ebizdocz ® Limited (we, us, our) agrees to provide online access to the Service at the Business Location(s), and the customer (you, your) agrees to pay the Fees and other amounts set out in the Terms of Use set out below (Terms of Use).

KEY POINTS:
 

1                     Definitions

In these Terms of Use, unless the context requires otherwise:

Business Location(s) means the address of your business being the Location(s) specified on the Application Form or as notified by you for which we provide you a username and password to enable you to access to the Service.

Intellectual Property means all intellectual and industrial property rights and interests (including common law rights and interests) including:

(a)            patents, trade marks, copyright, registered designs, domain names, symbols and logos;

(b)            patent applications and applications to register trade marks, service marks and designs; and

(c)             tools; techniques, inventions, discoveries, developments, trade secrets, know‑how, information and logical sequences (whether or not reduced to writing or other machine or human readable form);

GST means goods and services tax payable under the New Zealand Goods and Services Tax Act 1985;

Password means the unique username, password and any other security measures we provide to enable you to access the Service and/or to protect the confidentiality of the information; and

Your Information means any information posted on the Service by you and which is stored on the Service.

2                  Fees and Payment

2.1            You agree to pay the Fees to us on the Payment Terms.

2.2            We reserve the right to change the Fees during the Term, for example if the Services are required to be provided from additional Business Locations other than as provided on the Application Form.

2.3           The Fees are non-refundable.

2.4           If any deduction or withholding is required by law in relation to any amount paid or payable by you under these Terms of Use, you will increase the payment so that, after the deduction or withholding, we receive and retain (free from any tax liability) a net amount equal to the amount we would have received and retained had the deduction or withholding not been made.

2.5            If you fail to pay the Fees to us in accordance with these Terms of Use, you will be in default and will on demand by us pay to us default interest on the amount due from the due date of payment until the date of actual payment at a rate equal to 3% above the current overdraft rate that we have with our principal banker, in addition to you remaining liable for the full amount outstanding.

3                  Your use of the Service

3.1            You must:

(a)            only use the Service for the Business Location(s) described on the Application Form, for the purposes for which it is provided and in accordance with any reasonable directions given by us;

(b)            not allow or provide unlicensed third parties access to the Service without our prior written consent, provided that you may allow persons who are employed or contracted to your business to use the Password to access the Service.  You need to inform those individuals that their use of the Service is subject to these Terms of Use and to provide them with a copy of these Terms of Use for that purpose;

(c)             not use the Service in any way which is illegal or may cause harm to any other person, or could damage our network or that of any other operator and you indemnify us against any claims, damages, losses or expenses arising from such unauthorised use;

(d)            use all reasonable efforts to protect the Service from unauthorised use, reproduction, distribution or publication; and

(e)            you are fully responsible for all individuals using the Service through or with your Password, and for any consequences if such an individual misuses the Service or breaches these Terms of Use.

4                  Our Obligations and Warranties

4.1            We will provide the Service on the terms of these Terms of Use.

4.2             Services include, but may not be limited to Quality Management Systems and Health and Safety Systems using processes as indicated below including:

(a)                Online documentation management

(b)                Content management

(c)                Online forms and formats

(d)                Online training

(e)                Consultancy Services

4.3            If you subscribe to our support and maintenance service, in consideration for the Maintenance Fee we will use all reasonable endeavours to update the Service within 30 days of a relevant change becoming legally effective.

4.4            We will:

(a)            take every reasonable precaution to ensure that the Service is reliable, adequate, and secure;

(b)            use reasonable endeavours to provide you with continuous access to the Service, but we do not warrant that the Service will be continuously available.  We will not be liable if the Service is unavailable to you, including due to:

(i) your or our operational or technological restrictions;

(ii) downtime attributable to malfunction, whether caused by your system, our system or that of a third party;

                  (iii) upgrades or preventative or remedial maintenance activities; or

(iv) events beyond our control;

(c)            give you notice as reasonably possible of the likely occurrence of any of the events in clause 4.4 (b) above. 

(d)            not be liable if the Service is unavailable to you, including due to: where we are aware of any of these events prior to them occurring; and

(e)            use all reasonable endeavours to ensure that the Service will enable you to achieve Certification, provided that you comply and correctly use the most up to date version of the Service.

4.5            All warranties, representations or conditions other than as specifically identified in this clause 4, whether implied by statute, law, trade, custom or otherwise which would otherwise apply to the Service are expressly excluded to the fullest extent permitted by law (including that the Service is error free or secure).

4.6            You represent and warrant that you are purchasing the Service solely for business purposes and acknowledge that consequently the Consumer Guarantees Act 1993 shall not apply.

5                  Security

5.1            We will issue you with Passwords to access the Service for the Business Location(s) specified on the Application Form or as notified by you.

5.2            You are responsible for any use of the Passwords, and you must not disclose any Password to an unauthorised person. 

5.3            Subject to access through the use of Passwords, we will also take every reasonable precaution to ensure that the confidentiality of Your Information is protected, except if it:

(a)            needs to be disclosed to a contractor or any other third party in order for us to provide you with the Service, and provided that we require them to observe the obligations of confidentiality in these Terms of Use;

(b)            becomes generally known by the public other than due to a breach of this clause; or

(c)             is legally required to be disclosed.

5.4            However, we cannot always be certain that the Service is error free.  Also, because the Service is internet based, certain risks exist that are outside our control (including the risk that unauthorised users may gain access to the Service and/or Your Information).  Consequently, despite the other provisions of these Terms of Use, we cannot and do not represent or warrant that the Service will always be accurate, reliable, adequate, complete, confidential and secure.

6                  Intellectual Property

6.1            We own all Intellectual Property rights in the Service.  You acknowledge that neither you nor anyone that you are responsible for has, or will acquire, any Intellectual Property rights in the Service and that these Terms of Use do not transfer any rights to you.

6.2            From time to time, Intellectual Property rights may arise, or be created, in the course of providing the Service.  We will be the only owner of these rights.  You agree to do anything we reasonably request to give effect to that ownership.

6.3            However, the foregoing does not affect Intellectual Property rights in Your Information.

7                  Limitation of Liability

7.1            If you have used the most up to date version of the Service for the Business Location(s) correctly and completely and because of any error or inaccuracy in the Service you are not capable of Certification as at the date that the Service is used, we will refund an amount equal to the Fees paid by you to us during the preceding 12 months.

7.2            You indemnify us against any and all loss, liability, damage and expense arising from any and all suits, claims, causes of action or proceedings brought against us by reason of, in connection with, or arising from any breach of these Terms of Use whether brought in tort, contract, equity or otherwise, or any wilful, unlawful or negligent act or omission.

7.3            Other than as set out in clause 7.1 above, you acknowledge that we are not responsible for any use by you of, or reliance on, the service which is otherwise provided on an “as is” and “where available” basis.  Clause 7.1 represents your sole remedy and our sole liability to you in relation to the service and we will not have any further liability or responsibility to you for any injury, loss (including, without limitation, loss of profits, data or business opportunity) or damage, whether direct, indirect or consequential, or whether arising in contract, tort, equity or otherwise arising between the parties.

7.4            Except as provided in clause 7.1, in no event shall our liability for any damages arising from or relating to these terms of use or the service exceed the greater of the fees incurred by you during the 3 months immediately preceding accrual of such cause of action or NZD $500.  This limitation of liability shall not apply to liability for death or personal injury or for any other cause of action to the extent applicable law prohibits such limitation.  Furthermore, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the limitations and exclusions in this clause 4 may not, but only to that extent, apply to you.

8                  Renewal

Unless terminated earlier at law or under the Terms of Use, or as agreed otherwise in writing between the parties, this agreement will be renewed for a further term as stipulated on the Application Form (Further Term) on the expiry of the Initial Term. We will continue to invoice you for the Fees as set out in the written notice unless notice of termination is given by you prior to the expiry of the Initial Term.

9                  Termination

9.1            Breach: Without limiting any other rights and remedies available to us, we may limit your access to the Service, issue a warning to you, suspend or termiate your Licence and access to the Service, or refuse to provide our Services to you if you breach these Terms of Use, in particular, your obligations under clause 3.1, or where we consider it appropriate.

9.2            Either party may terminate these Terms of Use immediately by notice in writing if the other party:

(a)            goes into voluntary liquidation (other than for the purposes of solvent amalgamation or restructuring) or is placed in liquidation by a court having jurisdiction; or

(b)            has a receiver appointed in respect of any of its undertakings; or

(c)             has a judgment made against any of its assets, which judgment remains unsatisfied for not less than 10 days.

9.3           If either party breaches any material provision of these Terms of Use the other party may give written notice to the defaulting party specifying the breach and requiring it to be remedied within 30 days of receipt of the said notice.  For the purposes of this clause the Payment Terms and clause 2 Fees and Payment are material provisions of these Terms of Use.

9.4            If the defaulting party fails to remedy a breach (capable of being remedied) within the time limit set out in the notice or if the breach is a material breach incapable of being remedied, then without further notice and without prejudice to any other rights or remedies available to the non-defaulting party at law, in equity, or on any other basis the non-defaulting party may terminate these Terms of Use.

9.5      Either party may terminate these Terms of Use immediately by giving 90 days notice in writing

10                  Consequences of Termination or Expiry

10.1            On termination of these Terms of Use for any reason:

(a)            you will promptly pay to us any outstanding amounts; and

(b)      you will promptly pay an amount equal to 50% of the Fees payable by you to us for the remaining period of the contract at the Fees current at the time of termination; and

(c) on payment of the fees outlined in 10.1(a) and 10.1(b) above you have the right to purchase a single-use licence for  export of your information, in the case of documentation, to a Word file, or in the case of data, to an Excel file.

(d)            all the provisions of these Terms of Use that are intended to continue after termination of these Terms of Use will continue in full force and effect.

11              Guarantee

11.1 In consideration of ebizdocz ® Limited agreeing to provide the Client with an account at the Guarantor’s request, the Guarantor guarantees payment in accordance with clause 2 herein. The Guarantor covenatns with ebizdocz ® Limited that:

(a) No release, delay or other indulgence given by ebizdocz ® Limited to the Client or to the Client’s successors or assigns or any other thing whereby the Guarantor would have been released had the Guarantor been merely a surety shall release prejudice or affect the liability of the Guarantor as a guarantor or as an indemnifier.

(b) As between the Guarantor and ebizdocz ® Limited, the Guarantor may for all purposes be treated as the Client and ebizdocz ® Limited shall be under no obligation to take proceedings against the Client before taking proceedings against the Guarantor

(c) The guarantee is for the benefit of and may be enforced by any person entitled for the time being to receive the payment.

(d) Should there be more than one Guarantor, their liability under this guarantee shall be joint and several

12              Privacy

You agree that we may collect personal information (as defined in the Privacy Act 2020) about you and any person using the Service. The information may be obtained from you and others, or generated from equipment used to provide our services when you and anyone else uses the Service. You may decide whether to provide any information we seek from you. However, if you do not provide it, we may not be able to provide the Service for you. You may ask to see personal information we hold about you, so long as we can readily retrieve it, and ask for any details that are wrong to be corrected. We may hold the personal information and share it with our related companies, with our officers, employees, contractors, agents and customers, with collection agencies and with credit reference agencies, so as to provide services or information to you and others, send you bills, recover money you owe and keep you informed of services available to you.

13              Communications

We and our related companies may communicate with you, and you consent to use, provide, receive and accept information (including notices and all other communications between us and you), in electronic form for all purposes in connection with this agreement (unless specifically agreed otherwise).

14              Transferring rights and responsibilities

You may transfer all (but not part of) your rights and responsibilities under these Terms of Use to someone else so long as we have received the transferee’s written agreement to be bound by the terms and conditions of these Terms of Use and given you our written consent.  We may have any of our related companies (as defined under the Companies Act 1993) perform our obligations and/or enforce our rights under these Terms of Use.  You agree that we may, at any time on notice and without the need for further consent from you, assign, novate or transfer this agreement to a related company or to any third party in the event of the proposed sale (including by way of assets or shares), merger, amalgamation or other re-organisation of all or part of our business.

15              Publicity

15.1         We may:

(a)             advise our clients and potential clients that you use the Service; and

(b)             refer to your use of the Service in our advertising and marketing materials.

16              Dispute Resolution

The parties will use all reasonable endeavours to resolve any dispute between them.  If the parties cannot agree the dispute will be determined in accordance with the Arbitration Act 1996 (excluding clauses 4 and 5 of the Second Schedule to that Act).

17              Entire Agreement

These Terms of Use constitute the entire agreement between the parties relating to the supply of the Service and replace all earlier negotiations, representations, warranties, understandings and agreements between the parties (whether oral or written) relating to the Service.

18              Waiver

No exercise or failure to exercise or delay in exercising any right or remedy (including those under these Terms of Use) by a party will constitute a waiver by that party of that or any other right or remedy available to it.

19              Notices

Any notice required or permitted under the terms of these Terms of Use or required by statute, law or regulation will (unless otherwise provided) be in writing and delivered by hand, by prepaid mail or by facsimile to the addresses set out on the front page of these Terms of Use and will be deemed to have been received at the time when actually delivered if delivered by hand, or upon confirmation of successful transmission if sent by facsimile, or 3 days after posting if sent by mail.

20              Applicable Law

These Terms of Use will be construed in accordance with the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.

21              Amendments to Agreement

We reserve the right to modify these Terms of Use at any time by general notice on a page of the ebizdocz ® site located at https://ebizdocz.com and any use of the Service after publication of this notice will constitute acceptance of these revised terms.

Last updated March 2019