1 APPLICATION OF TERMS
These Terms apply to your use of the Portal. By accessing and using the Portal:
- a you agree to these Terms; and
- b where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
- 1.2 If you do not agree to these Terms, you are not authorised to access and use the Portal, and you must immediately stop doing so.
- 1.1 These Terms apply to your use of the Portal. By accessing and using the Portal:
- 2.1 We may change these Terms at any time by updating them on the Portal. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Portal, you agree to be bound by the changed Terms.
- 2.2 We may change, suspend, discontinue, or restrict access to, the Portal without notice or liability.
- 2.3 These Terms were last updated on 6 December 2016.
In these Terms:
including and similar words do not imply any limit
Confidential Information means these Terms and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, these Terms. Our Confidential Information includes the Intellectual Property owned by us (or our licensors) and any information made available through the Portal.
Intellectual Property Rights includes copyright and all worldwide rights conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks 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
Licence, Support or Services Agreement means any agreement between you and us in writing under which we licence you to use our software, provide maintenance and/or support services for our software and/or provide other services relating to our software
Loss includes loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis
personal information means information about an identifiable, living person
Underlying System means any network, system, software, data or material that underlies or is connected to the Portal
User ID means a unique name and/or password allocated to you to allow you to access the Portal
We, us or our means Flow Software Limited
Portal means https://www.flow.net.nz/
You means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting
4 YOUR OBLIGATIONS
- 4.1 You must provide true, current and complete information when setting up an account to access the Portal, and must promptly update that information as required so that the information remains true, current and complete.
You must keep your User ID secure and
- a not permit any other person to use your User ID, including not disclosing or providing it to any other person; and
- b immediately notify us if you become aware of any unauthorised use or disclosure of your User ID, by sending an email to email@example.com
use the Portal in accordance with these Terms solely for:
- i your own internal business purposes; and
- ii lawful purposes; and
- b not make the Portal available to any third party other than your employees.
- a use the Portal in accordance with these Terms solely for:
4.4 When accessing the Portal, you and your employees must:
- a not impersonate another person or misrepresent authorisation to act on behalf of others;
- b correctly identify the sender of all electronic transmissions;
- c not attempt to undermine the security or integrity of the Portal or the Underlying Systems;
- d not use, or misuse, the Portal in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Portal, including not using or introducing anything (including any virus, worm, Trojan horse, timebomb, keystroke logger, spyware or other similar feature) that in any way compromises, or may compromise, the Portal or any Underlying System;
- e not attempt to view, access or copy any material or data other than that to which you are authorised to access; and
- f not use the Portal in a manner that breaches any third party right (including Intellectual Property Rights and privacy rights) or is objectionable, incorrect or misleading.
- 4.5 A breach of these Terms by your employees is deemed to be a breach of these Terms by you.
- 4.6 You indemnify us against all Loss we suffer or incur as a direct or indirect result of your failure to comply with these Terms, including any failure of a person who accesses and uses our Portal by using your User ID.
5 INTELLECTUAL PROPERTY
- 5.1 Except as expressly agreed in any Licence, Support or Services Agreement, title to, and all Intellectual Property Rights in, the Portal (including all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel) and all Underlying Systems is and remains our property (or the property or our licensors). You must not dispute that ownership.
If you provide us with ideas, comments or suggestions relating to the Portal or Underlying Systems (together feedback):
- a 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
- b we may use or disclose the feedback for any purpose.
- 5.3 You acknowledge that the Portal may link to third party websites or feeds that are connected or relevant to the Portal. Any link from the Portal does not imply any endorsement, approval or recommendation by us, or responsibility of ours, 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.
6.1 To the extent permitted by law, we and our licensors have no liability or responsibility to you or any other person for any Loss in connection with:
- a the Portal being unavailable (in whole or in part) or performing slowly;
- b any error in, or omission from, any information made available through the Portal;
- c any exposure to viruses or other forms of interference which may damage your computer system or expose you to fraud when you access or use the Portal. To avoid doubt, you are responsible for ensuring the process by which you access and use the Portal protects you from this; and
- d any site linked from the Portal. Any link on the Portal to other sites does not imply any endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators.
- 6.2 We make no representation or warranty that the Portal is appropriate or available for use in all countries or that the content satisfies the laws of all countries. You are responsible for ensuring that your access to and use of the Portal is not illegal or prohibited, and for your own compliance with applicable local laws.
- 6.1 To the extent permitted by law, we and our licensors have no liability or responsibility to you or any other person for any Loss in connection with:
Each party must, unless it has the prior written consent of the other party:
- a keep confidential at all times the Confidential Information of the other party;
- b effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
- c 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 7.1a and 7.1b.
The obligation of confidentiality in clause 7.1a does not apply to any disclosure or use of Confidential Information:
- a for the purpose of performing any Licence, Support or Services Agreement, exercising a party’s rights under any such agreement or as otherwise permitted under any such agreement;
- b required by law (including under the rules of any stock exchange);
- c which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
- d which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality.
- 7.1 Each party must, unless it has the prior written consent of the other party:
8.1 To the maximum extent permitted by law:
- a you access and use the Portal at your own risk; and
- b we are not liable or responsible to you or any other person for any Loss under or in connection with these Terms, the Portal, or your access and use of (or inability to access or use) the Portal. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.
- 8.2 You agree and represent that you are accessing and using the Portal, and entering these Terms for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply to the Portal or these Term.
- 8.3 Except to the extent permitted by law, nothing in these Terms has the effect of contracting out of the New Zealand Consumer Guarantees Act 1993 or any other consumer protection law that cannot be excluded. To the extent our liability cannot be excluded but can be limited, our liability is limited to NZD100.
- 8.4 To the maximum extent permitted by law and only to the extent clauses 8.1 and 8.3 of these Terms do not apply, our total liability to you under or in connection with these Terms, or in connection with the Portal, or your access and use of (or inability to access or use) the Portal, must not exceed NZD100.
- 8.1 To the maximum extent permitted by law:
- 9.1 You are not required to provide personal information to us, although in some cases if you choose not to do so then we will be unable to make certain sections of the Portal available to you. For example, we may need to have your contact information in order to provide you with updates from our Portal.
- 9.2 When you provide personal information to us, we will comply with the New Zealand Privacy Act 1993.
- 9.3 The personal information you provide to us (including any information provided if you register for an account) is collected and may be used for communicating with you, statistical analysis, the marketing by us of products and services to you, credit checks (if necessary), and research and development.
9.5 Generally, we do not disclose personal information to third parties for them to use for their own purposes. However, some of the circumstances in which we may do this are:
- a to service providers and other persons working with us to make the Portal available or improve or develop its functionality (e.g. we may use a third party supplier to host the Portal);
- b in relation to the proposed purchase or acquisition of our business or assets; or
- c where required by applicable law or any court, or in response to a legitimate request by a law enforcement agency.
- 9.6 Any personal information you provide to us may be stored on the secure servers of our trusted service providers, which may be located outside New Zealand. This may involve the transfer of your personal information to countries which have less legal protection for personal information than New Zealand.
- 9.7 You have the right to request access to and correction of any of the personal information we hold about you. If you would like to exercise these rights, please email us at firstname.lastname@example.org.
10 SUSPENSION AND TERMINATION
- 10.1 Without prejudice to any other right or remedy available to us, if we consider that you have breached these Terms or we otherwise consider it appropriate, we may immediately, and without notice, suspend or terminate your access to the Portal (or any part of it).
- 10.2 On suspension or termination, you must immediately cease using the Portal and must not attempt to gain further access.
- 11.1 If we need to contact you, we may do so by email or by posting a notice on the Portal. You agree that this satisfies all legal requirements in relation to written communications.
- 11.2 These Terms, and any dispute relating to these Terms or the Portal, 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 or the Portal.
- 11.3 For us to waive a right under these Terms, the waiver must be in writing.
- 11.4 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 4.6, 5, 6, 7, 11.1, continue in force.
- 11.5 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 a 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.
- 11.6 These Terms set out everything agreed by the parties relating to your use of the Portal and supersede and cancel anything discussed, exchanged or agreed prior to you agreeing to these Terms. The parties have not relied on any representation, warranty or agreement relating to the Portal that is not expressly set out in the Terms, and no such representation, warranty or agreement has any effect from the date you agreed to these Terms.