1. IMPORTANT NOTICE
This page sets out the
terms and conditions upon which Real NZ Software ("We", "Our" and "Us") will
provide services to its customers ("You" and "Your").
This page creates
important legal rights and obligation upon Us, as well as You.
By clicking on the "I
AGREE" button below you offer to enter into the following terms and conditions
If you do not agree with
these terms and conditions You should not submit this form.
If You decide to use the
Services by clicking on the "I AGREE" button, these terms and conditions become
a legally binding agreement between You and Us ("Our Agreement").
In Our Agreement, the
following words and phrases have the following meanings:
2.1. API means
the Real NZ Live Application Programming Interface which allows remote access to
means Your ability to access the Services on the Real NZ Software Server(s).
2.3. Business Day
means a day upon which banks are ordinarily open for business in Auckland, New
Date means the date that that You clicked on the "I AGREE" button.
means data, information, images, and all other content that You put onto the
Real NZ Software Servers.
2.6. Fees means:
a. Our fees for Services as
appearing on our website and updated from time to time, and
b. any other fees You and
We agree upon at Our prevailing rates for other Services.
2.7. Force Majeure
means a circumstance beyond Our reasonable control results in Us being unable to
observe or perform on time an obligation in Our Agreement, including:-
a. acts of God, lightning
strikes, earthquakes, floods, storms, explosions, fires, power supply
disruptions (howsoever caused), internet downtime and any natural disaster;
b. acts of war, acts of
public enemies, terrorism, riots, civil commotion, malicious damage, sabotage
and revolution; and
c. industrial action or
2.8. Harmful Code
means viruses, worms, trojan horses, spyware, malware, backdoor, and other
computer programs and software code that harm a computer or a computer program,
or operate in some other harmful or destructive way to hardware, software, data,
or communications systems.
2.9. Knowledge Centre
means the online help application forming part of the Services.
Services means the multimedia services the scope of which is agreed upon in
writing between Us and You.
Services means computer programming services the scope of which is agreed
upon in writing from time to time between Real NZ Software and You.
(Recommended Retail Price) means all fees inclusive of GST or administration
means the Services, the Support Services, the Training Services, the Programming
Services, and the Multimedia Services.
Services means the support services we provide, as described elsewhere on
Maintenance Time means the time that the Real NZ Software Servers are
inaccessible for reasons of systems maintenance, improvement, or upgrading.
2.16. Term means
the term of Our Agreement, from the Commencement Date, until Our Agreement is
terminated in accordance with clause 4.
Services means the personal training services the scope of which is agreed
upon in writing from time to time between Real NZ Software and You.
mean the use of Real NZ Software’s applications product for SMS and email
e-marketing, including all modules and features of the application from time to
time accessible by internet from the Real NZ Software Servers, including data
hosting and data management features.
2.19. Real NZ
Software Server(s) means the hardware infrastructure where We host the
3.1. In this Agreement,
unless the contrary intention appears:-
a. words in the singular
number include the plural and vice versa;
b. words importing a gender
include any other gender;
c. a reference to a person
includes bodies corporate and unincorporated associations and partnerships;
d. where a word or phrase
is given a particular meaning, other parts of speech and grammatical forms of
that word or phrase have corresponding meanings;
e. a reference to a party
includes its successors and assigns (where permitted);
f. a reference to the any
schedule includes a reference to any part of that schedule which is incorporated
g. the recitals to this
Agreement do not form part of the Agreement;
h. monetary references are
references to Australian currency.
3.2. If any term,
covenant, clause or condition of this Agreement, or the application of it to any
person or circumstance, is deemed to be invalid or unenforceable, the remaining
terms, covenants and conditions will not be affected and will be valid and
4. TERM AND
4.1. Our Agreement
commences on the Commencement Date.
4.2. Our Agreement
continues until it is terminated by either You or We giving to the other a Written Notice terminating Our Agreement.
4.3. You or We may
terminate Our Agreement at any time, without giving any reason for termination.
4.4. Notwithstanding the
termination of Our Agreement, You must pay all amounts owing to Us for Services
provided up to the time of termination which date is determined by clause 4.2.
a. Subject to clause 4.4,
after the date of termination, any Content required to be extracted, where
possible, from the Services will attract additional Fees.
5.1. We will promptly
provide to You all necessary login codes to access the Services on the Real NZ
5.2. For the Term, We
will provide the Services to You by enabling You (through the login codes
notified by Us to You) to access the Services in accordance with Our Agreement.
5.3. You acknowledge
that internet servers and links are susceptible to hacking, crashes and down
5.4. Subject to a Force
Majeure Event, and to System Maintenance Time, We will ensure (by ping test)
that the Servers are available through the internet, 24 hours per day, for at
least 99.8% of the time.
5.5. We do not warrant
any response rate or download time in relation to the Services.
5.6. We may, at Our own
discretion, temporarily suspend the Services for the purpose of system repair,
maintenance or improvement.
5.7. When it is
reasonably practicable under the circumstances, We will provide You prior notice
of any System Maintenance Time, the time of its commencement, and likely
5.8. In the event of any
service outage, We will restore the Services as soon as is reasonably
5.9. You acknowledge
that it is impossible to maintain flawless security, but We will take reasonable
steps to prevent security breaches in Your server's interaction with the Real NZ
5.10. You and We must
website) in relation to the use of the Content.
5.11. Real NZ Software
will comply with the Privacy Act.
5.12. You acknowledge
that any Content uploaded for public view in the Knowledge Centre is free of
copyright and We may edit, redisplay or remove that Content at Our sole
discretion at any time.
6.1. You must comply
with the SPAM Act and any other similar law in all countries of the world.
6.2. You must ensure the
security of Your login codes to the Services, and that only properly authorised
persons have access to those codes.
6.3. You must pay the
Fees in relation to the Services accessed with Your login codes by any person to
whom You has provided Your login codes or who obtained those login codes from
You, whether authorised by You or not.
6.4. You will procure
that Your employees and other persons authorised by You to access the Real NZ
Software Servers comply with Our Agreement.
6.5. You agree that You
are solely responsible for implementing Your own procedures to satisfy Your own
requirements for accuracy of data input and output and Content, and for
maintaining a means external to Us for the reconstruction of any of Your lost
data or Content.
6.6. You warrant that
the Content will not infringe the copyright or other intellectual property
rights of another person.
6.7. You must not
disseminate through the Services any Content that is:
a. abusive, harassing or
c. illegal in New Zealand,
d. illegal in any country
to which the dissemination occurs,
e. Harmful Code, or,
f. defamatory or offensive.
6.8. You indemnifies Us
from and against any loss or damage (including loss of profits) that We may
suffer arising from:
a. any breach by You of the
terms of Our Agreement,
b. any misuse of Your login
codes by You, or by any person whose access to Your login codes was from You, or
Your failure to maintain the security of Your login codes, including any misuse
that results in Content loss or misuse or Harmful Code upon the Real NZ Software
c. any breach by You of Our
Agreement or any misuse of Your login codes resulting in any IP Address becoming
subject to blacklisting (for example by SORBS), including the cost
(approximately $150 per IP Address) to Us of remedying any blacklisting.
6.9. You agree to use
the Services in an acceptable manner where your usage is concurrent with
expected usage which includes, among other things:
a. Prohibiting the use of
automated methods to extract data from the Services (not including the API)
b. Not causing inbound
data, excluding Content uploaded into the file manager that has its own rates
above 50Mb, to the Real NZ Server Servers to exceed 100Mb per month, where
excess data will be charged at a rate of .55c per mb.
6.10. You are
responsible for your and any of your clients Content and shall be responsible
for maintaining a backup copy of the Content.
6.11. You agree not to
use the Service for any other purpose than that for which it is intended.
7. SUPPORT SERVICES
7.1. We will provide the
Support Services during usual business hours between 9.00 am and 5.00pm on
7.2. Support Services
will be provided in the first instance by on line help accessible within the
Services, in the second instance by email, and in the third instance by
telephone (contact details available on Our webpage).
7.3. Free Support
Services are limited to "How To" questions on product usage. Other Support
Services may attract fees. At all times You will be notified prior to any fees
being charged to You.
8. OTHER SERVICES
8.1. You and We may
agree in writing that We will undertake Programming Services, Training Services,
Multimedia Services or specific Support Services.
8.2. Any such agreement
in writing will set out
a. the scope of the work to
b. the remuneration to be
paid by You to Us, and
c. the timeframe for the
work to be undertaken.
9. FINANCIAL TERMS
9.1. You must pay the
Fees to Us, plus the applicable goods and services tax; or where your
organisation resides outside New Zealand, administration fees that are included
in the RRP of the Services.
9.2. We must provide to
You an invoice complying with the A Tax System (Goods and Services Tax)
9.3. You must pay
invoices within the time notified upon Our invoices.
10. EXCLUSION AND
LIMITATIONS OF LIABILITY
10.1. You use the
Services, including the Services entirely at Your own risk.
10.2. You acknowledge
that We have not made any representation or warranty that is not expressly
contained in Our Agreement.
10.3. You do not rely
upon any statement or representation by Us or on Our behalf that is not
expressly contained in Our Agreement.
10.4. You acknowledge
that We have not made any warranty or representation as to
a. the suitability of any
Service for any purpose or any particular purpose;
b. whether any Service is
of merchantable quality; or
c. whether any Service will
be free of errors or bugs.
10.5. We exclude any
liability for any Harmful Code that You may download from Our website.
10.6. We shall have no
liability to You arising from any system downtime, any System Maintenance Time,
or any Force Majeure Event, and You are not entitled to any setoff, discount,
refund or credit arising from any of the foregoing.
10.7. Our maximum
liability to You for any loss or damage whatsoever shall be the re-performance
of the Services.
11.1. We will maintain
the Content in confidence, and will not disclose the Content without Your prior
11.2. Clause 11.1 does
not apply to the extent that We have a legal obligation to disclose the Content.
11.3. We will not sell
the Content to any person.
11.4. You acknowledge
that some of Your Content (such as Your database of email addresses) may at the
same time be part of the content of Our other customers.
11.5. You acknowledge
that We have an obligation to report any illegal act by You, and accordingly We
are under no obligation of confidentiality in relation to any such illegal act
12.1. We will promptly
notify each other in writing of any dispute in connection with Our Agreement.
12.2. Upon the written
notification of a dispute, You and We shall use our best endeavours to resolve
the dispute in good faith, and expeditiously.
12.3. If a dispute has
not been resolved within 5 Business Days, You and We will refer the matter to
our respective Chief Executive Officers (or a senior person delegated by a Chief
Executive Officer), who shall use their best endeavours to resolve the dispute
in good faith, and expeditiously.
12.4. If the dispute has
still not been resolved with a further 5 Business Days, You and We will use our
best endeavours in good faith to within a further 5 Business Days agree upon an
alternative dispute resolution process (such as mediation, arbitration,
conciliation, or expert determination) to resolve the dispute, and shall in good
faith implement that alternative dispute resolution process.
12.5. Neither You nor We
may commence legal proceedings against the other until You and We have complied
with clauses 12.1 to 12.4.
12.6. Clause 12.5 does
not apply to any urgent interlocutory relief.
13. VARIATION OF OUR
13.1. We may vary any
term of Our Agreement at any time. Notification of any variation will be posted
within the Services.
13.2. The variation
takes effect 30 days after notice of the variation is posted.
13.3. If You do not
agree to be bound by the variation, You may by written notice to Us, terminate
this Agreement before the expiration of that 30 day period.
14. SERVICE OF
14.1. Any notice
(including a notice under clause 12) may be served by delivery to, or sending it
by post or facsimile to the party to be served, or by sending it by email:
a. if to Us, send to
or any other email We may post, or
b. if to You, to an email
address notified by You to Us in Your management of Your online Real NZ Software
14.2. A notice that is
posted shall be deemed received seven days after the date of posting.
15. GOVERNING LAW
15.1. Our Agreement is
governed by and to be construed according to the law of New Zealand.
15.2. You and We
irrevocably submit to the non-exclusive jurisdiction of the courts of New
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