Terms & Conditions of Trade
1. TERMS AND CONDITIONS OF TRADE
By requesting the Supplier to supply Services through the Platform to the Customer, the Customer acknowledges and agrees (or is deemed to acknowledge and agree) that:
(a) the Customer’s agrees to the Supplier’s terms and conditions of trade as set out in this document (the “Terms”); and
(b) the Terms will apply to the Contract and the supply or the provision of Services by the Supplier to the Customer from time to time; and
(c) the Terms will be or are deemed to be incorporated into, and form part of, each contract between the Supplier and the Customer, as if these Terms were set out or implied therein in full; and
(d) each Contract will create or creates, in favour of the Supplier, a security interest in the Software which are the subject of the Contract; and
(e) the security interest granted by the Customer to the Supplier secures the payment by the Customer to the Supplier of all amounts the Customer may owe the Supplier from time to time and at any time.
(f) The Supplier may amend these Terms in its sole and absolute discretion from time to time.
2. BACKGROUND
(a) The Supplier has developed certain software applications (“Software”) and platforms (“Platforms”) which it makes available to subscribers on a subscription basis for the purpose of accessing and measuring the Customer’s business’ greenhouse gas emissions and environmental impact.
(b) The Customer wishes to use the Supplier's Services in its business operations.
(c) The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier's Services subject to these Terms.
3. AGREED TERMS
Interpretation
(a) The definitions and rules of interpretation in this clause apply in these Terms.
(b) Authorised Users: means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.
(c) Business Day: means a day other than a Saturday, Sunday or public holiday in New Zealand.
(d) Confidential Information: means,
(i) any software and its respective source code used by us in the provision of Services;
(ii) each party’s business or technical information, including but not limited to information relating to software plans, designs, costs, prices and names, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or the receiving party knows or should reasonably know is confidential or proprietary; and
(iii) any special pricing or other non-standard terms agreed to by the parties.
(e) Contract: means these terms and the ‘Subscription Terms’, including the subscription fees, as set out on www.greenhalo.nz.
(f) Customer Data: means the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
(g) Documentation: means the document(s) made available to the Customer by the Supplier online via www.greenhalo.nz or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
(h) Effective Date: means the date of these terms or any other date as agreed between the parties.
(i) Subscription Term: means the term of the subscription as set out in the Contract.
(j) Normal Business Hours: 8.30 am to 5.00 pm New Zealand time, each Business Day.
(k) Platform: means the Supplier’s platform in which the Services will be provided to the Customer.
(l) Renewal Period: the period described in clause 13(a).
(m) Services: the Software as a service (SaaS) subscription services provided by the Supplier to the Customer under these terms via the Platform or www.greenhalo.nz or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.
(n) Software: the online software application(s) provided by the Supplier as part of the Services.
(o) Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in the Contract.
(p) Subscription Term: has the meaning given in the Contract and clause 13(a) (being the Subscription Term together with any subsequent Renewal Periods).
(q) Virus: any thing or device (including any software, code, file or programme) which may:
(i) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device;
(ii) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or
(iii) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
(r) Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities will be interpreted accordingly.
(s) Clause, schedule and paragraph headings will not affect the interpretation of these terms.
(t) A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
(u) A reference to a Supplier will include any Supplier, corporation or other body corporate, wherever and however incorporated or established.
(v) Unless the context otherwise requires, words in the singular will include the plural and in the plural will include the singular.
(w) Unless the context otherwise requires, a reference to one gender will include a reference to the other genders.
(x) A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these terms.
(y) A reference to a statute or statutory provision will include all subordinate legislation made as at the date of these terms under that statute or statutory provision.
(z) References to clauses and schedules are to the clauses and schedules of these terms; references to paragraphs are to paragraphs of the relevant schedule to these terms.
4. USER SUBSCRIPTIONS
(a) Subject to the Customer purchasing the User Subscriptions in accordance with the Contract and clause 9(a), the restrictions set out in this clause 4 and the other terms and conditions set out in these Terms, the Supplier grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Customer and its Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
(b) In relation to the Authorised Users, the Customer undertakes that:
(i) each Authorised User will keep a secure password for their use of the Services and Documentation, that such password will be changed no less frequently than six monthly and that each Authorised User will keep their password confidential;
ii) it will permit the Supplier or the Supplier's designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer's data processing facilities to audit compliance with these terms. Each such audit may be conducted no more than once per quarter, at the Supplier's expense, and this right will be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
iii) if any of the audits referred to in clause 4(b)(ii) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier's other rights, the Customer will promptly disable such passwords and the Supplier will not issue any new passwords to any such individual.
(c) The Customer will not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(ii) facilitates illegal activity;
(iii) depicts sexually explicit images;
(iv) promotes unlawful violence;
(v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(vi) is otherwise illegal or causes damage or injury to any person or property; and
(viii) the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
(d) The Customer will not:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(iii) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(iv) use the Services and/or Documentation to provide services to third parties; or
(v) subject to clause 19(a), license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
(vi) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 4; or
(vii) introduce or permit the introduction of, any Virus or Vulnerability into the Supplier's network and information systems.
(e) The Customer will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
(f) The rights provided under this clause 4 are granted to the Customer only, and will not be considered granted to any subsidiary or holding Supplier of the Customer.
5. SERVICES
(a) The Supplier will, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to these Terms.
(b) The Supplier will use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(i) planned maintenance carried out during the maintenance window usually being 10.00 pm to 2.00 am New Zealand time; and
(ii) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.
(c) The Supplier will, as part of the Services and in consideration of the support fees estimated or quoted by the Supplier, provide the Customer with the Supplier's standard customer support services during Normal Business Hours.
6. THIRD PARTY PROVIDERS
(a) The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties directly or via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and will have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
7. SUPPLIER'S OBLIGATIONS
(a) The Supplier agrees that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
(b) clause 7(a) will not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7(a).
(c) The Supplier does not warrant that:
(i) the Customer's use of the Services will be uninterrupted or error-free; or
(ii) that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
(iii) the Software or the Services will be free from Vulnerabilities or Viruses but will use best efforts to close out any identified Vulnerabilities within five working days; or
(iv) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
(d) The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms.
(e) In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against the Supplier will be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier. The Supplier will not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
8. CUSTOMER'S OBLIGATIONS
(a) The Customer will:
(i) provide the Supplier with all necessary access to such information as may be required by the Supplier;
(ii) provide the Supplier with the Customer Data, security access information and configuration services if required to provide the Services;
(iii) without affecting its other obligations under these terms, comply with all applicable laws and regulations with respect to its activities under these Terms;
(iv) carry out all other Customer responsibilities set out in these terms in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(v) ensure that the Authorised Users use the Services and the Documentation in accordance with these Terms and will be responsible for any Authorised User's breach of these Terms;
(vi) obtain and will maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under these Terms, including without limitation the Services;
(vii) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(viii) to the extent permitted by law and except as otherwise expressly provided in these terms, be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier's server, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
(b) The Customer will own all rights, title and interest in and to all of the Customer Data that is not personal data and will have sole responsibility for the accuracy and quality of all such Customer Data.
9. CHARGES AND PAYMENT
(a) The Customer will pay the Subscription Fees and any support fees to the Supplier for the User Subscriptions in accordance with this clause and the Contract.
(b) The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
(i) its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 13(a), on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
(ii) its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 13(a), at least 14 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 14 days after the date of such invoice.
(c) If the Supplier has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
(i) the Supplier may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and the Supplier will be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(ii) interest will accrue on a daily basis on such due amounts at an annual rate equal to 5%, commencing on the due date and continuing until fully paid.
(d) Unless agreed otherwise, all amounts and fees stated or referred to in the Contract will be exclusive of Goods and Services Tax, and Goods and Services Tax will be added to the Supplier's invoice(s).
(e) If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Documentation, the Supplier will charge the Customer, and the Customer will pay, the Supplier's then current excess data storage fees as set out in the Contract.
(f) The Supplier will be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to the Contract, the support fees payable pursuant to clause 5(c) and/or the excess storage fees payable pursuant to clause 9(e) at the start of each Renewal Period upon 30 days' prior notice to the Customer and the Contract will be deemed to have been amended accordingly.
10. INTELLECTUAL PROPERTY RIGHTS
(a) The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation.
(b) The Customer acknowledges that these terms do not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
(c) The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of these Terms.
11. INDEMNITY
(a) The Customer will defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation.
12. LIMITATION OF LIABILITY
(a) Except as expressly and specifically provided in these Terms:
(i) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier will have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;
(ii) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms; and
(iii) the Services and the Documentation are provided to the Customer on an "as is" basis.
(b) the Supplier will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these terms.
(c) the Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms will be limited to the total Subscription Fees paid for the User Subscriptions during the [12] months immediately preceding the date on which the claim arose.
(d) Nothing in these Terms excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s intellectual property rights as set out in clause 10.
13. TERM AND TERMINATION
(a) The Contract will commence on the Effective Date and will continue for the Subscription Term and, thereafter, these terms will be automatically renewed for successive periods of 1 month (each a Renewal Period).
(b) The Supplier can terminate the Contract at any time, for any reasons or no reason, by providing notice to the Customer at least 30 days’ before the end of the relevant Subscription Term.
(c) The Customer can terminate the Contract at any time, for any reasons or no reasons, by providing notice to the Supplier at least 14 days’ before end of the relevant Subscription Term.
(d) Without affecting any other right or remedy available to it, either party may terminate these terms with immediate effect by giving written notice to the other party if:
(i) the other party fails to pay any amount due under these terms on the due date for payment and remains in default not less than 5 working days after being notified in writing to make such payment; or
(ii) the other party commits a material breach of any other term of these terms and (if such breach is remediable) fails to remedy that breach within a period of 20 working days after being notified in writing to do so.
(e) The Supplier may suspend or terminate the Customer’s access to the Services (or any portion thereof) at any time without notice if the Supplier believes:
(i) that any activity or use of Services in connection with your account violates these terms, the intellectual property eights of a third party or applicable laws, or is otherwise disruptive or harmful to us or any third party; or
(ii) that we are required to do so by law.
(f) No termination will relieve the Customer of its obligation to pay any fees payable to us for the period prior to the effective date of termination (being the remainder of the relevant Subscription Term).
(g) On termination of these Terms for any reason:
(i) all licences granted under these terms will immediately terminate and the Customer will immediately cease all use of the Services and/or the Documentation;
(ii) each party will return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(iii) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of these terms, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier will use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer will pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
(iv) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Terms which existed at or before the date of termination will not be affected or prejudiced.
14. CONFIDENTIAL INFORMATION
(a) A Party will not disclose or use any Confidential Information of the other Party except:
(i) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to the Contract;
(ii) with the other Party's prior written permission; or
(iii) to the extent required by law or order of a court or other governmental authority or regulation.
(a) Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care.
(b) Confidential Information will 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 a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party;
(iii) was independently developed by a Party without breach of any obligation owed to the other Party; or
(iv) was or is received from a third party without breach of any obligation owed to the other Party.
(c) For clarity, nothing in this section will restrict the Supplier in respect of the Aggregated Data.
15. PRIVACY STATEMENT AND AGGREGATED DATA
(a) The Supplier may collect, retain and update information about the Customer which the Supplier gathers through the provision of Services to the Customer.
(b) The Supplier may use this information for purposes connected with:
(i) Providing and marketing the Supplier’s existing and future products and services to the Customer;
(ii) Improving, researching, developing and analysing the Services;
(iii) Keeping the Customer informed of opportunities; and
(iv) Developments in areas or activities that the Supplier believes the Customer may be interested in.
(c) The Supplier may sell, on-licence or otherwise disclose overall statistics about the Supplier’s business, demand for relevant products and services and information relating to the Services to third parties provided that such statistics will not include any personal information which identifies any individual Customer.
(d) Where the Supplier holds personal information about an individual associated with the Customer, that individual is entitled to request the correction of their personal information. If such an individual wishes to check the personal information that the Supplier may have collected and holds about them please contact the Supplier.
(e) The Supplier may collect, retain and use the Customer Data which the Supplier gathers through the provision of Services to the Customer provided that the such data is anonymised or aggregated.
16. CONSUMER GUARANTEES ACT 1993 (‘CGA’)
(a) If the Customer is not a consumer as defined in the CGA or the Customer acquires or holds itself out as acquiring the Services under the Contract for the purposes of a business, nothing in the CGA will apply to the supply of the Services.
(b) In the case of any Customer (to which clause 18(a) does not apply), the provisions of the Contract (including these Terms) will only apply to the extent that such provisions do not limit or exclude any provisions of the CGA and will take effect subject to the provisions of the CGA.
17. PPSA
(a) To the extent permitted by law, the Customer and the Supplier contract out of:
(i) section 114(1)(a) of the PPSA; and
(ii) Customer’s rights referred to in sections 107(2)(c),(d),(h) and (i) of the PPSA.
(iii) The Customer waives its right to receive a copy of any verification statement in respect of any financing statement relating to any security interest granted to the Supplier by the Customer.
(b) The Customer agrees to indemnify the Supplier, upon demand, for all costs and expenses (including legal fees) incurred by the Supplier:
(i) as a result of the occurrence of an Event of Default (including upon actual or attempted enforcement of any security interest granted to the Supplier by the Customer); and
(ii) in complying with any demand made under section 162 of the PPSA.
(c) On the request of the Supplier, the Customer shall promptly do all things (including signing any delivery docket and/or invoice) and provide all information necessary to enable the Supplier to perfect and maintain the perfection of any security interest granted to the Supplier by the Customer (including by registration of a financing statement).
18. FORCE MAJEURE
(a) Neither party will be in breach of these terms nor liable for delay in performing, or failure to perform, any of its obligations if such delay or failure result from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 3 months, the party not affected may terminate these terms by giving fourteen days' written notice to the affected party.
19. ASSIGNMENT
(a) The Customer will not, without the prior written consent of the Supplier, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
20. NO PARTNERSHIP OR AGENCY
(a) Nothing in these Terms is intended to or will operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party will have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21. GOVERNING LAW
(a) The Contract and these Terms are governed by the law of New Zealand.