Terms and conditions | Hamilton City Council

1. Introduction

1.1 You must accept this Agreement before accessing and using the Service.

1.2 By accessing the Service, you agree to be bound by these terms and conditions, and deemed to be a party to this, Agreement. If you do not agree with all of the terms and conditions of this Agreement, you may not be able to access the Services offered by the Platform.

1.3 This Agreement is entered into by you as a user of the Service. You confirm that you have the authority to act on behalf of any entity for whom you are using the Services.

1.4 From time to time we may need to make changes to this Agreement. We will notify you of any changes to this Agreement by posting them on the Website and you agree to be bound by the updated terms and conditions by continuing to access or by using the Service.

2. Definitions

2.1 In this Agreement, unless the context otherwise requires:

Agreement means these terms and conditions of use and our Privacy Policy (as amended by us from time to time).

Authorised User means any of the personnel, contractors, agents or representatives of the Subscriber that the Subscriber has authorised to access and use the Service on its behalf.

Confidential information means all written and oral information provided by either party to the other that is not public knowledge. It is acknowledged and agreed that all information regarding the Services and the Software is Confidential Information of HCC.

Effective Date has the meaning given to it in clause 3.1.

Platform means [ ] a software as a service product configured and hosted by us for you pursuant to this Agreement, and which you (and your Authorised Users) are able to access via our Website.

Privacy Policy means our privacy policy in place from time to time and contained on our Website.

Subscriber Data means any and all data (including any text or images and personal information) relating to you, your Authorised Users that is entered into the Website or the Service directly by you or any Authorised User or indirectly as a result of the application of any rules contained in the Software.

Service means the Platform made available via the Website (including, as applicable, configuration services, and access to and use of the Platform and Support Services. References to the Service in this Agreement shall be deemed to include a reference to Platform.

Software means the Platform software (and any related software) that is owned (or licensed) by us and made available to you through the Service.

Subscriber means the person(s) who registers to access and use the Service, and includes the entity for whom that person enters into this Agreement on behalf of.

Support Services means the standard access and support services provided by (or on behalf of) us in connection with the Services.

User Documentation means any printed or electronic documents supplied (or made available on the Website) by us relating to the Service and the Software, as updated by us from time to time.

We, us, our or HCC means Hamilton City Council.

Website means [ ] or such other site as notified by us from time to time.

you means either the Subscriber and as the context permits, includes the Authorised Users, and your has a corresponding meaning.

3. Term

3.1 This Agreement shall be in effect from the first time you access the Platform (Effective Date), and shall remain in effect until terminated in accordance with this Agreement.

4. Services

4.1 Subject to compliance by you with this Agreement:

(a) we grant to you and you accept from us, a non-exclusive, non-transferable and non-assignable right for you to access and use the Service during the Term solely for your internal business purposes; and

(b) you hereby subscribe for the Service.

4.2 We will provide the Support Services free of charge. However, if you wish to request additional support from us at any time, we may agree to provide such additional services, you agree to pay us the cost of providing such services (on a time and materials basis, as notified by us).

4.3 You warrant that all information supplied by you to us via the Platform for the purposes of registration and accessing and using the Service is true, correct and up to date.

4.4 Terminal equipment, communications links and systems compatibility (and all costs associated with such items) are your sole responsibility. We accept no responsibility for any unavailability of, or defects in, the Platform or the Service to the extent such unavailability or defects arise out of or in connection with terminal equipment, communications links or systems compatibility.

5. Authorised Users

5.1 You are responsible for keeping all access information, including email addresses and log-on credentials, secret and secure. Without limiting the foregoing, you agree:

(a) not to disclose and to ensure that Authorised Users do not disclose their user name or log-on credentials to any other person;

(b) to ensure that none of your Authorised Users (or any other person under your control) attempts to gain unauthorised access to the Service, including but without limitation, through hacking or password mining;

(d) you have sole responsibility for setting the administration privileges of each Authorised User and for monitoring whether those privileges are being adhered to.

5.2 You must notify each Authorised User of the terms of this Agreement and ensure that each of them strictly comply with these terms. You shall be responsible (and liable) for any failure of any Authorised User to comply with the terms of this Agreement (as if it were a breach by you of this Agreement).

6. Restrictions on use

6.1 In respect of your access to and use of the Service you will comply with, all User Documentation, applicable laws, rules and regulations, together with all instructions, guidelines, procedures and policies notified by HCC from time to time.

6.2 We may at our discretion use technology (including digital rights management protocols) or other means to protect the Service or to prevent you from breaching this Agreement.

7. Ownership and Intellectual Property Rights

7.1 Title and associated intellectual property rights in the Subscriber Data remain your (or, as applicable, the relevant Authorised User’s or third party’s) property.

7.2 You acknowledge:

(a) the Service, Platform, Website and Software are protected by copyright and other interests and are proprietary and confidential to us (or our third party licensors and/or suppliers); and

(b) all rights, title and interest in and to the Service, Platform, Website and Software, including associated intellectual property rights, are and will remain vested in us or our third party licensors or suppliers (as applicable).

8. Subscriber Data

8.1 You acknowledge that we are not responsible for, and have no liability in respect of, the Subscriber Data, loss or corruption of the Subscriber Data, or how you or any of your Authorised Users use the Subscriber Data or the Service. You are solely responsible for the Subscriber Data and we reserve the right to remove from our servers any content that may expose us to potential liability.

9. Third party websites and material

9.1 The Platform and the Service may contain links to other websites or resources over which we do not have control (External Websites). Such links do not constitute an endorsement by for us for those External Websites. You acknowledge that the Platform is providing these links to you as a convenience, and you further agree that we are not responsible for the content of any External Websites. Your (and your Authorised Users’) use of the External Websites is entirely at your own risk and is subject to the terms and conditions of use and privacy policies located on the External Websites.

10. Specific Service Terms and Conditions

10.1 You acknowledge that online transactions made available or offered by HCC through the Platform from time to time are subject to the specific additional terms and conditions between you and HCC (“Additional Terms”). You agree to comply with any the Additional Terms. Access and use of the Platform shall be deemed to constitute acceptance of the Additional terms and conditions applicable to the Services.

10.2 You acknowledge that any claim for refunds from HCC to you are subject to the Additional Terms and in no circumstances will any third party be liable to you for any refunds.

11. Termination and suspension

11.1 Unless terminated under this clause, this Agreement and your right to access and use the Services:

(a) starts on the Effective Date; and

(b) continues until you cease to use the Service or we give notice that this Agreement and your access to and use of the Service will terminate on the expiry of that notice.

11.2 We may immediately by notice in writing to you, terminate this Agreement (or, in our discretion, suspend the provision of the Service) where:

(a) you fail to comply with any material term of this Agreement;

(b) you (or any of your Authorised Users or personnel) breach, or attempt to breach, any of our security protocols or systems on the Website, or access (or attempt to access) an account that does not belong to you;

(d) we consider it necessary or desirable to do so to protect our interests or reputation or the interests of the Service or any other person.

11.3 We may also suspend access to the Website and the Service at any time:

(a) for such time as is necessary to carry out maintenance determined by HCC to be necessary or desirable;

(b) to reduce or prevent interference with the Website or the Service;

11.4 Upon termination of this Agreement (for any reason):

(a) you must immediately cease (and ensure all Authorised Users’ cease) to access the Service;

(b) all of your Subscriber Data, other than Anonymous Data or Aggregate Data, shall be deleted from the Website;

(c) any termination will be without prejudice to any prior breaches by you (or any of your Authorised Users) of this Agreement; and

(d) any provision of this Agreement intended to survive termination shall survive.

12. Updates and new versions

12.1 We may provide updates to or new versions of the Software or Service (or any parts of them) and reserve the right to take down applicable servers hosting the Website and the Software to undertake such updates or install such new versions. You agree to comply with our instructions in relation to any update, new version or maintenance and we will not be held liable for any upgrade, update, maintenance or new version of the Software or Service (or any part of them).

13. Warranties

13.1 We will use our commercially reasonable efforts to ensure that the Service is accessible by you and your Authorised Users in accordance with this Agreement.

13.2 HCC does not represent that the Service or any Platform is error-free or will satisfy your requirements. Nor does HCC provide any warranties in respect of the accuracy, completeness, timeliness or supply of information via the Website. The obligation of HCC in clause 13.1 is in lieu of all other warranties in respect of the Website, the Service or the Platform. To the maximum extent permitted under applicable law, all other warranties, condition and representations, whether express, implied or verbal, statutory or otherwise, and whether arising under this Agreement or otherwise, are excluded (including, without limitation, the implied warranties of merchantability, non-infringement and fitness for a particular purpose).

13.3 We use commercially available anti-virus software in the provision of the Service, but we cannot guarantee that the Website or the Service will be free from viruses, trojan horses, worms, time bombs, or similar harmful programming routines.

13.4 You agree the Service is acquired for the purposes of a business, and as such, the guarantees provided under the New Zealand Consumer Guarantees Act 1993 do not apply.

14. Liability and indemnity

14.1 To the extent we do become liable to you in connection with this Agreement, then all claims by you against us whether in contract, equity, tort (including negligence), breach of statutory duty or otherwise) or any other theory of liability are limited to $NZD100.

14.2 Under no circumstances will we or our third party licensors, suppliers or resellers (or any of their directors, officers or employees) be liable, whether in contract, equity, tort (including negligence, breach of statutory duty or otherwise) or any other theory of liability for any direct or indirect: loss of profits, loss of revenue, liabilities or claims relating to your reliance on the output of the Platform; loss of data (including any Subscription Data), breach of security or privacy, loss of anticipating savings; or for any indirect, special or consequential loss whatsoever.

14.3 You acknowledge and agree that we are simply facilitating your ability to assess your business needs more efficiently, and that we shall have no liability to you or any Authorised User in connection with any action (or inaction, as the case may be) taken by an Authorised User as a result of its interaction with the Platform.

14.4 You will indemnify and hold us, our third party licensors, suppliers (and their directors, officers and employees), harmless from all claims, liabilities, damages, losses (including legal fees) and expenses, due to or arising out of your (or any of your customers’, personnel or Authorised Users’) use of the Services, and/or any breach of any term of this Agreement by you or any of your Authorised Users.

15. Assignment

15.1 You will not license, assign, resell, share, pledge, rent or transfer any of your rights under this Agreement or any part of them without our prior written consent (which may be withheld in our absolute discretion). Any change of control in your corporate entity will be deemed an assignment.

15.2 We may assign this Agreement at any time by notice in writing to you.

16. Privacy

16.1 We collect and process your personal information and personal information of your Authorised Users when you (or your Authorised Users, as applicable) access or use the Website and/or the Service. In order to provide you with the Service (and improve on it), we may also collect certain information about the performance of the Website and the Service and your (and your Authorised Users’) use of the Website and/or the Service.

16.2 Our access to and use of all such personal information is governed by our Privacy Policy However, you acknowledge that information transmitted over the internet is inherently insecure.

16.3 By agreeing to this Agreement, you also agree to the way we handle your (and your Authorised Users’) personal information under our Privacy Policy. You can access our Privacy Policy on the Website at Privacy Policy | Hamilton City Council. Our privacy policy forms part of this Agreement.

16.4 You must comply with all privacy laws (including the NZ Privacy Act 2020) in connection with your collection and use of any personal information of any person. You will not (and will ensure your Authorised Users do not) use the Services: (i) to collect personal information about third parties, including without limitation, e-mail addresses; or (ii) in a way that violates (or may be considered inconsistent with) the privacy, rights or civil liberties of any person (including in a way that prevents the exercise of them).

17. Confidentiality

17.1 Unless otherwise consented in writing by one party to the other, each party will maintain the confidentiality of all Confidential Information of the other obtained pursuant to this Agreement. The provisions of clause 17.1 do not apply to any information which:

(a) is public knowledge other than breach of this clause 17;

(b) is received from a third party who is in lawful receipt of the information and is able to disclose it to the recipient without restriction;

(d) is necessary for us to disclose in order to provide the Service.

18. Force majeure

18.1 We will not be liable for any delay or failure to fulfil our obligations under this Agreement arising directly or indirectly from any circumstance beyond our reasonable control (including, without limitation, acts of God, flood, earthquake, storm, fire, epidemic, pandemic, war, embargoes, riot or civil disturbance).

19. Disputes

19.1 Where a dispute relating to this Agreement or the Service (Dispute) arises, you (or your representative) will negotiate in good faith with us in an attempt to resolve the Dispute amicably.

19.2 Where the Dispute cannot be resolved by way of good faith negotiations within 14 days (or such longer period agreed by you and us) of negotiations commencing, either party can elect to immediate steps to seek urgent injunctive relief before an appropriate court.

20. General

20.1 Any problems that occur whilst accessing the Website or the Service (or any other correspondence with us) should be notified in writing to finace@h3group.co.nz at your earliest convenience.

20.2 Any notices to be provided by us to you pursuant to this Agreement shall be made by either posting such notice on the Website or emailing you at the email address you supplied to us for the purposes of opening your account on the Website.

20.3 This Agreement and the provision of the Service provided hereunder will be governed by New Zealand law and you agree to submit to the exclusive jurisdiction of the New Zealand courts in respect of any disputes or claims arising out of or in connection with the Service. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

20.4 Nothing express or implied in this Agreement shall be construed as constituting either party as the partner, agent, employee, office or representative of, or as a joint venture with, the other party, and neither party will make any contrary representation to any other person.

20.5 If any of provision of this Agreement is determined to be illegal, invalid or otherwise unenforceable, then to the extent, it shall be severed and deleted from these terms and the remaining terms shall survive and continue to be binding and enforceable.

20.6 No delay, neglect, or forbearance on the part of either party in enforcing against the other party any term or condition of the Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under the Agreement.

20.7 This Agreement constitutes the entire agreement between the parties with respect to the use of the Services and supersedes all prior or contemporaneous understandings regarding such subject matter.

20.8 Any provision that by its nature should survive the termination of this Agreement (or is necessary for the interpretation or enforcement of this Agreement) shall survive any termination.