The following terms and conditions (the “Agreement”) govern your use of the Site App Pro application (the “Application”). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to do so, in which case the terms “you” or “your” shall refer to that entity.You subscribe to the software as the individual, company, or legal entity that will be utilizing the Application, on the condition that you accept all of the terms of this Agreement. This is a legal and enforceable contract between you and Site App Pro.Site App Pro may change these Terms and Conditions at any time in its absolute discretion and such changes shall take effect from the date that they are placed on Site App Pro’s website.Site App Pro will not refund any subscription fees paid if you later disagree with this Agreement.
DEFINITIONS
As used in this Agreement and on any web pages now or hereafter associated herewith:
“Agreement” means these terms of use and any materials available on the Site App Pro website specifically incorporated by reference herein, and such materials, including the terms of this Agreement, as may be updated by Site App Pro from time to time in its sole discretion.
“Application” means the Site App Pro software, accessible via www.safefoodpro.co.nz or another designated website or IP address, or ancillary online or offline products and services provided to you by Site App Pro, to which you are being granted access under this Agreement, including the Site App Pro Technology and any subsequent versions and updates thereto.
“Customer Data” means any data, information or material provided or submitted by you to the Application in the course of using the Application.“Login Information” is the username and password that are unique to each user under your account.
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, Work Requests, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.“Site App Pro” means Site App Pro Limited, a New Zealand company, having its principal place of business at Level 2, 84 Mokoia Rd, Birkenhead, Auckland, New Zealand and its successors and assignees.
“Site App Pro Technology” means all of Site App Pro’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Site App Pro in providing the Application.“User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Application and have Login Information supplied by you (or by Site App Pro at your request).
“Applicable taxes” means any value-added or sales tax which Site App Pro may become liable to pay as a result of any amount payable to Site App Pro under this agreement.
“Work Request” means any request or suggestion by you for a change or enhancement to the functionality and/or usability of the Application, or request for training. When complete, any such alteration to the Application will automatically become available to all customers, including you, at the next update to the Application.
ACCOUNT INFORMATION AND DATA
Site App Pro does not own any Customer Data. You, not Site App Pro, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data.Where Site App Pro is hosting the Application:Site App Pro will make all reasonable endeavour’s to ensure that Customer Data is stored securely and is regularly backed up according to generally-accepted industry standards.In the event this Agreement is terminated (other than by reason of your breach), Site App Pro will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination.
Site App Pro reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment.
Upon termination for cause, your right to access or use Customer Data immediately ceases, and Site App Pro shall have no obligation to maintain or forward any Customer Data.
You are responsible for maintaining the confidentiality of your Login Information, and you will be responsible for all uses of your Login Information, whether or not authorized by you. In the event that you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of your Login Information, you must immediately notify Site App Pro by emailing customercare@siteapppro.co.nz.
ASSIGNMENT
This Agreement may not be assigned by you without the prior written approval of Site App Pro but may be assigned without your consent by Site App Pro to:a parent or subsidiary an acquirer of assets a successor by merger
INTELLECTUAL PROPERTY OWNERSHIP
Site App Pro alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Application and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Application. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Application or the Intellectual Property Rights owned by Site App Pro. The Site App Pro name, the Site App Pro logo, and the product names associated with the Application are trademarks of Site App Pro or third parties, and no right or license is granted to use them.
CONTENT UPDATES
The application requires certain third party software products to be installed on your computer, including an operating system, an Internet browser, and browser plug-ins. Site App Pro sets minimum requirements in regard to these third party software products, and updates to the Application may require you to, independently and at your own expense, source and install updates to any or all of these third party software products.Site App Pro reserves the right to suspend your access to the Application until such third-party software products are installed and/or updated.Where Site App Pro is hosting the Application:Site App Pro may, from time to time, update the Application which Site App Pro hosts on its servers and makes available for you to access over an Internet connection. Any and all such updates shall become immediately available to you on your next login.Access to the Application may be temporarily suspended while updates are applied.Site App Pro may, from time to time, make available to you updates to the Application.You are responsible for updating the Application according to your internal procedures. Duplicate copies of the application are allowed for internal testing and live use. Site App Pro reserves the right to suspend your access to support for versions of the software which have not been updated.
SUBSCRIPTION
The Application is the exclusive property of Site App Pro and is protected by copyright law. While Site App Pro continues to own the Application, you will have certain rights to use the Application after your acceptance of this Agreement. This Agreement governs any releases, revisions, or enhancements to the Application that Site App Pro may publish for your use.
Site App Pro hereby grants you a non-exclusive, non-transferable, international right to use the Application, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Site App Pro.
You shall not:license, sub-license, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application in any way; or modify or make derivative works based upon the Application; or reverse engineer or access the Application in order to:build a competitive product or application build a product using similar ideas, features, functions or graphics of the Application copy any ideas, features, functions or graphics of the Application use the Application in any manner restricted or not authorized by this Agreement User subscriptions cannot be shared or used by more than one individual user, but may be reassigned from time to time to new users who are replacing former users who have terminated employment or otherwise changed job status or function and no longer use the Application.
YOUR RESPONSIBILITIES
You are responsible for all activity occurring in connection with your use of the Application, and shall abide by all applicable local, state, provincial, national and foreign laws, treaties and regulations in connection with your use of the Application, including those related to data privacy, international communications and the transmission of technical or personal data.Where Site App Pro is hosting the Application, you shall:notify Site App Pro immediately of any unauthorized use of any password or account or any other known or suspected breach of security;report to Site App Pro immediately and use reasonable efforts to stop immediately any copying or distribution of content that is known or suspected by you or your users; and not impersonate another Site App Pro user or provide false identity information to gain access to or use the Application. You agree that you will not: modify or cause to be modified any files that are a part of the Application Site App Pro reserves the exclusive right to create derivative works based on the Application.
CHARGES AND PAYMENT OF FEES
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable.Unless exempted by the terms of any special promotion, you must purchase a subscription for every User. Non-human resources which are managed through the Application but do not require their own access to the Application are exempt from the subscription requirement, provided they are counted within your overall resource limit set by Site App Pro and reviewed from time to time.The charges will be equal to the current number of total User subscriptions multiplied by the User subscription fee currently in effect. Payments will be made as mutually agreed upon. You are responsible for paying for all User subscriptions, whether or not such subscriptions are actively used. You must provide Site App Pro with valid credit card or approved purchase order information as a condition to subscribing to the Application. Added subscriptions will be subject to the following:added subscriptions will be coterminous with the pre-existing subscriptions’ term; and the subscription fee for the added subscriptions will be the subscriptions fee applicable when the pre-existing subscriptions were purchased; and subscriptions added in the middle of a month will be charged in full for that month.Where you have opted for automatic monthly charging of subscriptions, these will be processed against the same credit card on the same day of the month as the original subscription.Site App Pro reserves the right to modify its fees and charges and to introduce new charges at subscription renewal, upon at least 30 days’ prior notice to you. All pricing terms are confidential, and you agree not to disclose them to any third party.Fees for other services will be charged on an as-agreed basis.Site App Pro will add applicable taxes to the subscription fee.NON-PAYMENT AND SUSPENSION In addition to any other rights granted to Site App Pro herein, Site App Pro reserves the right to suspend or terminate this Agreement and your access to the Application if your subscription falls into arrears.
DISCLAIMER OF WARRANTIES
The Application is provided to you strictly on an “as is” basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by Site App Pro.Where Site App Pro is hosting the Application, Site App Pro does not warrant that the Application will function and/or communicate correctly due to third-party software installed by you.
INTERNET DELAYS
The Application may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Site App Pro is not responsible for any delays, delivery failures, or other damage resulting from such problems.
EQUITABLE REMEDIES
In the event that you breach this Agreement, you hereby agree that Site App Pro would be irreparably damaged if this Agreement were not specifically enforced, and therefore you agree that Site App Pro shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Site App Pro may otherwise have available to it under applicable laws.
LIMITATION OF LIABILITY
While Site App Pro takes all reasonable care to ensure that the Application is compliant with The New Zealand Health and Safety at Work Act 2015 and all other applicable laws and regulations (“NZ Laws”), it does not warrant that your use of the Application will meet all requirements imposed on your workplace by NZ Laws or by the laws of any other country. Site App Pro accepts no liability or responsibility for any losses, expenses, fines or other costs incurred by you and arising from your use of Site App Pro whatsoever.Site App Pro shall also not be liable in any way for damage or loss of any kind resulting from:the use of or inability to use the Application, including, without limitation, loss of goodwill, work stoppage, computer failure or malfunction the loss of or damage to user data stored by the Application interruptions of service including without limitation ISP disruptions, software or hardware failures or any other event which may result in a loss of data or disruption of service In no event shall Site App Pro be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with the Application, including but not limited to the use or inability to use the Application, or for any content obtained from or through the Application, any interruption, inaccuracy, error or omission, regardless of cause in the content, even if the party from which damages are being sought or such party’s licensors have been previously advised of the possibility of such damages.
FORCE MAJEURE
Site App Pro shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Site App Pro, including without limitation any failure to perform here under due to unforeseen circumstances or cause beyond Site App Pro’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
TERMINATION
This Agreement commences on the earlier of the date on which you accept it or the date of first use of the Application. The term of Agreement is one year from the commencement date, unless agreed otherwise, and is automatically renewed when subscription fees are due. You are not entitled to any refund for any prepaid subscriptions. Where Site App Pro terminates the agreement for any reason, you will be liable for all outstanding subscription and other fees for the term of the commitment at Site App Pro’s then-current rates. These will be charged in a lump sum at termination. Either party may terminate this Agreement by giving 30 days prior written notice to the other Party of its intention to terminate. Additionally, you may reduce the number of user subscriptions by giving 30 days prior written notice to Site App Pro
GOVERNING LAW
This Agreement shall be governed by New Zealand law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Application shall be subject to the exclusive jurisdiction of the District Court located in Auckland, New Zealand. No text or information set forth on any other purchase order, pre-printed form or document shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Site App Pro as a result of this Agreement or use of the Application. The failure of Site App Pro to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Site App Pro in writing. This Agreement comprises the entire agreement between you and Site App Pro, and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
DISPUTE RESOLUTION
Informal Negotiations To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement, you and Site App Pro agree to first attempt to negotiate any dispute (except those disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one party to the other. Site App Pro will send its notice to your billing address and email you a copy to the email address you have provided to us. You will send your notice to Site App Pro, PO Box 34728, Birkenhead, Auckland 0746, New Zealand and email a copy to customercare@siteapppro.co.nz.
Binding Arbitration
If you and Site App Pro are unable to resolve a dispute through informal negotiations, either you or Site App Pro may elect to have the dispute (except those disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. Subject to approval by the arbitrator, the arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Site App Pro may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. Restrictions You and Site App Pro agree that any arbitration shall be limited to the dispute between Site App Pro and you individually. To the full extent permitted by law:no arbitration shall be joined with any other there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons Exceptions to Informal Negotiations and Arbitration You and Site App Pro agree that the following disputes are not subject to the above provisions concerning informal negotiations and binding arbitration:any disputes seeking to enforce or protect, or concerning the validity of, any of your or Site App Pro’s intellectual property rights any dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use any claim for injunctive relief
Location
Any arbitration shall be initiated in the Auckland District Court, New Zealand. Any dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within New Zealand, and you and Site App Pro agree to submit to the personal jurisdiction of that court.
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