Saas Terms of Service
1 APPLICATION OF TERMS
1.1 | These Terms apply to your use of the Services (as that term is defined below). By setting up an account:
|
1.2 | If you do not agree to these Terms, you are not authorised to access and use the Services, and you must immediately stop doing so. |
2 CHANGES
2.1 |
Subject to clause 2.3:
|
2.2 |
You are responsible for ensuring you are familiar with the latest Terms. |
2.3 | If a change to these Terms is detrimental to you, you may terminate these Terms and your right to access and use the Services on no less than 10 days’ notice, provided the notice is received by us before the date that the change takes effect. If you give notice under this clause 2.3, the previous version of the Terms will apply to your access to and use of the Services during the notice period. If you do not exercise your termination right under this clause, and you continue to access and use the Services from the date on which the Terms are changed, you agree to be bound by the changed Terms. |
2.4 |
|
3 INTERPRETATION
3.1 |
In these Terms:
asBuilt Software means the software owned by us (and our licensors) that is used to provide a Service. Billing Period means, for each Service, successive one-month periods (or such other billing period as is agreed in writing between you and us) commencing on the Billing Start Date for the Service (or such other date as is agreed in writing between you and us). Billing Start Date means, for a Service, the date you [set up an account to use that Service]. Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Services. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the asBuilt Software. Your Confidential Information includes the Data. Data means all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Services. Fees means the applicable fees for the Pricing Plan you have selected (as may be amended by you from time to time in accordance with clause 7.2) set out on our pricing page on the applicable Website or as agreed otherwise in writing between you and us, as may be updated from time to time in accordance with clause . Force Majeure means an event that is beyond the reasonable control of a party, excluding:
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 trademarks 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. Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way. PayLab means our service known as PayLab, having the core functionality described at the PayLab Website, as the PayLab Website is updated from time to time. PayLab Website means the internet site at paylab.asbuiltvault.com, or such other site notified to you by us. a party includes that party’s permitted assigns. a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity. personal information means information about an identifiable, living person, including personal data, personally identifiable information and equivalent information as defined under applicable privacy and data protection laws. personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us. Pricing Plan means a pricing plan for:
Sales Tax includes sales tax, use tax, goods and services tax, value added tax and equivalent tax payable under any applicable law. Services means:
Start Date means the date that you first set up an account to use either Vault or PayLab. Terms means these terms titled SaaS terms of service. Underlying Systems means the asBuilt Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third-party solutions, systems and networks. Vault means our service known as Vault, having the core functionality described at the Vault Website, as the Vault Website is updated from time to time. Vault Website means the internet site at asbuiltvault.com, or such other site notified to you by us. We, us or our means the contracting entity specified in clause 13. Website means the Vault Website and/or the PayLab Website, as appropriate in the context. Year means a 12-month period starting on the Start Date or the anniversary of that date. You or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting. Words in the singular include the plural and vice versa. A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them. |
4 PROVISION OF THE SERVICES
4.1 |
We must use reasonable efforts to provide the Services:
|
4.2 |
Our provision of the Services to you is non-exclusive. Nothing in these Terms prevents us from providing the Services to any other person. |
4.3 | Subject to clause 4.4, we must use reasonable efforts to ensure each Service is available during normal business hours on a 24/7 basis. However, it is possible that on occasion a 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 applicable Website advance details of any unavailability. |
4.4 |
Through the use of web services and APIs, the Services interoperate 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. |
5 YOUR OBLIGATIONS
5.1 |
You and your personnel must:
|
5.2 |
When accessing the Services, you and your personnel must:
|
5.3 |
A breach of any of these Terms by your personnel is deemed to be a breach of these Terms by you. |
5.4 |
You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services. |
6 DATA
6.1 |
You acknowledge that:
|
6.2 |
You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 6.1. |
6.3 | You acknowledge and agree that:
c. title to, and all Intellectual Property Rights in, Analytical Data is and remains our property. |
6.4 | You acknowledge and agree that to the extent Data contains personal information, in collecting, holding and processing that information through the Services, we are acting as your data processor and/or agent and/or service provider (or the equivalent under applicable privacy and data protection laws) for the purposes of applicable privacy and data protection laws. 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. |
6.5 | While we will take standard industry measures to back up all Data stored using the Services, you agree to keep a separate back-up copy of all Data uploaded by you onto the Services. |
6.6 | You agree that we may store Data (including any personal information) in secure servers in the locations specified in clause 13 and may access that Data (including any personal information) in those locations and in New Zealand from time to time. |
6.7 | 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 Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading. |
7 FEES
7.1 |
You must pay us the Fees. |
7.2 |
The Fees exclude Sales Tax, which you must pay on taxable supplies, subject to us providing you with a valid Sales Tax invoice, where required. |
7.3 |
The Fees will be charged to your valid debit/credit card in advance of each Billing Period, unless otherwise agreed in writing, and you authorise us to collect the Fees for each Billing Period from your debit or credit card. |
7.4 |
You must provide us with complete and accurate debit or credit card information required to process payment of the Fees. |
7.5 |
You may change to a different Pricing Plan for a Service at any time [by selecting a new Pricing Plan [on the applicable Website/within the Service]/contacting us by email]. The Fees for the new Pricing Plan will be charged to you with effect from the start of the next Billing Period, however you will be able to use the features of the new Pricing Plan with effect from the date that make the change. If you change to a Pricing Plan that has lower Fees than your Pricing Plan at the date of the change, you will not be entitled to a refund of any Fees that you have already paid. |
7.6 |
At the end of a Billing Period, if neither party has cancelled your subscription to the Service in accordance with clause 12.1b with effect from the end of that Billing Period, you authorise us to charge the Fees for the next Billing Period to your debit or credit card. |
7.7 |
If we are unable to collect the Fees from your debit/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. |
7.8 |
We may increase the Fees for a Service with effect from the start of a Billing Period by giving at least 30 days’ notice. If you do not wish to pay the increased Fees, you may cancel your subscription to the Service in accordance with clause12. If you do not cancel your subscription the Service in accordance with clause 12.2b, and continue accessing and using the Service from the start of the Billing Period in which the increased Fees take effect, you are deemed to have accepted the increased Fees. |
8 FEES
8.1 |
Subject to clause 8.2, title to, and all Intellectual Property Rights in, the Services, the Websites, and all Underlying Systems is and remains our property (and our licensors’ property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights. |
8.2 |
Title to, and all Intellectual Property Rights in, the 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 the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms. |
8.3 |
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 Services. |
8.4 |
If you provide us with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
|
8.5 |
You acknowledge that a Service may link to third party websites or feeds that are connected or relevant to the Service. Any link from a Service does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds. |
9 CONFIDENTIALITY
9.1 |
Each party must, unless it has the prior written consent of the other party:
|
9.2 |
The obligation of confidentiality in clause 9.1 does not apply to any disclosure or use of Confidential Information:
|
10 WARRANTIES
10.1 |
Each party warrants that it has full power and authority to enter into, and perform its obligations under, these Terms. |
10.2 |
To the maximum extent permitted by law:
|
10.3 |
You agree and represent that you are acquiring the Services, and accepting these Terms, for the purpose of trade. The parties agree that:
|
10.4 |
Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
|
11 LIABILITY
11.1 |
Our maximum aggregate liability, whether in contract, tort (including negligence), breach of statutory duty or otherwise:
|
11.2 |
Neither party is liable to the other under or in connection with these Terms or the Services for any:
|
11.3 |
Clauses 11.1 and 11.2 do not apply to limit our liability under or in connection with these Terms for:
|
11.4 | Clause 11.2 does not apply to limit your liability:
|
11.5 |
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. |
11.6 |
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 or the Services. |
12 TERM, TERMINATION AND SUSPENSION
12.1 |
Unless terminated under this clause 12, these Terms:
|
12.2 |
Unless these Terms are terminated under this clause 12, your right to access and use a Service:
|
12.3 |
Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use the Services if the other party:
|
12.4 |
You may terminate these Terms and your right to access and use the Services in accordance with clause 2.3. |
12.5 |
Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination. |
12.6 |
On termination of these Terms or cancellation of a subscription to a Service, you must pay all Fees for the provision of the Services (or the applicable Service) prior to that termination or cancellation. |
12.7 |
No compensation is payable by us to you as a result of termination of these Terms or cancellation of a subscription to a Service for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid. |
12.8 |
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 12.9, 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. |
12.9 |
At any time prior to one month after the date of termination, you may request:
To avoid doubt, we are not required to comply with clause 12.9a to the extent that you have previously requested deletion of the Data. |
12.10 |
Clauses 12.8 and 12.9 apply, with all necessary changes, to the cancellation of a subscription to a Service. |
12.11 |
Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Services and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have:
|
13 GOVERNING ENTITY, GOVERNING LAW AND DATA STORAGE LOCATION
13.1 |
The company you are contracting with under these Terms is stated below. These Terms will be construed in accordance with and governed by the law set out below, and the courts stated below will have jurisdiction in respect of disputes arising out of or in connection with these Terms. The Data will be stored in the location stated below.
|
14 GENERAL
14.1 |
Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure. |
14.2 |
No person other than you and us has any right to a benefit under, or to enforce, these Terms. |
14.3 |
For us to waive a right under these Terms, that waiver must be in writing and signed by us. |
14.4 |
Subject to clause 6.4, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms. |
14.5 |
If we need to contact you, we may do so by email or by posting a notice on the applicable Website. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing [insert email address]. |
14.6 |
Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 6.7, 8, 9, 11, 12.5 to 12.9 and 13.6, continue in force. |
14.7 |
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 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. |
14.8 |
Subject to clauses 2.1 and 7.6, any variation to these Terms must be in writing and signed by both parties. |
14.9 |
These Terms set out everything agreed by the parties relating to the Services, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Services that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date. The parties agree that it is fair and reasonable that the parties are bound by this clause 13.10. |
14.10 |
You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer. |
SCHEDULE 1
SERVICE LEVELS
1 DEFINITIONS
1.1 |
In this Schedule, the following terms have the stated meaning:
|
2 SERVICE AVAILABILITY
2.1 |
Availability: We will use reasonable efforts to ensure that the Availability of each Service to which you have a then-current subscription is 99.5% or more each calendar month, calculated as follows: |
2.2 |
Exclusions: The Availability target in paragraph 2.1 excludes any unavailability, suspension or termination of, or any other performance issues with, the Service:
|
3 SUPPORT REQUESTS
3.1 |
If you consider on reasonable grounds that there is an issue with a Service, we will use reasonable efforts to assist in the resolution of the issue (taking into account the nature and severity of the issue). | |||||||||||||||||||||||||||||||||||||||||||||
3.2 |
The provision of support by us under paragraph 1 of this Schedule is conditional on you:
|
|||||||||||||||||||||||||||||||||||||||||||||
3.3 |
We will use reasonable efforts to meet the response and resolution timeframes set out in Table 1, based on the priority level assigned to each support incident as set out in Table 1, and subject to the terms set out in paragraph 3.4 of this Schedule: TABLE 1 (Target response and resolution times)
|
|||||||||||||||||||||||||||||||||||||||||||||
3.4 |
The following terms apply to response and resolution service levels
|
