on the Start Date; and
- continues for successive months until a party gives at least 10 days’ notice that these Terms and your access to and use of the Service will terminate at the end of the billing month.
- Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use the Service if the other party:
- breaches any material provision of these Terms and the breach is not:
- remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
- capable of being remedied; or
- becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.
- Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.
- On termination of these Terms, you must pay all Fees for the provision of the Service prior to that termination.
- No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.
- Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of these Terms but subject to clause 7, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
- At any time prior to one month after the date of termination, you may request:
- a copy of Your Data stored using the Service, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of Your Data in a common electronic form. We do not warrant that the format of Your Data will be compatible with any software; and/or
- deletion of Your Data stored using the Service, in which case we must use reasonable efforts to promptly delete Your Data.
To avoid doubt, we are not required to comply with clause 12.7a to the extent that you have previously requested deletion of Your Data.
- Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Service and/or delete, edit or remove Your Data if we consider that you or any of your personnel have:
- undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;
- used, or attempted to use, the Service:
- for improper purposes; or
- in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;
- transmitted, inputted or stored any of Your Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
- otherwise materially breached these Terms.
- If we need to contact you, we may do so by email or by posting a notification through the Service. You agree that this satisfies all legal requirements in relation to written communications.
- These Terms, and any dispute relating to these Terms or the Service, are 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 these Terms or the Service.
- For us to waive a right under these Terms, the waiver must be in writing.
- Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 2, 8, 9, 10.1 and 13.1, continue in force.
- If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability, or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.
- These Terms set out everything agreed by the parties relating to your use of the Service and supersede and cancel anything discussed, exchanged, or agreed prior to you agreeing to these Terms. The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, and no such representation, warranty, or agreement has any effect from the date you agreed to these Terms.