End User Licence Agreement

Acceptance

Magnetize Ltd NZBN 9429046714077 (we, us or our) owns or licenses this platform (including the software as a service solution and any software, instructions in hard copy or electronic form and any update, modification or release of any part of the preceding) (Platform). This Platform is available on our site at www.magnetize.co.nz and both the Apple App Store and the Google Play Store and may be available through other addresses and channels.
These terms and conditions (Terms) are between us and you, together the Parties and each a Party.
Where you are invited by the account holder (Account Holder) to create a user account as an end user (User Account), these Terms set out the terms and conditions upon which we agree to grant you, as an end user, a right to use the Platform, and provide any other services to you as set out in these Terms. This will be subject to the terms of your Account Holder’s agreement with us and any privileges and permissions they grant to you.
You accept these Terms by clicking a box indicating your acceptance.
These Terms will commence on the date on which you accept these Terms and will continue until the date these Terms are terminated in accordance with the termination clause below (Term).
If you are using the Platform as an Account Holder, in addition to these Terms, the Account Holder agreement will govern your access and use of the Platform. To the extent of any ambiguity or inconsistency, the Account Holder agreement will take precedence over these Terms.
If you create a User Account and are agreeing to these Terms on behalf of a company, your employer, an organisation, government or other legal entity (Entity), then “you” means the Entity and you are binding that Entity to these Terms.

Licence

In consideration of the Account Holder’s payment of the fees to use the Platform, and for your compliance with these Terms, we grant you a non-exclusive, non-transferable, non-sublicensable (except with our express written permission), personal and revocable licence to access and use the Platform for the Term, for your business purposes (Licence).

Accounts

You will be required to choose a username and password. You will have access to the Platform as determined by the Account Holder.
You must ensure that any information you provide to us, or we request from you, for your User Account, is complete and accurate and you are authorised to provide this information to us.
You are the User Account owner and regardless of any change in any contact details, you will remain responsible for your User Account, as set out in these Terms. If you wish to change the User Account owner, you must provide us with a written request to transfer the ownership of the User Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the User Account, in a form acceptable to us.
It is your responsibility to keep your User Account details confidential. You are responsible for all activity on your User Account, and for ensuring that any activities on your User Account comply with these Terms.
We are not responsible for the management or administration of your User Account.

Restrictions on use

You must not access or use the Platform except as permitted by the Licence and you must not (and must not permit any other person to) use the Platform in any way which is in breach of any applicable Laws or which infringes any person's rights, including Intellectual Property Rights, including to:

use the Platform to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
use the Platform in any way that damages, interferes with or interrupts the supply of the Platform;
introduce malicious programs into our hardware and software or Systems, including viruses, ransomware, malware, trojan horses and e-mail bombs;
reveal or allow others access to your User Account’s password or authentication details or allow others to use your User Account or authentication details;
carry out security breaches or disruptions of a network, including accessing data where you are not the intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data (including network sniffing/monitoring, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
use any program/script/command, or send messages of any kind, with the intent to interfere with, or disable, any person’s use of the Platform;
if applicable, send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages, or use the Platform in breach of any person’s privacy (such as by way of identity theft or “phishing”); or
circumvent user authentication or security of any of our Platform, networks, accounts or hosts or those of our other users.

Third Party Inputs

You agree that the provision of the Platform may be contingent on, or impacted by, Third Party Inputs.
You agree that the Platform may include Third Party Inputs that may interface, or interoperate with, the Platform, including third party software or services.
To the extent that you choose to use such Third Party Inputs, you (or the Account Holder where applicable) are responsible for:
1. applicable purchases in relation to;
2. the requirements of; and
3. the licensing obligations of,
any such Third Party Input, including third party software and services.
We are not a party to any agreement or licence entered into between you (or the Account Holder) and any Third Party Input and we have no control over the conduct of Third Party Inputs, including how they handle your data or the cancellation of their services.
You agree that the benefit of the Third Party Input’s interface, or interoperation with, the Services, is subject to your compliance with clause 5.3.
Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability, caused or contributed to by, arising from or connected with any Third Party Inputs.

Privacy and Communication

You are responsible for the collection, use, storage and otherwise dealing with Personal Information related to your business and all matters relating to the Customer Data.
You must, and must ensure that your Personnel and Authorised Users, comply with the legal requirements of the New Zealand Privacy Act 2020 and any privacy or anti-spam Laws applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with these Terms.
We agree to handle any Personal Information you provide to us, solely for the purpose of performing our obligations under these Terms and in accordance with any applicable Laws.
We may contact you via the Platform, using in-account notifications or via-off platform communication channels, such as text messages or email with functional notifications.
We may also send marketing and promotional material which may be of interest to you, using your contact details. You may opt out of receiving direct marketing messages at any time. Where you opt-out we will continue to send you functional communications relevant to your use of the services.

Confidential Information

Each Receiving Party agrees:
1. not to disclose the Confidential Information of the Disclosing Party to any third party;
2. to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
3. to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
The obligations in clause 7.1 do not apply to Confidential Information that:
1. is required to be disclosed in order for the Parties to comply with their obligations under these Terms;
2. is authorised to be disclosed by the Disclosing Party;
3. is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms; or
4. must be disclosed by Law or by a regulatory authority, including under subpoena.
Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 7. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 7.
This clause 7 will survive the termination of these Terms.

Intellectual Property Rights

You agree that all Intellectual Property Rights:
1. in the Platform;
2. in the Intellectual Property developed, adapted, modified or created by us, or our Personnel (including in connection with these Terms, the Platform, and any machine learning algorithms output from the Platform); and
3. in any Feedback,
will at all times vest, or remain vested, in us (or, if applicable, our third party service providers). To the extent that ownership of the Intellectual Property Rights do not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.
You agree that we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback.
You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials, solely for the purposes for which they were developed and for the performance of our obligations under these Terms, as contemplated by these Terms.
You must not whether directly or indirectly, without our prior written consent:
1. copy or use, in whole or in part, any of our Intellectual Property;
2. reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our Intellectual Property to any third party;
3. reverse assemble, reverse engineer, reverse compile or enhance the Platform;
4. attempt to discover the source code or object code or underlying structures, ideas, know-how or algorithms, the data or documentation, in relation to the Platform;
5. breach any Intellectual Property Rights connected with the Platform, including altering or modifying any of our Intellectual Property;
6. cause any of our Intellectual Property to be framed or embedded in another website; or create derivative works from any of our Intellectual Property;
7. resell, assign, lease, hire, sub-license, transfer, distribute or make available the Platform to third parties;
8. “frame”, “mirror” or serve any of the Platform on any web server or other computer server over the Internet or any other network; and
9. alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers or any other means of identification used on or in relation to the Platform.
This clause 8 will survive the termination or expiry of these Terms.

Analytics

Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Platform, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:
1. does not contain identifying information; and
2. is not compiled using a sample size small enough to make the underlying User Data identifiable.
We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.

User Data

You grant us a limited licence to copy, transmit, store and back-up or otherwise access the User Data during the Term and for a reasonable period after the Term to:

supply the Platform (including for back-ups) to you (including to enable you to use the Platform);
diagnose problems with the Platform;
develop other services, provided we de-identify the User Data;
enhance and otherwise modify the Platform, and
as reasonably required, to perform our obligations under these Terms.

You must, at all times, ensure the integrity of the User Data, investigate any unusual output of the User Data, and ensure that your provision of, and use of the User Data is compliant with all Laws.
You represent and warrant that:

you have obtained all necessary rights, releases and permissions to provide all your User Data to us and to grant the rights granted to us in these Terms;
the User Data is accurate and complete;
the User Data (and its transfer to and use by us as authorised by you) under these Terms does not violate any Laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and
any use, collection and disclosure authorised in these Terms is not inconsistent with the terms of any applicable privacy policies.

We assume no responsibility or Liability for the User Data. You are solely responsible for the User Data and the consequences of using, disclosing, storing or transmitting it. It is your responsibility to back up the User Data.
You acknowledge and agree that the operation of the Platform is reliant on the accuracy of the User Data, and the provision of inaccurate or incomplete User Data by you may affect the use, output and operation of the Platform.

Warranties

You warrant and agree that:
1. there are no legal restrictions preventing you from entering into these Terms;
2. you are not and have not been the subject of an Insolvency Event;
3. you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access and documentation that is reasonably necessary to enable us to provide the Platform and as otherwise requested by us, from time to time, and in a timely manner;
4. all information and documentation that you provide to us in connection with these Terms is true, correct and complete and that we will rely on such information and documentation in order to provide the Platform;
5. you have not relied on any representations or warranties made by us in relation to the Platform (including as to whether the Platform is or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;
6. the Platform is provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, the Platform to third parties without prior written consent;
7. you will be responsible for the use of any part of the Platform, and you must ensure that no person uses any part of the Platform to break any Law or infringe any person’s rights (including Intellectual Property Rights) or in any way that damages, interferes with or interrupts the supply of the Platform;
8. you have reviewed these Terms including our Privacy Policy, and you understand them and will use the Platform in accordance with them;
9. you have the authority to act on behalf of any person or entity for whom you are using the Platform and you are deemed to have agreed to these Terms on behalf of any entity for whom you use the Platform; and
10. you have all the hardware, software and services which are necessary to access and use the Platform, including any required operating systems as set out on the Platform.

New Zealand Consumer Laws

We warrant that the Platform will, at the time they are provided, materially conform to any requirements set out in the Account Holder’s plan.
If the Services do not meet a warranty, at your request and at our cost, we must reperform the Services so that they meet or satisfy that warranty. Our obligation under this clause 12.1 is your sole remedy against us for breach of warranty.
To the maximum extent permitted by law, our warranties are limited to those stated in clause 12.1. Any implied condition or warranty (including any warranty under Part 3 of the New Zealand Contract and Commercial Law Act 2017) is excluded.
You agree and represent that you are using the Platform for the purposes of trade. The Parties agree that:

to the maximum extent permissible by law, the New Zealand Consumer Guarantees Act 1993 does not apply to the supply of the Services or these Terms; and
it is fair and reasonable that the Parties are bound by these Terms, including this clause.

This clause 12 will survive the termination or expiry of these Terms.

Limitations on Liability

Despite anything to the contrary and to the maximum extent permitted by law:

neither Party will be liable for any Consequential Loss;
a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel); and
our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us paying you $100

This clause 13 will survive termination or expiry of these Terms.

Exclusions to Liability

You acknowledge and agree that:

you are responsible for all users using the Platform;
you use the Platform and any associated programs and files at your own risk;
the technical processing and transmission of the Platform, including User Data, may be transferred unencrypted and involves:

transmissions over various networks; and
changes to conform and adapt to technical requirements of connecting networks or devices;

we may use third party service providers to integrate with the Platform or to host the Platform. If the providers of third party applications or services cease to make their services or programs available on reasonable terms, we may cease providing any affected features without Liability or entitling you to any refund, credit, or other compensation;
the Platform may use third party products, facilities or services. We do not make any warranty or representation in respect of the third party products, facilities or services;
we do not guarantee that any file or program available for download and/or execution from or via the Platform is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used;
we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you; and
we may pursue any available equitable or other remedy against you if you breach any provision of these Terms.

This clause 14 will survive termination or expiry of these Terms.

Termination

You may terminate these Terms at any time via the “cancel User Account” (or similar) feature in your User Account or by emailing us.
The Account Holder may terminate your access to your User Account or change your access privileges at any time at their discretion. If the Account Holder's subscription is suspended or terminated, we may also suspend your User Account, your access or terminate your User Account.
If we have reason to believe you are misusing the Platform or are otherwise in breach of these Terms, we may suspend and/or terminate your User Account at any time, by providing you with notice, in which case we will immediately cease providing the Platform to you.
Upon expiry or termination of these Terms:

we will immediately cease providing the Platform to you;
we will be entitled to permanently delete all User Data within 1 month from expiry or termination of these Terms; and
upon request by us, you agree to promptly return (where possible) or delete or destroy (where not possible to return), any of our property (including any of our Confidential Information and Intellectual Property).

Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
This clause 15 will survive the termination or expiry of these Terms.

General

Access: The Platform may be accessed in New Zealand and overseas. We make no representation that the Platform complies with the Laws (including Intellectual Property Laws) of any country outside of New Zealand. If you access the Platform from outside New Zealand, you do so at your own risk and you are responsible for complying with the Laws in the place you access the Platform.
Amendment: We may update these Terms at any time. Where we update these Terms we will notify you via an in-account notification or via email. If you do not agree with any amendment you may terminate these Terms in accordance with clause 15.1.
Assignment: A Party must not assign or deal with the whole or any of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the the President of the New Zealand Law Society to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
Entire agreement: These Terms contain the entire understanding between the Parties, and supersede all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter. Without limiting the previous sentence, the Parties agree to contract out of sections 9, 12A and 13 of the New Zealand Fair Trading Act 1986, and that it is fair and reasonable that the Parties are bound by this clause 16.6.
Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control (including but not limited to epidemics, pandemics, and Government sanctioned restrictions and orders, whether known or unknown at the time of entering into these Terms) (Force Majeure Event).
Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.
Governing law: These Terms are governed by the laws of New Zealand. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New Zealand and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 3 Business Days in the case of post, or at the time of transmission in the case of transmission by email.
Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.

Definitions

In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in these Terms, and:

Business Day means a day on which banks are open for general bank business in Auckland, New Zealand, excluding Saturdays, Sundays and public holidays;

Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems;

Confidential Information includes information which:

is disclosed to the Receiving Party in connection with these Terms at any time;
is prepared or produced under or in connection with these Terms at any time;
relates to the Disclosing Party’s business, assets or affairs; or
relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information;

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. The Parties acknowledge and agree that any other amounts due and payable by you to us under these Terms will not constitute “Consequential Loss” for the purposes of this definition;

Disclosing Party means the party disclosing Confidential Information to the Receiving Party;

Feedback means any idea, suggestion, recommendation or request by you, your customers, whether made verbally, in writing, directly or indirectly, in connection with the Platform;

Insolvency Event means any of the following events or any analogous event:

a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;
a Party ceases, or threatens to cease, carrying on business;
a Party is unable to pay the Party’s debts as the debts fall due;
any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;
any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or
any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business;

Intellectual Property means any copyright, registered and unregistered trade marks, designs (whether or not registered or registrable), domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property;

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Platform, and includes the Privacy Act 2020 and the Unsolicited Electronic Messages Act 2007;

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise;

Licence is defined in clause 2.1;

Personal Information is defined in the Privacy Act 2020 and also includes any similar term as defined in any other privacy law applicable to you;

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents;

Privacy Policy means any privacy policy set out on the Platform;

Receiving Party means the party receiving Confidential Information from the Disclosing Party;

System means all hardware, software, networks and other IT systems used by a Party from time to time, including a network;

Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, third party service providers or other subcontractors which the provision of the Platform may be contingent on, or impacted by;

User Account means an account accessible to you to use the Platform;

User Data means the information, materials, logos, diease protocols, documents, qualifications and other Intellectual Property or data inputted by you into the Platform or stored by the Platform or generated by the Platform as a result of your use of the Platform; and

Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you before the Effective Date and/or developed by or on behalf of you independently of these Terms.

Interpretation

In these Terms, unless the context otherwise requires:

a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
a reference to time is to local time in Auckland, New Zealand;
the singular includes the plural and vice versa; and
a reference to $ or dollars refers to the currency of New Zealand from time to time.

For any questions and notices, please contact us at:

Magnetize Ltd NZBN 9429046714077
Email: scott@magnetize.co.nz
Last update: 19 November 2021