Application of terms and conditions:
These terms apply to all use of the Services (including any Trial) by You and any Permitted User. We may amend these terms and conditions by notifying You in writing.
Delivery of Services:
We will make the Services available to You via an online web-based platform and/or a mobile phone application platform. The platform(s) may be hosted by Us or by our third party service provider.
Use of Services:
You may only use the Services for their intended purpose, namely for the purpose of assisting with monitoring of access of persons to a location/site for the purpose of facilitating compliance with health and safety obligations for Your business.
Prices for Services are as per our price list notified to You from time to time. We may review our Prices in our discretion. Payment is due in advance. Payment must be by way of credit card, direct credit or other payment means specified by Us. Without limiting our rights and remedies, we may charge default interest at 2% per month and/or suspend or cease the Services (with or without notice) if payments are in arrears.
Additional changes are charged in half-day increments at a specified rate in local currency where applicable.
Third party agreements:
Your use of the Services is subject to the terms of any third party licences or service agreements for those parts of the Services provided by third parties. We may advise You from time to time of any requirements arising under third party agreements.
Without limiting Your other obligations (express or implied) in relation to the Services, You must:
(a) Ensure the security of all Permitted Usernames and passwords used to access the Services;
(b) Use best endeavours to restrict access to the Services other than by Permitted Users;
(c) Notify Us of any unauthorised or improper use of the Services or any breach of these terms by You or any Permitted User;
(d) Ensure that all data You provide in connection with the Services is accurate and up to date at all times;
(e) Ensure that You hold all necessary rights that are required to use the data You provide in connection with the Services, including obtaining any applicable third party consents;
(f) Ensure that all Permitted Users are aware of, and are bound by, these terms;
(h) Without limiting the foregoing, always obtain from each Permitted User all consents and authorisations that are necessary to ensure that the use of the Services complies with all applicable laws regarding the collection, storage, use and disclosure of that Permitted User’s personal information.
You must not, and shall ensure that Your Permitted Users do not:
(a) Sub-contract or re-sell the Services or directly or indirectly allow any third party other than a Permitted user to Use the Services.
(b) Do anything that would disrupt the Services, affect the use of the Services by any other person or damage Our systems;
(c) Transmit or publish any information which is defamatory, objectionable or that would breach these terms or the rights of any person;
(d) Submit personal information without first providing all consents and authorisations contemplated under clause 6(i); or
(e) Attempt to gain unauthorised access to Our data or systems or the data or systems of any other person.
You indemnify Us for any loss we suffer as a result of any breach of these terms by You or any Permitted user. You further indemnify Us in relation to any claim of any Permitted User or third party arising in connection with the Services provided to You or your Permitted Users.
Either we (or our licensor(s)) own intellectual property rights in relation to the software, copyright materials, trademarks, knowhow and other intellectual property used in providing the Services. You acknowledge that You derive no rights to, and that You will not do anything that would breach, any of those intellectual property rights. In particular, You must not attempt to replicate, copy or reverse engineer any of the software, copyright materials, trademarks, knowhow or other intellectual property used in providing the Services.
You will retain ownership of data that is owned by You. You warrant that all data that You provide in connection with the Services may be used by Us as necessary to deliver the Services. You further warrant that our use of such data will not breach the rights of any person
Handling Your data:
We will use our all reasonable endeavours to protect the data provided by You and to prevent unauthorised access to that data but We are not responsible for loss of data or for unauthorised access to it. You are responsible for maintaining back-up copies of all data. You agree that we may use or disclose Your data as necessary to comply with any of our legal obligations. We may also use Your data (on an anonymous basis) for the purposes of improving the Services or our systems.
Subject to any written agreement to the contrary, either party may terminate the Services without cause by giving 30 days written notice. We may suspend or terminate the Services immediately upon giving You notice if You or a Permitted User breaches any of these terms. We may also suspend or terminate the Services if You fail to pay Us any moneys when due. Upon termination, You must cease use of the Services, pay all moneys then due and You will cease having access to any of Your data held by Us. Termination does not affect any accrued rights or any obligations that are intended to continue after termination.
Each party shall keep and maintain as confidential all information that is marked as confidential or that is confidential in nature that is received from the other party. This shall not prevent use or disclosure where reasonably required to perform a party’s obligations under this agreement or if disclosure is required by law. This obligation continues following termination.
Health and safety compliance:
The Services do not constitute advice to You. You remain responsible in all respects for complying with Your legal obligations (including health and safety obligations) notwithstanding the provision of Services. We are not responsible for any breach by You of any legal obligation, whether or not such breach arises from You relying on the Services.
No warranties/ no liability:
You are responsible for verifying that the Services meet Your requirements before receiving the Services. We do not warrant that the Services are fit for purpose or suitable for You or any Permitted Users or that the Services will be error free. You use the Services at Your own risk. The timing for provision of Services is not guaranteed. All warranties implied at law are excluded to the extent legally possible. We have no responsibility to You or any other person other than as expressly set out in these terms.
No guarantee Services provided:
You acknowledge that the provision of the Services relies on Your hardware and systems being operational and compatible with the Services. Further, the Services rely on networks, systems and services of third parties, which are beyond our control. We do not guarantee that the Services will always be available or uninterrupted. There will be planned and unplanned outages of the Services from time to time. We are not liable for any outage, suspension or cessation of the Services. Without limiting the foregoing, we are not liable for any delay or failure to provide Services due to any matter that is beyond our control. Further, We are not liable for any act of a third party.
Limitation of liability:
We shall not be liable to You or any Permitted User in contract, tort (including negligence) or otherwise for any losses arising directly or indirectly in connection with the Services or from any act or omission by Us except as set out in this clause. Other than where our liability is excluded under another provision of these terms, We will be liable to You for damages suffered by You as a direct result of a breach of these terms by Us provided that our total liability to You for all losses suffered in a calendar year shall be limited to an aggregate amount of $1200 (including GST if any) for that calendar year.
- Comply with laws: You must, and must ensure that all Permitted Users, comply with all laws applicable to Use of the Services.
- No assignment: You may not assign or transfer the Services to any other person.
- Severability: If any provision is held to be invalid, illegal or unenforceable, such provision shall be severed or read down (to the minimum extent permitted at law) and the remainder of the terms will remain in full force and effect.
- NZ Law: These terms, and the Services, are governed by New Zealand law.
- Entire agreement: These terms, together with any Service Agreement, set out the entire agreement between us. To the extent of any consistency between these terms and the Service Agreement: (a) clauses 14, 15, 16 and 17 of these terms shall prevail over the Service Agreement; and (b) the terms of the Service Agreement shall otherwise prevail over these terms.
- No waiver: No failure or delay in by Us in exercising any right shall constitute a waiver of such right.
- Survival: Clauses 8, 9, 13 and 14-17 (inclusive) shall continue to apply following termination of the Services.
- Notices: We may give You notices by email to an address supplied by You or to the address that we customarily use to communicate with You. You may give Us notices [how?]
Definitions and interpretation:
In these terms:
(a) Headings: Headings do not affect the interpretation of any of these terms.
(b) Including: Where the word “including” is used in these terms, it shall be deemed to be followed by the words “without limitation”.
(c) Permitted Users means persons to whom You grant access for a location or site and that use the Services in relation to that location or site.
(d) Policy means a policy specified by us and either notified to You or available on our website and Policies has a corresponding meaning. All Policies are deemed to be repeated in full in these terms and form part of these terms.
(e) Service Agreement means an agreement entered into between You and Us in writing setting out the terms on which We are to provide you with Services.
(f) Services means use of the application known as “Forsite” and, where the context requires, means the contract under which we provide the Services.
(g) Trial means where we provide you with Services on a trial basis whether or not you pay Us any fees for those Services.
(h) We, Us or Our is a reference to Forsite Limited Partnership (or its assignee).
(i) You and Your is a reference to you, our customer, and, where applicable, means the customer specified in the Service Agreement.