Terms of Use

TERMS

The website at www.responseability.com (Website) and the ResponseAbility App (App) (together, the Platform) have been developed and are owned and operated by ResponseAbility Limited (NZCN 5724671) of Dunedin, New Zealand (we, us, our).

These terms comprise 3 Sections:

Section A: General Terms of Use, governing any access to and use of the Platform;

Section B: Account Terms, governing the creation of user accounts on the Platform (Accounts) and the provision of any services offered by us through the Platform (Services); and

Section C: Privacy, governing our collection and use of personal information in connection with the Platform.

 

Section A: General Terms of Use

 

1. Access and Use of the Platform

(a) By accessing, downloading, browsing or using any part of the Platform, you agree to be bound by these terms as amended from time to time (Terms).

(b) We may amend these Terms from time to time without notice. Any amendment will be effective immediately upon being posted on the Platform. Your continued use of the Platform after any amendment becomes effective will constitute your agreement to be bound by these Terms, as amended.

(c) We reserve the right to amend, update, vary and modify the Platform and the information, data, templates and documents that we make available on it (ResponseAbility Data), to change or discontinue any Service, feature or part of the Platform, and the equipment required to access the Platform, without notice and without liability. Your rights under these Terms will continue to apply to the Platform as modified and updated by us.

(d) You must comply with all procedures, instructions or acceptable use policies notified by us from time to time relating to access and use of the Platform.

(e) You warrant and undertake that you will not:

(i) Access or use the Platform for any purpose that is illegal or prohibited by these Terms, including without limitation the posting or transmitting of any defamatory, objectionable or illegal material.

(ii) Attempt to undermine the security or integrity of the Platform or any computing systems or networks used to host or make available the Platform;

(iii) Use, or misuse, the Platform or any Service in any way which may impair the functionality of the Platform or any Service, or other systems or networks used to host or make available the Service or impair the ability of any other user to access or use the Platform or any Service;

(iv) Not attempt to view, access or copy any materials or data other than that which you are authorised to access; or

(v)Not transmit, or input onto the Platform, any files that may damage any other person’s computing devices or software.

(f) If you breach these Terms then your permission to access or use this Platform terminates immediately without the necessity of any notice being given to you. We retain the right to deny access to any person who fails to comply with these Terms.

 

2. Intellectual property

(a) All intellectual and industrial property rights throughout the world, including copyright (including future copyright and rights in the nature of, or analogous to, copyright), inventions (including patents), any confidential information, trade marks or designs, whether or not existing and including any right to apply for the registration (and any renewals or extensions) of those rights (Intellectual Property Rights) in the Website, App, Platform and Services, and their content (including, without limitation, the ResponseAbility and VisAbility brands and logos, the design, user interface, layout, text, graphics, ResponseAbility Data, and all software and source code comprising or connected with the Platform) (ResponseAbility Intellectual Property Rights) are owned by or licensed to us or otherwise used by us as permitted by law.

(b) You are granted a limited non-exclusive and non-transferable right to access and use the Platform on the terms and conditions set out in these Terms.

(c) Except as expressly authorised by these Terms or otherwise agreed in writing by us, you may not reproduce, duplicate, download, copy, sell, resell or exploit any ResponseAbility Intellectual Property Rights or any part of the Platform, or permit any other person to do so.

 

3. Liability

(a) Your use of the Platform is at your sole risk. You acknowledge that the Platform is an information tool which can be used for the creation, access, completion, storage and management of forms and other documents. Templates and other information and tools provided on the Platform are provided for illustrative purposes for your convenience only. It remains your responsibility to review, interpret and verify all information and outputs provided by the Platform, in conjunction with other sources of information. The Platform does not constitute, and is not intended to constitute, advice of any kind.

(b) Except as expressly stated in these Terms, all representations, terms, warranties, guarantees or conditions (whether implied or by statute, common law or custom of the trade or otherwise) in respect of any Services supplied or to be supplied under these Terms are expressly excluded to the maximum extent permitted by law, including implied warranties, guarantees or conditions of merchantability and fitness for a particular purpose. To the maximum extent permitted by law we exclude any warranty that:

(i)  The use of any document or template on the Platform will meet any legal requirements;

(ii)  The Platform or any Service will meet your requirements;

(iii) The Platform or any Service will be uninterrupted, timely, secure or error free; or

(iv) Any errors in the Platform or any Service will be corrected.

(c) You acknowledge that we do not control any information uploaded or inputted to the Platform by users (User Content). By using the Platform, you may be exposed to User Content or other materials submitted by third parties or other users that may be offensive or otherwise objectionable. You acknowledge and agree that we are not responsible for any loss or damage that may be incurred by you as a result of any User Content provided by any person, or as a result of any reliance placed by you on the completeness, accuracy or existence of any User Content.

(d)The inclusion on the Platform of links to other sites or material outside the Platform, or the integration and display on the Platform of data from third party sources, does not imply any endorsement, approval or recommendation of, or responsibility for, the data, contents, operations, products or operators of those sites or sources. We take no responsibility for any damage or harm arising out of the inclusion of such links or integration of such data.

(e) Any material downloaded from or otherwise obtained through this Platform is at your own discretion and risk and you will be solely responsible for any damage to any computer hardware, software or system or loss of data that results from the download of that material.

 

4. International Use

We have used reasonable endeavours to ensure that the Platform complies with New Zealand laws. However, we make no representations that the materials on the Platform are appropriate or available for use in locations outside New Zealand. Those who access the Platform from other locations do so on their own initiative and are responsible for compliance with all applicable laws. If access or use of the Platform, or use of any material or content on the Platform or any Services offered through the Platform are contrary to or infringe any applicable law in your jurisdiction(s), you are not authorised to access or use the Platform and you must exit immediately.

 

5. Invalidity of any term       

Nothing in these Terms is intended to or will have the effect of excluding, restricting or modifying any condition, warranty, right or liability implied into this contract by mandatory applicable law where to do so is illegal or would render any provision of these Terms void. If any part of these Terms is held to be illegal or unenforceable, it will be severed from these Terms and the legality and enforceability of the remaining Terms will not be affected.

 

6. Dispute Resolution

(a) Subject to clause 6(e), where any question, dispute, controversy, claim or difference arises concerning or in any way arising out of these Terms, the Platform or any Services (Dispute), the parties must, without resorting to litigation, make a genuine effort to resolve the Dispute using the procedures set out in this clause 6.

(b) The party initiating the Dispute must provide a written notice (Dispute Notice) to the other party setting out the Dispute and nominating in the Dispute Notice its representative for the negotiations. The party receiving the Dispute Notice must then promptly give written notice to the other party naming its representative for the negotiations. Each representative nominated must have authority to settle or resolve the Dispute.

(c) If the parties are unable to resolve the Dispute by discussion and negotiation within [#21] days of receipt of a Dispute Notice, then the parties agree to mediate the Dispute in terms of the Resolution Institute standard Mediation Agreement (NZ version). The mediation will be conducted by a mediator and at a fee agreed by the parties. Failing agreement between the parties, the mediator will be selected, by the Chair for the time being of the Resolution Institute.

(d) If a Dispute is not settled within [#30] days of referral to mediation (or such longer period as may be agreed between the parties), the Dispute will be and is hereby submitted to arbitration in accordance with, and subject to, Resolution Institute Arbitration Rules. Unless the parties agree upon an arbitrator, either party may request a nomination from the Chair of the Resolution Institute.

(e) Nothing in this clause 6 will preclude or prevent a party from taking immediate steps to seek urgent interlocutory relief before an appropriate court, pending resolution of a Dispute in accordance with the procedure set out above.

 

7. Governing Law and Jurisdiction

(a) These Terms are governed by, and construed in accordance with, the laws of New Zealand.

(b) Subject to clause 6, you agree to submit to the exclusive jurisdiction of the Courts of New Zealand.

 

Section b: Account terms

 

8. Organisation and User Accounts

(a) Each person wanting to access, create or upload User Content (User)must create an account on the Platform (Account).

(b) Each User:

(i) Warrants and represents that any information submitted to the Platform by it or on its behalf is accurate and up to date;

(ii)  Must keep their Account login information (username and password) secure and confidential;

(iii) Is solely responsible for all activities that occur on or through their Account; and

(iv) Agrees to immediately notify us of any security breach of their Account.

(c) Users who register an organisation account (Organisations) and agree to pay the relevant    Charges in accordance with clause 11 of this Section B: 

(i) May create one or more domains on the Platform (Domains) for the creation and sharing of User Content by or on behalf of the Organisation;

(ii) May grant Users access to one or more of the Organisation’s Domains by designating a User as a member of that Organisation (Organisation Member) and categorising the User by assigning one or more of the available categories to the User in respect of that Domain;

(iii) May appoint one or more Users who are authorised to access and control the Organisation’s Account (Authorised Users); and

(iv) Must appoint a User as the administrator with overall responsibility for the control of the Organisation’s account (Administrator).

(d) The access rights of each User to any Account, Domain and User Content will depend on the rights granted to the User by the Organisation and may be revoked at any time by the Organisation. Non-Organisation Users:

(i) Must not permit any other person to use their Account;

(ii) Will not be able to access, upload or create User Content until they have been designated as an Organisation Member and granted access to a Domain by an Organisation; and

(iii) May be designated an Organisation Member of more than one Organisation.

(e) Each Organisation is solely responsible for any User Content submitted to the Platform and any representations made to us by it or any Organisation Member, Authorised User or Administrator of that Organisation. Each Organisation warrants and represents that:

(i)  All information provided to us by or on behalf of the Organisation is complete, accurate and current and not misleading; and

(ii)  It is the legitimate owner of, or has a valid license to use, any User Content provided to us or uploaded or inputted on to the Platform by or on behalf of the Organisation.

(f) Each Organisation agrees to indemnify and hold us harmless against any action, claim, costs (including legal costs on a solicitor-client basis), losses, proceedings, damages, liabilities or demand made by any third party due to or arising out of any use of the Platform, any User Content uploaded or inputted onto the Platform, any breach of these Terms, or violation of any law or rights of a third party, by the Organisation or its Organisation Members, Authorised Users or Administrator.

(g) Without limiting any other right or and remedy available to us, we may, at our sole discretion and without notice:

(i) Limit or suspend any access to the Platform or any part of the Platform;

(ii) Terminate any Account or Domain; and/or

(iii) Refuse to publish or forward, or delete, edit or remove any User Content on the Platform.

 

9. User Content

(a) Each Organisation will own the User Content uploaded to or inputted onto the Platform by its Organisation Members, Authorised Users and Administrator.

(b) By uploading or inputting User Content onto the Platform, each User grants us the right to use, modify, distribute and disseminate the User Content as part of the Service or for any other purpose (and you provide us with a perpetual, non-exclusive, transferable, sub-licensable, worldwide, royalty-free license to do the same in respect of any Intellectual Property Rights in your User Content). You agree that we have the right to use User Content to provide, promote, and improve the Service and to provide User Content to third parties for their use, modification, distribution or dissemination, including as part of any other product or service[#, provided that we do so in a manner that does not disclose any confidential information of the Organisation or personal information of any User].

(c) We reserve the right (but will have no obligation) to remove any User Content which we consider breaches these Terms, including content that we consider is abusive, deceptive, misleading, defamatory, offensive or otherwise inappropriate.

 

10. Provision of Services

(a) We will use reasonable endeavours to:

(i) Provide the Services in accordance with reasonable standards of diligence, care and attention; and

(ii) Make the Platform and Services available, subject to any downtime required for routine maintenance and upgrades.

However, we do not guarantee or warrant that the Services or the Platform will be uninterrupted, continuous, timely, secure or error-free.

(b)Unless we expressly agree otherwise in writing, stipulations as to time are not of the essence. We will use reasonable endeavours to provide the Services in accordance with any timelines or milestones agreed in writing by the parties but will not be liable for any loss or damage arising from any delay, however caused.

(c) Each Service is provided only to the Organisation that has engaged us to provide that Service and we are not liable to any other party in connection with that Service.

(d) Certain Services(including the VisAbility Module, which provides a 3D visualisation tool for RAMM data) may depend on the use of web services and APIs to integrate with thirdparty services or data. We do not make any warranty or representation as to the availability of those features or data and may cease to provide any Service without liability to you if a third party ceases to make available the access needed to provide that feature on terms satisfactory to us (in our absolute discretion). You are responsible at your cost for obtaining and maintaining any licence required to use or access any third party service or data integrated with the Platform (including, without limitation, RAMM data).

(e) We make no representations and give no warranties, express or implied that making the Services available in any particular jurisdiction outside New Zealand is permitted under any applicable non-New Zealand laws or regulations. Accordingly, if making any Service available in your jurisdiction or to you (by reason of nationality, residence or otherwise) is prohibited, that Service is not offered to you. You accept that if you are resident outside New Zealand, you must satisfy yourself that you are lawfully able to acquire and use the Services. We will have no liability, to the extent permitted by applicable law, for any costs, losses or damages resulting from or related to any access or use of the Services by persons in jurisdictions outside New Zealand.

 

11. Payment

(a) By creating an Organisation Account or ordering any Services you agree to pay the applicable fee for each service period for each Organisation Member you authorise to access any of your Domains, as specified on the Platform or otherwise agreed in writing with us (Charges).

(b) Unless otherwise agreed in writing with you, we may change the Charges at any time. Any change to the Charges will apply automatically from the next applicable service period after notice of the change is posted to the Platform or otherwise notified to you in writing. If you do not wish to accept the new Charges, you may cancel the Service in writing in accordance with clause 12.

(c) The prices are exclusive of all applicable taxes, including any Goods and Services Tax payable under the Goods and Services Tax Act 1985, which will be payable in addition to the prices.

 

12. Cancellation / Termination

(a) Except where we have agreed in writing with an Organisation that any Service will be provided for a fixed period, an Organisation may cancel any Service at any time through the Platform. Cancellation will take effect from the end of the then current period of the Service and will not affect the Organisation’s liability to pay the Charges in respect of the then current Service period.

(b) We may terminate any Account immediately by notice in writing if:

(i) We consider that the Account holder is in breach of these Terms;

(ii) If an application to wind up the Account holder has been made;

(iii) If a liquidator, receiver or administrator or statutory manager has been appointed to all or substantially all of the property of the Account holder; or

(iv) The Account holder is insolvent or presumed to be insolvent under any applicable laws.

(c) The cancellation, expiry or termination of all or any part of the Services will be without prejudice to the rights of the parties accrued up to the date of such cancellation, expiry or termination.

 

13. Consumer Guarantees Act and Fair Trading Act

(a) Each Organisation acknowledges that the Services are purchased relying solely upon the their own skill and judgment, and not on our representations or other conduct.

(b) Where the Services are supplied to and acquired by an Organisation in trade for the purposes of a business:

(i) The Consumer Guarantees Act 1993 does not apply; and

(ii) The parties contract out of the Fair Trading Act 1986 to the maximum extent possible, and the parties agree that it is fair and reasonable that the parties are bound by this clause.

 

Section C: Privacy

 

14. Collection and use of personal information  

 

(a) We comply with the Privacy Act 1993 (NZ) and the Privacy Principles set out in that Act when dealing with personal information about individuals.

(b) By accessing or using the Platform and/or providing information to us, you consent to our collection, use and storage of your personal information. We will only use personal information for the purpose for which it is provided, including for the purposes of supplying Products or services, carrying out credit checks, debt collection, enforcing any rights under these Terms and providing you with information about goods or services we think might be of interest to you. We may also use information you provide, including any User Content in an aggregated form that does not identify you.

(c) Personal information collected may be transferred to, stored and processed in any other country in which we or our affiliates, subcontractors or agents maintain facilities, including the United States and countries outside the European Economic Area (EEA). This means that your information may be processed in countries with lower data protection standards than your country of residence. By accessing or using the Platform and/or providing information to us, you consent to any transfer, processing or storing of information outside of your country of residence and, where applicable, outside the EEA.

(d) You have the right to access personal information that we hold about you and to request correction of that information.

 

15. Cookies

(a) The Platform uses cookies, including to manage Account and Platform functionality, for analytics (including Google Analytics), as part of its social media tools and for conversion tracking.

(b) Cookies are small data files which are temporarily stored on your computer. Cookies are used to track changes to the shopping cart on the Website (including when you add or remove items from the cart) and a unique session code is used to identify the cart data for each customer at checkout. These cookies do not contain any personal information.

(c) In order to access and use the Platform your computer or device must be set up to accept cookies.