Terms of Use
Terms Of Use
By registering to use FlexiTime whether as a Trial User or a Subscriber you agree to be bound by the terms set out below. If you do not agree to these terms do not register to use FlexiTime.
Licence Terms and Conditions
1. INTERPRETATION
In these Terms
“Administrator” means the person that has access to and use of the Profile created at registration of the Licensee which Profile will be linked to that Licensee and able to authorise access by Operators and set limits on the rights of Operators (to the extent this is permitted in the Software);
“Commencement Date” means the date on which the Licensee agrees to these terms;
“Data” means any data entered by the Licensee into the Software;
“Documentation” means all instruction manuals, user guides and other information relating to the Software made available with the Software or through the Website;
“End User” means an Operator or an Administrator;
“Fees” means the amounts payable by the Licensee for the right to use the Software, as published from time to time by FlexiTime Ltd. in the Fee Schedule;
“Fees Schedule” means the schedule set out at http://www.flexitime.co.nz/dnn/Pricing.aspx as this may be updated from time to time;
“Intellectual Property Rights” means all patents, licences, trade marks, service marks, trade names, inventions, trade secrets, copyright, moral rights, design rights, know-how, confidential information and any other intellectual property rights whether registered or unregistered and the right to register the same;
“Licence” means the licence granted under clause 3.1;
“Licensee” means either a Subscriber or a Trial User;
“Operator” means any person who has access to and use of a Profile that is linked to the Licensee and that is added by the Administrator;
“Password” means a unique password which if the Licensee is a Trial User is provided by FlexiTime or is selected by Licensee’s Administrator and / or Operator and used to access the Software;
“Profile” means the identity given to a user of the Software which identity is linked to a Licensee and also linked to the rights that identity has in relation to use of the Software and access to the relevant Licensee’s Data;
“Register” shall mean register as a Trial User or a Subscriber, registering and registration shall have equivalent meanings;
“Software” means the Flexitime Software, which is an Employee Time Management System;
“Subscriber” means an individual company or partnership who has completed FlexiTime’s registration process and is using or intends to use the Software in its day to day business;
“Trial User” means an individual Company or partnership who has applied to FlexiTime Ltd. to assess the Software and has been given access on a trial basis using a name and password provided by FlexiTime Ltd.; and
“Website” means www.flexitime.co.nz;
2. REGISTRATION AND PASSWORD
2.1. The Software will be hosted on FlexiTime Ltd. servers and will be accessible through the Website by registering to become a Licensee
2.2. Notwithstanding any other clause in this Agreement where the Licensee is a Trial User they acknowledge that:
a) Their access to the Software is intended to be to assess whether the Software is able to meet their requirements;
b) They will not be able to use and will not try to use the Software to process live data or information of their business;
c) Where advised by FlexiTime Ltd. their access to the Software may be for a limited time only;
d) If they wish to use the Software in their day to day business they will need to cease being a Trial User and register to become a Subscriber.
2.3. Notwithstanding any other clause in this Agreement where the Licensee is a Subscriber they acknowledge that:
a) By registering, the Licensee agrees to provide FlexiTime Ltd. with current, complete and accurate information as prompted by the registration form and Licensee agrees to maintain and update this registration data as required to keep it current, complete and accurate.
b) to keep the Passwords secure and confidential and not reveal it to any persons not authorised by it;
c) it is entirely responsible for any and all activities that occur under or through the use of their Passwords; and
d) to notify FlexiTime Ltd. immediately if it believes the Password is no longer secret so that FlexiTime Ltd. can cease relying on their Password.
2.4. The Licensee will not:
a) use the Software for any purpose that is unlawful;
b) where they are a Subscriber use the Software for any purpose other than the Licensee’s own internal business purposes;
c) do any act or thing that will or is reasonably likely to interfere with the Software or any other users use of the Software;
d) do any act or thing that will or is reasonably likely to result in the transmission or upload of harmful or deleterious software (including, without limitation, viruses, trojan horses, worms or time bombs);
e) attempt to gain unauthorised access to the Software, other users information or computer systems or networks connected to the Software or;
f) transmit or upload any materials that are in breach of any intellectual property laws, rights of privacy or any other third party rights.
2.5. FlexiTime Ltd. may amend these Terms from time to time. FlexiTime Ltd. will set out the date that the terms were last updated next to the hyper link to the terms on the login page. By continuing to login and use the Software the Licensee will be deemed to have agreed to the new terms.
3. LICENCE
3.1. With effect from the Commencement Date until such time as these Terms are terminated in accordance with their terms FlexiTime Ltd. grants:
a) to the Trial User a non-exclusive, non-transferable Licence to use the Software to assess whether it will meet the Trial User’s requirements; and
b) to a the Subscriber a non-exclusive, non-transferable Licence to access and use the Software for the Subscriber’s own internal business purposes.
3.2. FlexiTime Ltd. will provide access to Documentation that is intended to assist the Licensee in using the Software.
3.3. Upon registering to be a Licensee the Licensee will be able to appoint one person to be an Administrator. The Administrator will be an End User who is given rights by the Software to create access for Operators. All Operators given access to by an Administrator will be able to use the Software and input, access and export relevant Licensee’s Data in the manner prescribed by the Administrator.
3.4. FlexiTime Ltd. may deem any act carried out or omission permitted by the Administrator or any Operator or any instruction given by the Administrator as being carried out, permitted or given by the Licensee.
4. PAYMENT
4.1. The Fees payable for access and use of the Software are set out in the Fees Schedule.
4.2. The Fees Schedule may set out various levels of usage and link these to differing fees that are to be paid.
4.3. The Fee payable will be calculated based on usage level selected by the Licensee when subscribing to FlexiTime.
4.4. At the beginning of a month FlexiTime Ltd. will issue the Licensee an invoice in advance for the Fees payable in the following invoice period.
4.5. Invoice periods are for one month or one year as selected by the Licensee. The date range of the invoice period is determined by the subscription date of the Licensee.
4.6. Each invoice will be payable on the 20th day of the month following the date of Invoice.
4.7. If the Licensee defaults in payment of any Fees, FlexiTime Ltd. may, without prejudice to any of its other rights or remedies and without liability to Licensee:
a) suspend the Licensee’s (including all its End User’s) access to the Software; and
b) charge interest on any unpaid amount from the due date until the date of the actual payment at 2% per annum over the base overdraft facility charged by FlexiTime Ltd’s bankers from time to time.
4.8. Licensee acknowledges that where FlexiTime Ltd. suspends Licensee’s access to the Software, FlexiTime Ltd. is not liable for any loss cost damages or expenses suffered by the Licensee or any other party as a result of that loss of access.
5. HARDWARE AND SERVICE REQUIREMENTS AND PERFORMANCE
5.1. The Licensee acknowledges that:
a) the Licensee is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software and communication services that allow a user to access and use the Software;
b) the operation and availability of the software and systems used for accessing the Software, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Software; and
c) FlexiTime Ltd. is not in any way responsible for any interference with or prevention of the Licensee’s access and/or use of the Software.
6. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
6.1. The Licensee acknowledges that the Intellectual Property Rights in the Software, the Website and any documentation relating to the Software remain the property of FlexiTime Ltd. (or its licensors).
6.2. FlexiTime Ltd. acknowledges that the Intellectual Property Rights in the Data remain the property of the Licensee. Licensee agrees to maintain copies of all Data entered into the Software and FlexiTime Ltd. will not be liable for any loss cost or expense suffered by the Licensee or any other party as a result of the Data being lost.
6.3. All information relating to the Software and the Documentation will be treated by the Licensee as confidential unless it is in the public domain otherwise than by a breach of these Terms.
6.4. All information relating to the Licensee that could reasonably be considered by its nature to be confidential will be treated by FlexiTime Ltd. as confidential unless the Licensee gives permission for FlexiTime Ltd. to use the information or the information is in the public domain otherwise than by a breach of these Terms.
6.5. Nothing in clauses 6.3 or 6.4 shall prevent either party from disclosing confidential information to the extent that it is required to by law. Where either party is required by law to disclose any confidential information it will first advise the other party of this obligation, will allow the other party reasonable time to avoid the disclosure having to be made and will give the other party such assistance (at the other party’s cost) as the other party reasonably requests in doing this.
6.6. The Licensee undertakes:
a) not to copy any Documentation except to the extent that copying is necessary for the Licensee’s own back-up purposes;
b) not to transfer or otherwise deal in the Documentation or the Licensee’s rights under the Licence;
c) to maintain all copyright notices on the Documentation;
d) to notify FlexiTime Ltd. immediately it becomes aware that any person may have unauthorised knowledge, access to or use of the Software or the Documentation.
6.7. The Licensee’s obligations under this clause will survive termination of the Licence.
6.8. FlexiTime Ltd. may use and treat any personal information it receives from the Licensee in accordance with the Privacy Terms.
6.9 Portions of this software are based in part on the work of Adobe Systems Incorporated. Because FlexiTime Ltd. has included the Adobe Systems Incorporated software in this product, FlexiTime Ltd. is required to include the following text that accompanied such software:
Copyright (c) 2006 Adobe Systems Incorporated.
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
7. WARRANTIES
7.1. FlexiTime Ltd. warrants that it has full power and authority to grant access to the Software and the Documentation to the Licensee .
7.2. FlexiTime Ltd. warrants that to the best of its knowledge and belief the Software and the Documentation do not infringe any patent, copyright, trade secret or other intellectual property right of any third party.
7.3. FlexiTime Ltd. warrants that the Software will function substantially in accordance with the Documentation but the Licensee acknowledges that the Software is of a complicated and technical nature and may have inherent defects. FlexiTime Ltd. will provide reasonable programming and remedial services to correct documented code errors caused by a defect in the Software. The Licensee acknowledges that FlexiTime Ltd. accepts no liability, and is not in any way responsible for, any interferences in the Licensee’s access to the Software caused by these defects.
8. LIMITATION OF LIABILITY
8.1. Licensee acknowledges that it is acquiring access to the Software for the purposes of a business. Except as expressly provided in these Terms or to the extent that they may not be lawfully excluded, all representations or warranties (statutory, express or implied – including any liability for late payment or errors in the input of information into the Software, the guarantees under the Consumer Guarantees Act 1993 and all implied warranties of merchantability and fitness for a particular purpose) are expressly excluded.
8.2. Notwithstanding anything in these Terms to the contrary, FlexiTime Ltd. will not be liable under the law of tort, contract or otherwise for any loss of profits or any indirect or consequential loss or damage, however caused, arising out of the use of the Software.
8.3. FlexiTime Ltd’s aggregate liability to the Licensee arising out of all claims for damages under these Terms will not exceed twice the average Fees actually paid by the Licensee in the six months prior to the date on which the claim arose.
8.4. No action arising out of these Terms may be brought more than six months after the party bringing the action became aware, or reasonably ought to have been aware, of the circumstances giving rise to the action.
8.5. Licensee acknowledges that FlexiTime Ltd. is not its accountant and use of the Software does not substitute for professional accounting advice.
9. DEFAULT AND TERMINATION
9.1. Either party may terminate these Terms by giving one month’s prior written notice to the other party.
9.2. Without prejudice to FlexiTime Ltd’s rights under clause 4 FlexiTime Ltd. may terminate the Licence and remove the Licensee’s right to access and use the Software immediately by notice in writing to the Licensee if the Licensee :
a) breaches any of its obligations under clause 6;
b) breaches any other provision of these Terms and fails to remedy the breach within 14 days after receiving notice from FlexiTime Ltd. requiring it to be remedied;
c) assigns its rights or obligations under these Terms otherwise than in accordance with clause 10.3; or
d) becomes insolvent, goes into liquidation, has a receiver appointed over any of its assets, ceases to carry on its business or makes any composition or arrangement with its creditors.
9.3. Following termination of the Licence the Licensee will have no further right to access or use the Software and must return to FlexiTime Ltd. all copies of the Documentation in whatever form possessed by the Licensee.
9.4. Where Licensee has prepaid any Fees that part of the Fees prepaid which relate to complete months that have not passed at the date of Termination will be refunded to the Licensee.
9.5. Termination of this Agreement will terminate the right for all End Users linked to a Licensee to access and use the Software.
10. GENERAL
10.1. Any notice to be given under these Terms must be made in writing, email or by facsimile transmission sent to the registered office or principal place of business of the other party or to such other address as may be notified by either party to the other from time to time. Any communication by email or facsimile transmission will be deemed to be received when transmitted to the correct email or facsimile transmission address of the recipient. Any email will be deemed transmitted if no delivery error is received by the sender. Any facsimile will be deemed transmitted if a transmission confirmation for the full facsimile is generated by the sender’s facsimile machine. Any other communication in writing will be deemed to be received when left at the specified address of the recipient or on the fifth day following the date of posting.
10.2. No waiver of any breach of these Terms will be deemed to be a waiver of any other or any subsequent breach. The failure of FlexiTime Ltd. to enforce any provision of these Terms will not be interpreted as a waiver of the provision.
10.3. The Licensee may not assign or transfer the Licence or any of its rights or obligations under these Terms without the prior written consent of FlexiTime Ltd. A change in the ownership of the Licensee is deemed to be a transfer of these Terms.
10.4. If any provision of these Terms is invalid or unenforceable, the remaining provisions will not be affected and will continue in full force.
10.5. These Terms are subject to the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts.