“Available Time” twenty-four (24) hours per day, seven (7) days per week exclusive of Scheduled Downtime and downtime arising from causes beyond the reasonable direct control of the Provider, such as the interruption or failure of telecommunications or digital transmission links, hostile network attacks or a force majeure event.
“Business Hours” means Monday to Friday, 9am to 5pm. New Zealand standard time and excludes New Zealand public holidays.
“Confidential Information” includes any information provided by one party to the other under this Agreement and includes, without limitation, the Documentation, source code in relation to the Service and the Website and any information relating to the business or financial affairs, trade secrets, specialised know-how or practices of either party or its clients or customers. It does not include any information which is already in the public domain at the time it is disclosed to the other party, or becomes available to the public domain other than via breach of this Agreement, or was received by a third party who had the legal right to disclose the information, or was already in the recipient’s possession prior to being disclosed to the recipient by the other party.
“Data” means any data entered or uploaded to the Website by you or otherwise entered or uploaded with your express authority or using your username and password.
“Documentation” means the online Wiki (found at http://www.VisitorRego.com/Help/) which includes such information as is reasonably required to enable the proper and full use, operation and support of the Service.
“Intellectual Property Rights” means any patent, trade mark, service mark, copyright, moral right, design, know-how and any other intellectual or industrial property rights anywhere in the world whether or not registered.
“Provider” means Winware Limited (Company Number: 319693), a company incorporated in New Zealand.
“Scheduled Downtime” means downtime for maintenance support services, provided that we will use reasonable commercial efforts to minimise any disruption, inaccessibility or inoperability of the Service in connection with the Scheduled Downtime or other disruption.
“Service” means any services made available to you through the Website and includes any modifications, improvements or upgrades to such services.
“We”, “us” and “our” shall mean Pitney Bowes Australia Pty Limited (ABN 82 001 475 921) and any of our agents or employees.
“Website” means www.VisitorRego.com.
“You” and “your” shall mean the person accessing the Website and using the Service, including any of your employees.
By using the Service or browsing or using any part of the Website, you accept and agree to be bound by this Agreement.
3. USE OF THE SERVICE
Right to use
3.1 In consideration of you agreeing to the terms set out in this Agreement, we grant you a non-transferable and non-exclusive right to access and use the Service through the Website.
3.2 We will use our reasonable endeavours to ensure that the Service and the Website remain available to you 99.9% of Available Time.
3.3 Notwithstanding clause 3.2, to the maximum extent permitted by law we accept no responsibility whatsoever for any loss arising due to unavailability of the Service or the Website.
4. YOUR OBLIGATIONS
4.1 You will use the Service only for the purpose for which it was made available to you and in accordance with the Documentation.
Usernames and passwords
4.2 You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify us if you become aware of any unauthorised use of your username and password or any other breach of security and you agree to be responsible for any act or omission of any person who accesses the Website or the Service using your username and password.
Employees and contractors
4.3 You must ensure that your employees and contractors comply with the terms of this Agreement. Any breach of this Agreement by your employees and contractors (or any act or omission by any of them which would have been a breach of this Agreement if the act or omission had been undertaken by you) shall be deemed to be a breach of this Agreement by you.
4.4 You must not:
4.4.1 in any way infringe upon, adapt, alter, modify, revise, copy, create derivative works from, reverse engineer or decompile the Service or any part of it;
4.4.2 in any way interfere, attempt to interfere or cause or permit interference with the Service or its normal operation;
4.4.3 use the Service to violate any laws or regulations of any kind;
4.4.4 send us or enter into or upload onto the Website anything which infringes the rights of others or which contains a virus or other harmful item or which is unlawful, indecent, threatening or offensive or which could in any way create any liability on or loss to us;
4.4.5 undermine, or attempt to undermine, the security or integrity of our systems or networks, or where the Service is hosted by a third party, that third party’s computing systems and networks; and
4.4.6 attempt to gain unauthorised access to any materials other than those which you have been given express permission to access.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 All Intellectual Property Rights in the Service, Documentation, any modification or upgrade of the Service, and any other works provided in any form whatsoever to you by us or accessible to you because of your entry into this Agreement are and remain in the ownership of the Provider, or such other party as validly had, prior to this Agreement, ownership of the same.
5.2 You acknowledge no Intellectual Property Rights in the Service, the Website or the Documentation will pass to you and agree that you shall not contest or challenge the ownership of the Intellectual Property Rights in the Service, the Website or the Documentation.
6.1 You will defend, indemnify and hold us and the Provider, and our and the Provider’s officers, directors and employees harmless from and against any claims, losses, damages, expenses or liabilities (including reasonable attorneys’ fees and costs) resulting from any claim (“Data Claim”) by a third party that the Data (and/or the storing, transmission or use thereof) infringes that party’s Intellectual Property Rights or rights under the Privacy Legislation. We will provide you with prompt notice in writing of any such Data Claim, give reasonable co-operation, information, and assistance in connection with it (at your cost), and consent to your sole control and authority with respect to the defence, settlement or compromise of the Data Claim, except for settlements imposing liability or fault on us, which shall require our prior written consent.
7.1 You acknowledge and agree that:
7.1.1 we are not providing the Service to you, the only service we are providing to you is to grant you a non—transferable and non—exclusive right to access and use the Service through the Website on an “as is” basis;
7.1.2 to the maximum extent permitted by law, neither we nor the Provider shall be responsible or liable, whether in contract, tort, negligence or otherwise, for any loss or damage of any kind whatsoever, including, without limitation, interruption of business, access delays or data mis-delivery or destruction incurred by you in your use of the Service, the Website or the Documentation;
7.1.3 to the maximum extent permitted by law, neither we nor the Provider shall be in any way liable for any indirect, incidental, special or consequential damages incurred by you or any third party arising from any access to, reliance on or use of the Service, the Website or the Documentation;
7.1.4 to the maximum extent permitted by law, but subject to Clause 6.1, our (and the Provider’s) maximum liability for any and all claims (whether arising in contract, tort (including negligence) or otherwise) arising in connection with the Service, Website and/or this Agreement will not exceed an amount equal to the amount paid by you to us under this Agreement during the twelve (12) month period prior to the liability arising.
7.1.5 so far as the law permits all conditions and warranties on our part or the part of the Provider which might be implied in relation to this Agreement, the Service, the Website or the Documentation are excluded;
7.1.6 you agree that you have acquired the Service for business purposes and nothing in the Consumer Guarantees Act 1993 will apply to this Agreement.
Ownership, licence and warranties
8.1 Title to, and all Intellectual Property Rights in, the Data are, and will remain, your property.
8.2 We hereby grant you and the Provider a non-exclusive and non-transferable right and licence, during the term of the Service, to copy, transmit, store and backup the Data solely for the purposes of enabling you to access and use the Service.
8.3 You warrant that:
(a) you have the right to grant us and the Provider the licence under clause 8.2; and
(b) you are authorised to enter or upload the Data to the Website.
Third party applications
8.4 You acknowledge that the Service may utilise third party applications. Such third party applications:
8.4.1 are able to be used by you for the purposes of this Agreement;
8.4.2 are only licensed to you for use with the Service.
8.5 If third party applications are used in conjunction with the Service, you acknowledge that we may allow the providers of those third party applications to access the Data as required for the operation of their application. To the maximum extent permitted by law, we shall not be liable for any disclosure, modification or deletion of the Data resulting from any access by third party application providers.
9.1 The parties agree that any Confidential Information received under this Agreement shall remain confidential between the parties and be used only for the purposes of this Agreement.
9.2 Any Confidential Information received under this Agreement shall not be disclosed to any third party by the party receiving the Confidential Information without the prior written consent of the other party, for any reason other than is necessary to fulfil any party's obligations under this Agreement and otherwise as may be required by law.
9.3 This clause 9 shall survive the termination or expiry of this Agreement.
10. PRIVACY & USE OF PERSONAL INFORMATION
10.1 We acknowledge that the Data may contain “personal information” as that term is defined in the Privacy Act 1993 (New Zealand) and the Privacy Act 1988 (Australia), as amended (together the “Privacy Legislation”).
10.2 We and you agree and acknowledge that we and you are each responsible for complying with the Privacy Legislation.
10.3 We will use all personal information in the Data and any personal information we hold about you for the purposes for which it was provided and may also use it solely:
10.3.1 to monitor the use of the Service, for the purpose of improving the Service and our customer service (including marketing using non-identifiable statistics based on your use of the Service) and ensuring that the Service is not abused nor used wrongfully;
10.3.2 to comply with any statutory or regulatory obligation requiring disclosure or use of the information; and
10.3.3 to assist any law enforcement or governmental agency in the performance of their proper functions, if we reasonably consider disclosure or use of the information to be necessary for that purpose.
10.4 The Provider may use any personal information for the purposes described in clauses 9.3.1 to 9.9.3 above.
10.5 You are entitled to access personal information held about you by us and to request that it be corrected at any time according to the provisions of the Privacy Legislation.
11.1 Subject to earlier termination in accordance with this Agreement, you agree that your right to access and use the Service will commence on [x] and shall expire on [y]. .
11.2 This Agreement and your use of the Service may be terminated immediately by us if:
11.2.1 you breach any of your obligations under this Agreement and, if capable of remedy, do not remedy that breach within 14 days of our notification of such breach;
11.2.2 you become insolvent, cease trading, enter into a compromise or arrangement with your creditors, are placed into receivership, liquidation, bankruptcy or administration or have any of your assets compulsorily disposed of for the benefit of a creditor (in each case other than as part of a solvent reconstruction or amalgamation to which the other party has consented); or
11.2.3 you do or permit anything that causes significant and material harm to the Service.
11.3 You agree that you will have no right to claim any loss or damages from us following the termination of this Agreement.
12.1 No failure by us to exercise any power given to us under this Agreement or to insist upon strict compliance by you with any obligation under this Agreement and no custom or practice of the parties at variance with the terms of this Agreement and no waiver of any particular default by you shall constitute any waiver of any of our rights or your obligations under this Agreement.
12.2 Neither party will be liable for any failure to fulfil its obligations under this Agreement to the extent that such failure arises from any cause reasonably beyond its control (including any failure by the Provider to provide the Service through the Website otherwise than in connection with any act or omission by the party, strikes, lockouts, riots, acts of war, epidemics, governmental interference, fire, communication line failures, equipment failures, power failures or earthquakes or other natural disasters) and not from the fault or negligence of such party but such party must immediately notify the other of the cause of its failure to fulfil its obligations and must take all reasonable steps to minimise the effect of the cause and perform its obligations.
12.3 If any term or provision (the “offending provision”) of this Agreement shall be declared or become unenforceable, invalid or illegal, the other provisions of this Agreement shall remain in full force and effect as if they had been executed without the offending provision appearing and the offending provision shall nonetheless be enforceable and binding to the fullest extent permitted by the applicable law.
12.4 The termination, revocation, expiry or repudiation of this Agreement shall not in any way restrict any right to relief or damages to which we may be entitled under this Agreement.
12.5 This Agreement sets out the entire agreement and understanding between the parties in respect of your access and use of the Service through the Website and no representation, warranty, inducement or promise made by either party shall be of any force or effect unless made in writing and signed by both parties to this Agreement.
12.6 We may vary this Agreement at any time by giving you notice of any such change. If you do not accept any variation to this Agreement, you will no longer be entitled to use the Service.
12.7 Your rights under this Agreement are personal to you and you shall not assign, convey, subcontract, sub-licence or delegate any of your rights, duties or obligations under this Agreement without our express written consent.
12.8 We may in our sole discretion subcontract any of our obligations under this Agreement to the Provider, but in such event we shall remain responsible to you for the Provider’s performance of our obligations under this Agreement.
Governing law and jurisdiction
12.9 This Agreement and every matter arising from or in any way connected with the subject matter of this Agreement shall be governed exclusively by the laws of New Zealand and the parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand over all such matters.