My TF

MyTF Software Subscription Terms and Conditions

  1. Definitions and interpretation
    1. Definitions: In these Terms and Conditions, unless the context otherwise requires:
      1. Client means the person or entity subscribing the Services from the Supplier, and includes any entity on whose behalf a person registers to use the Services
      2. Confidential Information means any information that is not public knowledge and that is obtained from the Client in the course of, or in connection with, the provision of Services by the Supplier. For the avoidance of doubt, Intellectual Property owned by the Supplier, including the Software and Underlying Systems are the Supplier's Confidential Information. The Data is the Client's Confidential Information.
      3. Data means all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Client that is stored using, or inputted into, the Services.
      4. Engagement Letter means the engagement letter issued by the Supplier to the Client regarding the provision of the Services.
      5. Fees means the fees relating to the supply of the Services, as updated from time to time in accordance with clause 5.2.
      6. Force Majeure means an event that is beyond the reasonable control of a party, excluding:
        1. An event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
        2. A lack of funds for any reason.
      7. Intellectual Property Rights means the intellectual and industrial property of all kinds owned and developed by the Supplier in connection with the Software, the manual to support the Software and includes copyright and all worldwide rights conferred under statute, common law or equity relating to inventions, registered and unregistered trademarks and designs, databases, confidential information, know how, designs, trade secret, source code and all other rights resulting from the Supplier's intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
      8. Objectionable means includes being objectionable, defamatory, obscene, harassing, threatening, or unlawful in any way.
      9. Permitted Users means those personnel of the Client who are authorised to access and use the Services on the Client's behalf in accordance with clause 3.3.
      10. Personal Information has the meaning given in the Privacy Act 1993.
      11. SaaS Service means the Software as a service having its core functionality of being a Transitional Facility Site management system.
      12. Services means the SaaS Service and any related support service.
      13. Software means the MyTF software created and owned by the Supplier that is used to provide the SaaS Service.
      14. Supplier means Ecoculture Limited (or its permitted assigns).
      15. Terms means these Terms and Conditions.
      16. Transitional Facility Site means a single geographic location, managed by a specified single entity, which has gained, or is seeking to gain, approval as a transitional facility in accordance with section 39 Biosecurity Act 1993.
      17. Underlying Systems means the Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
      18. Website means the internet site www.ecquality.co.nz, or such other site notified to the Client by the Supplier.
  2. Services
    1. General: The Supplier will provide the Services:
      1. Exercising reasonable care, skill and diligence; and
      2. Using suitably skilled, experienced and qualified personnel.
    2. Non-exclusive: The Supplier's provision of the Services to the Client is non-exclusive.
    3. Availability:
      1. Subject to clause 2.3.2, the Supplier will use reasonable efforts to ensure the SaaS Services is available on a 24/7 basis in New Zealand. However, it is possible that on occasion the SaaS Services may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. The Supplier will use reasonable efforts to publish on the Website or advise via email to Client the details of any unavailability.
      2. The SaaS Service may interoperate with a range of third party service features. The Supplier does not make any warranty or representation on the availability of any third party 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, the Supplier may cease to make available that feature to the Client. To avoid doubt, if the Supplier exercises its right to cease the availability of a third party feature, the Client is not entitled to any refund, discount or other compensation.
    4. Underlying Systems: The Supplier is responsible for procuring all Underlying Systems reasonably required for it to provide the Services in accordance with these Terms.
    5. Site Specific: The Client acknowledges and agrees that the Services is site specific (i.e.) subscription of the Services is charged on a per site basis.
    6. Free Trial Period: New Clients may be entitled to a free trial applicable for the first calendar month (or part thereof) of the subscription period for each Transitional Facility Site registering for the first time on the My TF software (e.g.) a Client who signs up on 3rd January will receive a free trial period (for the subscription package of their choice) until the end of January, but if the Client does not wish to continue with the Services, it must end the subscription before the end of January otherwise the Client will be charged the Fees for February (and any month after that until cancellation is completed). For clarity, any Transitional Facility Site signing up which have previously received a free trial period will not be entitled to another free trial period and will be charged the normal Fees for the calendar month in which they register.
  3. Client obligations
    1. General use: The Client and its personnel must:
      1. Use the Services in accordance with these terms solely for:
        1. The Client's own internal business purposes; and
        2. Lawful purposes (including complying with the Unsolicited Electronic Messaging Act 2007); and
      2. Not resell or make available the Services to any third party, or otherwise commercially exploit the Services.
    2. Access conditions: When accessing the SaaS Service, the Client and its personnel must:
      1. Not impersonate another person or misrepresent authorisation to act on behalf of others or the Supplier;
      2. Not attempt to undermine the security or integrity of the Underlying Systems;
      3. Not use, or misuse, the SaaS Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service;
      4. Not attempt to view, access or copy any material or data other than that to which the Client is authorised to access;
      5. Neither use the SaaS Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and
      6. Comply with these terms, as updated from time to time via email by the Supplier.
    3. Personnel:
      1. Without limiting clause 3.2, no individual other than a Permitted User may access or use the Services. The Services is site specific.
      2. The Client may authorise any member of its personnel to be a Permitted User, in which case the Client will provide the Supplier with the Permitted User's name, email address and other information that the Supplier reasonably requires in relation to the Permitted User.
      3. The Client must procure each Permitted User's compliance with clauses 3.1 and 3.2 and any other reasonable condition notified by the Supplier to the Client.
    4. Authorisations: The Client is responsible for procuring all relevant licences, authorisations and consents required for it and its personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.
  4. Data
    1. Supplier access to Data:
      1. The Client acknowledges that:
        1. In order to provide the Services the Supplier will require access to the Data to exercise its rights and perform its obligations under these Terms; and
        2. To the extent that this is necessary but subject to clause 7, the Supplier may authorise a member or members of its Personnel to access the Data for this purpose.
      2. The Client must arrange all consents and approvals that are necessary for the Supplier to access the Data as described in clause 4.1.1.
      3. The Client authorises the Supplier to collect, use and hold and disclose any Personal Information:
        1. For the purpose of administration and supply of the Services;
        2. (If applicable) for any credit reporting agencies, debt collection agencies and any of the Supplier's Personnel for the purpose of debt collection purposes, and in relation to any subsequent actions or dealings arising out of or in connection with the provision of the Services by the Supplier.
    2. Agent:
      1. The Client acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, the Supplier is acting as an agent of the Client for the purposes of the Privacy Act 1993 and any other applicable privacy law.
      2. (If applicable) The Client must obtain all necessary consents from the relevant individual to enable the Supplier to collect, use, hold and process that information in accordance with these Terms.
    3. Backups of Data: While the Supplier will take standard industry measures to back up all Data stored in order to provide the Services, the Client agrees to keep a separate back-up copy of all Data uploaded by it onto the SaaS Service.
    4. Indemnity: The Client indemnifies the Supplier against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by the Supplier's 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.
  5. Fees
    1. Fees: Fees for the Services are set out in the Schedule and are charged on a monthly basis.
    2. Variations: The Fees may be updated from time to time by the Supplier giving at least 30 days' notice in advance to the Client. If the variation in Fees is not acceptable to the Client then the Client may terminate the Services by giving to the Supplier no less than 30 days' prior notice. If the Client does not terminate the Services in accordance with this clause, it is deemed to have accepted the varied Fees.
    3. Invoicing and payment:
      1. The Supplier will provide the Client with valid GST tax invoices monthly in arrears for the Fees due in the previous month.
      2. The Client must pay the Fees on the dates set out in the invoice(s), or if there are none, by the 20th of the month following the date of invoice; electronically in cleared funds without any set off or deduction.
    4. Overdue amounts: The Supplier may, at its discretion, charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at 5% per week on the outstanding amount until payment is paid.
    5. Adjustments of Services package(s) by Client:
      1. Where a facility or package upgrade is required by the Client before the 20th of a month, the Client will incur Fees at the higher monthly rate for that month.
      2. Where a facility or package is upgraded on or after the 20th of the month, the Client will incur Fees at the lower monthly rate for that month.
      3. Where a facility or package is downgraded during a month the Client will incur Fees at the original (higher) monthly rate for that month in which the downgrade occurs (i.e. the downgrade will not take effect until the following month).
  6. Intellectual Property
    1. Ownership:
      1. Subject to clause 6.1.2, title to, and all Intellectual Property Rights in, the Services, the Website, and all Underlying Systems shall remain the property of the Supplier. The Client must not dispute that ownership.
      2. Title to, the Data (as between the parties) remains the property of the Client. The Client grants the Supplier 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 its rights and performance of its obligations in accordance with these Terms.
    2. Know how: To the extent not owned by the Supplier, the Client grants the Supplier a royalty-free, transferable, irrevocable and perpetual licence to use for the Supplier's own business purposes any know how, techniques, ideas, methodologies, and similar Intellectual Property of the Client to enable the Supplier to provide the Services.
    3. Feedback: If the Client provides the Supplier with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
      1. 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 the Supplier; and
      2. The Supplier may use or disclose the feedback for any purpose.
    4. Goodwill: All goodwill arising out of the use of the Intellectual Property Rights in the Services, the Website, and all Underlying Systems will be for the benefit of the Supplier.
    5. Potential infringement: The Client agrees to promptly notify the Supplier of any improper or unlawful use or infringement of the Intellectual Property Rights of the Supplier which comes into the Client's notice.
  7. Confidentiality
    1. Security: Each party must, unless it has the prior written consent of the other party:
      1. Keep confidential at all times the Confidential Information of the other party;
      2. Effect and maintain adequate security measures to safeguard the other party's Confidential Information from unauthorised access or use; and
      3. 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, the provisions of clauses 7.1.1 and 7.1.2.
    2. Permitted disclosure: The obligation of confidentiality in clause 7.1.1 does not apply to any disclosure or use of Confidential Information:
      1. For the purpose of performing the Services or exercising a party's rights under these Terms;
      2. Required by law (including under the rules of any stock exchange);
      3. Which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
      4. Which was rightfully received by a party to these Terms from a third party without restriction and without breach of any obligation of confidentiality; or
      5. By the Supplier if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.
  8. Warranties
    1. No implied warranties: To the maximum extent permitted by law:
      1. The Supplier's 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 the Sale of Goods Act 1908) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to one month's subscription; and
      2. It is the responsibility of the Client to satisfy itself as to the suitability and fitness of the Services for its purposes - the Supplier makes no representation concerning the quality of the Services and does not promise that the Services will:
        1. Meet the Client's requirements or be suitable for a particular purpose, including that the use of the Services will fulfil or meet any statutory role or responsibility of the Client; or
        2. Be secure, free of viruses or other harmful code, uninterrupted or error free.
    2. Consumer Guarantees Act: The Client agrees and represents that it is acquiring the Services, for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply to the supply of the Services.
    3. Limitation of remedies: 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, the liability of the Supplier for any breach of that condition or warranty is limited (on the part of the Supplier) to modify the Services so as to meet the requirements of the relevant legislation.
  9. Liability
    1. strong>Maximum liability: The maximum aggregate liability of the Supplier under or in connection with the supply of the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall be limited to the Fees paid by the Client in the previous month.
    2. Unrecoverable loss: Neither party is liable to the other under or in connection with these Terms or the Services for any:
      1. Loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
      2. Consequential, indirect, incidental or special damage or loss (whether in contract, tort or otherwise) of any kind.
      3. Clause 9.2 does not apply to limit the Client's liability:
        1. To pay the Fees; or
        2. Under the indemnity in clause 4.4.
    3. No liability for other's failure: 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.
    4. Mitigation: 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.
  10. Term, termination and suspension
    1. Duration: The Supplier will provide the Services to the Client on a monthly basis. The Client is entitled to terminate the Services at any time subject to payment in full of the invoice for the current month plus any outstanding fees to date.
    2. Termination:
      1. The Supplier may, by notice to the Client, immediately terminate the Services if the Client:
        1. Breaches any material provision of these Terms and the breach is not remedied within 10 days of the receipt of a notice from the Supplier requiring it to remedy the breach; or
        2. 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; or
        3. Is unable to perform a material obligation under these Terms for 30 days or more due to Force Majeure.
    3. Consequences of termination or expiry:
      1. Termination or expiry of the Services does not affect the Supplier's rights and obligations that accrued before that termination or expiry.
      2. On termination the Client must pay all Fees for Services provided prior to that termination or expiry.
      3. Except to the extent that a party has ongoing rights to use Confidential Information, at the Supplier's request following termination or expiry of these Terms, the Client must promptly return to the Supplier or destroy all Confidential Information of the Supplier that is in the Client's possession or control.
      4. At any time prior to one month after the date of termination or expiry, the Client may request: To avoid doubt, the Supplier is not required to comply with clause 10.3.4.1 to the extent that the Client previously requested deletion of the Data.
        1. A copy of any Data stored using the SaaS Service, provided that the Client pays the Supplier's reasonable costs of providing that copy. On receipt of that request, the Supplier must provide a copy of the Data in a common electronic form. The Supplier does not warrant that the format of the Data will be compatible with any software; and/or
        2. Deletion of the Data stored using the SaaS Service, in which case the Supplier agrees to use reasonable efforts to promptly delete that Data.
    4. Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of the Services, including clauses, 6 and 7, continue in force.
    5. Suspending access: Without limiting any other right or remedy available to the Supplier, the Supplier may restrict or suspend the Client's access to the SaaS Service where the Client (including any of its personnel):
      1. Undermines, or attempts to undermine, the security or integrity of the SaaS Service or any Underlying Systems;
      2. Uses, or attempts to use, the SaaS Service:
        1. For improper purposes; or
        2. In a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service; or
      3. Has otherwise materially breached any of these Terms (in the Supplier's reasonable opinion).
    6. Notice: The Supplier must notify the Client where it restricts or suspends the Client's access under clause 10.5.
  11. Disputes
    1. Good faith negotiations: Before taking any Court action, a party must use best efforts to resolve any dispute under, or in connection with, these Terms through good faith negotiations.
    2. Obligations continue: Each party must, to the extent possible, continue to perform its obligations under these Terms even if there is a dispute.
    3. Right to seek relief: This clause 11 does not affect either party's right to seek urgent interlocutory and/or injunctive relief.
  12. General
    1. Force Majeure: Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure, provided that the affected party:
      1. Immediately notifies the other party and provides full information about the Force Majeure;
      2. Uses best efforts to overcome the Force Majeure; and
      3. Continues to perform its obligations to the extent practicable.
    2. Rights of third parties: No person other than the Supplier and the Client has any right to a benefit under, or to enforce, these Terms.
    3. Waiver: To waive a right under these Terms, that waiver must be in writing and signed by the waiving party.
    4. Independent contractor: Subject to clause 4.2, the Supplier is an independent contractor of the Client, and no other relationship (e.g. agency or partnership) exists under these Terms.
    5. Notices: A notice given by a party under these Terms must be delivered to the other party via email using the email address provided by the Client and the Supplier (as the case may be).
    6. Severability: Any illegality, unenforceability or invalidity of a provision in these Terms does not affect the legality, enforceability or validity of the remaining provisions of these Terms.
    7. Variation: Any variation to these Terms must be in writing and signed by both parties.
    8. Law: These terms 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.

SCHEDULE

Please refer to www.stemsystems.co.nz/sign-up-to-my-tf for the monthly fee schedule.