Terms of service

Bluelab Terms of Use — Website, Software, Products and Services

1. General

1.1

Thank you for visiting our Website. This Website is owned and operated by Bluelab Corporation Limited (“Bluelab”). By accessing and/or using this Website, Bluelab Software, Products and/or Services, you agree to these Terms of Use, which includes our Privacy Statement (“Terms”). Where your access and use of our Website is on behalf of another person (e.g. a company), you confirm that you are authorised to, and agree to, these Terms on that person’s behalf.

2. Changes

2.1

We may change these Terms from time to time by notifying you of the change by email or by posting a notice on this Website. Unless stated otherwise, any change takes effect from the date set out in the notice, or if no date, the date of the posting on the Website. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use our Website, Bluelab Software, Products and/or Services from the date on which the Terms are changed, you agree to be bound by the changed Terms.

2.2

These Terms were last updated in November 2021.

3. Definitions & Interpretation

In these Terms:

App includes mobile applications, website applications and other application software.

Apple means Apple Inc. and its subsidiaries.

Bluelab Software means any software owned and/or licensed by us that is used to provide, or otherwise used in conjunction with, our Products or Services.

Confidential Information means any information that is not public knowledge and that is obtained from a party in the course of, or in connection with, the provision and use of our Products and Services. Our Confidential Information includes any Intellectual Property Rights in works owned by us, including the Bluelab Software. Your Confidential Information includes the Data.

Data means data, content, and information (including Personal Information) that you provide to us.

Fees means the applicable fees (if any) for the Products and Services set out on our pricing page on the Website, as may be updated from time to time.

Force Majeure means any event or circumstance:

1. that is beyond the reasonable control of a party; and
2. that results in or causes the failure of that party to perform or observe any of its obligations under these Terms,

including, but not limited to:

1. strike, lock-out or other industrial disturbance, act of a public enemy, declared or undeclared war, threat of war, terrorist act, blockade, revolution, riot, insurrection, epidemics, pandemics or disease, civil commotion, civil disturbances, public demonstration, sabotage, act of vandalism, acts of animals, lightning, fire, storm, flood, washout, drought, accidental collisions, landslides, earthquake, accumulation of snow or ice, explosion; and
2. governmental restraint or direction or other governmental intervention or request, act of parliament, other legislation or bylaw,

provided that lack of funds will not be interpreted as a cause beyond the reasonable control of that party.

Google means Google Inc.

Intellectual Property Rights means all present and future intellectual, proprietary and industrial rights and interests, (including rights protectable in statute, at common law or in equity), and the goodwill in the same, in or in relation to, and industrial property rights conferred by law or contract, in:

1. copyright works, patents, designs, circuit layouts, layout-designs, know how, inventions, prototypes, discoveries, improvements, manufacturing technologies, techniques and processes, testing methods, algorithms, specifications, code, software, formulations, methods and materials, processes, technical information, trade secrets, confidential information, geographical indications, product names, trade marks, service marks, trade names, brand names, and designations, symbols, logos, domain names, social media accounts, pages, handles and platforms, URLs, websites, business models, plans and strategies, and other results of intellectual effort in the scientific, technological, bio-technological, industrial and commercial fields, and any other property of a similar kind whether registered, unregistered or capable of registration and all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world;
2. any application or rights to apply for registration or protection of any of those rights; and
3. all renewals and extensions of these rights.

Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, potentially harmful, or unlawful in any way.

Personal Information means information about or relating to an identifiable individual.

Personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.

Privacy Statement means Bluelab’s Privacy Policy available at https://bluelab.com/new_zealand/privacy-policy/.

Products means the products made available by Bluelab, including those described on the Website, any App and any Bluelab Software we may make available to enable a User to access and use our Products and/or Services.

Sales Tax means goods and services tax, value-added tax, sales tax or equivalent tax payable under any applicable law.

Services means the services made available by Bluelab, having the core functionality described on the Website, as the Website is updated from time to time.

Start Date means the date that you first agree to the Terms under clause 1.1.

Underlying Systems means the Bluelab Software and the IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.

User means a user of our Products or Services.

We, us or our means Bluelab Corporation Limited, New Zealand company number 2352700 or its designated subsidiary or affiliate.

Website means any of the internet sites at www.bluelab.com, www.getbluelab.com, or such other site notified to you by us.

Year means a 12-month period starting on the Start Date or the anniversary of that date.

you or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.

A reference to:

1. party includes that party’s permitted assigns.
2. person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
3. a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
4. including and similar words do not imply any limit.

Words used in the singular include the plural and vice versa.

4. Access and use of the Website

4.1

You agree to access and use the Website and any Products and Services in accordance with the Terms and all applicable laws.

4.2

We grant you the right to access and use the Products and Services via the Website. This right is non-exclusive, non-transferable, and subject to these Terms (which may be amended from time to time), and all other terms and conditions are expressly excluded unless otherwise agreed in writing.

5. Links

5.1

The Website may contain links to other websites. Bluelab is not in any way responsible for the contents of any linked sites or liable for any direct or indirect damage, costs, injury or losses of any kind arising in any way from use of such material.

6. Provision of the Services

6.1

We will provide the Products and Services:

1. in accordance with these Terms and New Zealand law;
2. exercising reasonable care, skill and diligence; and
3. using suitably skilled and experienced Personnel.

6.2

Subject to clauses 6.5 and 6.6, we will use reasonable efforts to ensure the Services are available on a 24/7 basis. However, it is possible that on occasion the Services may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We will use reasonable efforts to publish on the Website and/or notify you by email advance details of any scheduled unavailability.

6.3

Through the use of web services and APIs, the Products and Services may enable you to access and use third party software and services, as part of, or to enable or improve your access and use of, the Products and Services. You must use those web services, APIs, and the applicable software and services:

1. only on systems owned or controlled by you;
2. solely for the purpose of enabling or improving your access and use of the Products and Services; and
3. (to avoid doubt) in accordance with clauses 7.1 and 7.2 of these Terms.

6.4

Where any web services, APIs, software or services provided under clause 6.3 are subject to third party terms:

1. you acknowledge that those third party terms form an agreement directly between you and that third party; and
2. you and your personnel must comply with those third party terms

6.5

We do not make any warranty or representation on the availability or operability of any third party web services, APIs, software or services provided under clause 6.3, or any other third party service feature with which the Products or Services interoperate.

6.6

Without limiting clause 6.5, if a third party provider of an item (including any web service, API, software or service provided under clause 6.3) ceases to provide that item or ceases to make that item available on reasonable terms, we may cease to make available that item as part of the Products and Services. To avoid doubt, if we exercise our right to cease the availability of a third party item, you are not entitled to any refund, discount or other compensation.

6.7

You acknowledge and agree that the Products may automatically upload and/or download data (including Data) and Product updates as background processes without User intervention (and whether or not you are logged into your account).

7. Your Obligations

7.1

You and your personnel must:

1. use the Products and Services in accordance with these Terms solely for:

1. your own internal business purposes; and
2. lawful purposes including complying with any applicable anti-spam laws;

1. not (otherwise than as permitted by law or with Bluelab's consent), resell, resupply or make available the Products or Services to any third party, or otherwise commercially exploit the Products or Services;
2. not transfer, assign, or otherwise deal with or grant a security interest in the Products or Services, or your rights under these Terms;
3. not copy, modify or adapt, any part of the Products or Services, except:

1. as expressly provided for in these Terms; or
2. in the case of the Bluelab Software, to the extent necessary to access and use them in the ordinary course of operation for their intended purposes;

1.  not decompile, reverse-engineer, or otherwise attempt to derive the source code of any Bluelab Software except to the extent expressly permitted by any law or treaty in force that cannot be excluded, restricted or modified by these Terms;
2. not combine, merge or incorporate the whole or any part of the Products or Services in any other services, program, software and/or system, without our prior written consent, except to the extent necessary to access and use them in the ordinary course of operation for their intended purposes; and
3. if given any unique user ID, passwords or software access keys, keep those details secure and:

1. (not permit any other person to use them, including not disclosing or providing them to any other person; and
2. immediately notify us on becoming aware of any disclosure or unauthorised use of those details.

7.2

When accessing and using the Products and Services, you and your personnel must:

1. not impersonate another person or misrepresent authorisation to act on behalf of others or us;
2. correctly identify the sender of all electronic transmissions;
3. not attempt to undermine their security or integrity or the security or integrity of any Underlying Systems;
4. not use or misuse them in any way which may impair the functionality of the Underlying Systems or impair the ability of any other User to use the Services;
5. not impose an unreasonable or disproportionately large load on the Services or any Underlying Systems;
6. not attempt to view, access or copy any material or data other than that which you are authorised to access; and
7. neither use them in a manner, nor transmit, input or store any Data, that infringes any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.

7.3

You may authorise any member of your personnel to be a User. You must procure each such User’s compliance with clauses 6.3, 7.1 and 7.2 and any other reasonable condition notified by us to you.

7.4 

A breach of any of these Terms by your personnel (including, to avoid doubt, a User referred to under clause 7.3) or any person using any unique user ID, passwords or software access keys allocated to you or your personnel is deemed to be a breach of these Terms by you.

7.5

You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Products and Services, including to use, store and input Data into, and process and distribute Data through, the Products and Services.

8. Apps

8.1

If you or your personnel install, access or use:

1. an iOS App (i.e., an App for use with iPhones, iPads and other Apple devices) made available via the Apple App Store:

1. the licence for the App is concluded between us and the App user only, and not with Apple;
2. the App is licensed to the App user on the terms set out in Apple’s standard licensed application end user licence agreement (available at http://www.apple.com/legal/internet-services/itunes/us/terms.html); and
3. despite anything else in these Terms, the App user’s licence to use the App is limited as set out in the usage rules in Apple’s App Store Terms of Service (available at http://www.apple.com/legal/internet-services/itunes/us/terms.html); and

1. an App for Android devices made available via Google Play, the use of the App is additionally subject to the Google Play Terms of Service (available at https://www.google.com/mobile/android/market-tos.html).

8.2

Where clause 8.1 applies:

1. You acknowledge and agree that Bluelab, not Apple or Google, is solely responsible for the App and the content of the App, and for addressing any claims by the App user or any third party relating to the App or the App user’s possession and/or use of the App, including, but not limited to:

1. product liability claims;
2. any claim that the App fails to conform to any applicable legal or regulatory requirement;
3. claims arising under consumer protection or similar legislation; and
4. investigation, defence, settlement and discharge of any third party claim that the App or the App user’s possession and use of the App infringes that third party’s Intellectual Property Rights.

1. Questions, complaints or claims with respect to the App should be directed to: Bluelab Corporation Limited, Whiore Avenue, Tauriko Business Estate, Tauranga, 3110, New Zealand, +64 7 578 0849, support@bluelab.com.

9. Bluelab’s Rights

9.1

Under the Terms, we may:

1. edit or remove any content, features or functionality of the Website; and/or
2. monitor your use of the Website;

9.2

If you breach the Terms, we may:

1. suspend or terminate your use of the Website, Products and Services; and/or
2. take legal action against you

9.3

Our provision of the Products, Services and your access to the Website to you is non-exclusive. Nothing in these Terms prevents us from providing any of the Products and Services to any other person.

9.4

We may terminate your access to the Website or our Products or Services at any time without notice. Clauses 16, 17 and 18 will survive such termination.

10. Fees

10.1

You must pay us the applicable Fees for the Products and Services.

10.2

If applicable, we will provide you with valid Sales Tax invoices prior to the due date for payment and, where any Fees are payable on a subscription basis, in accordance with the applicable subscription plan set out on our pricing page available on the Website.

10.3

The Fees exclude Sales Tax, which you must pay on any taxable supplies.

10.4

You must pay the Fees:

1. in accordance with the payment terms set out on our pricing page available on the Website; and
2. electronically in cleared funds without any set-off or deduction.

10.5

If Fees are payable, we may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or, if our primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.

10.6

We may impose Fees or increase the Fees by giving at least 30 days’ notice. If you do not wish to pay the new or increased Fees, you may terminate these Terms and your right to access and use the applicable Products and Services on notice, provided the notice is received by us before the effective date of the new Fee or Fee increase. If you do not terminate these Terms and your right to access and use the applicable Products and Services in accordance with this clause, you are deemed to have accepted the new or increased Fees.

11. Support Services

11.1

Subject to you maintaining a proper operating environment for the use of the Products in accordance with any guidance that we provide, we will provide you with the support services described in this clause for the duration of your right to access and use the Products and Services.

11.2

Where you consider on reasonable grounds that the Products or Services are not performing materially in accordance with these Terms or any documentation made available by us (including on the Website), we will:

1. provide telephone, web and email support in the form of consultation, assistance and advice; and
2. use reasonable efforts to assist in the resolution of the issue (taking into account the nature and severity of the issue).

11.3

Our provision of support under this clause is conditional on you:

1. contacting us during business hours, being:

1. for our Los Angeles, US office, 7.00am to 5.30pm Pacific Standard Time or Pacific Daylight Time (as applicable), excluding public holidays in California, US;
2. for our New Zealand office, 8.30am to 5.00pm New Zealand Standard Time, excluding public holidays in Auckland, New Zealand; and

1. contacting us via one of the following methods:

1. by phone: for our Los Angeles, US office: 1-855-525-8352; and for our New Zealand office +64 7 578 0849
2. by email: support@bluelab.com;
3. using the web-based chat forum on the Website; and
4. using the web contact form at https://www.bluelab.com/contact-us

11.4

We are not obliged to provide any support services to the extent that any issue with the Products or Services arises from or in connection with:

1. modification or alteration of the Products or Services by any person other than us; or
2. a breach of these Terms by you, including using the Products or Services in a manner or for a purpose not reasonably contemplated by these Terms.

12. Copyright

12.1

The contents of the Website are the copyright of Bluelab. You are not permitted to:

1. distribute, modify, display, publish, licence, create adaptations or derivative works from, offer for sale, use or copy any part of the Website for any commercial purpose without the written consent of Bluelab. You may download to your hard drive, or print, extracts from the Website for your own personal or internal business use only;
2. circumvent, remove, alter, disable, deactivate or otherwise interfere with any security-related features of the Website;
3. use any automated tools or mechanisms including any robot, spider or scraper to access the Website or insert any code or manipulate the Website;
4. reverse engineer, disassemble or decompile Bluelab Software or Blue Software processes in relation to the Website;
5. use the Website content for any commercial purpose (except as expressly permitted under the Terms), or for any public display (commercial or non-commercial) unlss;
6. remove any copyright or other proprietary notices on the Website; and
7. install any viruses, worms, malware or other harmful or destructive software or thing that may impair the functionality of the Website or the ability of others to access and use the Website, Products or Services.

13. Intellectual Property

13.1

All Products and Services, the Website, and all Underlying Systems is and remains the property of us (and our licensors). You must not dispute that ownership.

13.2

Title to, and all intellectual property rights in, the Data (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with the Terms.

13.3

To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property Rights used by us in the provision of the Products and Services.

13.4

If you provide us with ideas, comments or suggestions relating to the Products or Services (together feedback):

1. all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
2. we may use or disclose the feedback for any purpose.

13.5

Any link from the Products or Services to a third party website or feed does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.

14. Confidentiality

14.1

Each party must, unless it has the prior written consent of the other party:

1. keep confidential at all times the Confidential Information of the other party;
2. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
3. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential

14.2

The obligation of confidentiality in clause 14.1(a) does not apply to any disclosure or use of Confidential Information:

1. for the purpose of performing a party’s obligations, or exercising a party’s rights, under the Terms;
2. required by law (including under the rules of any stock exchange);
3. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
4. which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
5. by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 14.

15. Data and Privacy

15.1

We collect, use, share and store Personal Information in accordance with our Privacy Statement, the New Zealand Privacy Act 2020 (if you are in New Zealand), the European Union’s General Data Protection Regulation (GDPR) (if you are in a Member State of the European Union), and the California Consumer Privacy Act (CCPA) (if you are a California resident).

15.2

You acknowledge and agree that:

1. we may require access to the Data to exercise our rights and perform our obligations under these Terms;
2. we may authorise a member or members of our Personnel to access the Data for the purpose set out in clause 15.2(a), provided the confidentiality obligations in clause 14 are complied with; and
3. you must arrange and maintain all consents and approvals that are necessary for us to access and use the Data as described in clause 15.2.

15.3

You acknowledge and agree that to the extent the Data contains Personal Information, you consent to the collection, use, disclosure, storage and processing of your Personal Information in accordance with the Terms.

15.4

If you are providing us with Personal Information about another person, then you must obtain all consents and approvals necessary at law from the relevant individual to enable us to collect, use, disclose, hold and process that information in accordance with these Term.

15.5

We will take standard industry measures to back up all Data stored, and you agree to keep a separate back-up copy of all Data that you transmit, store using, or input into, the Products, Services or the Website.

15.6

With respect to Personal Information, we have put in place suitable physical, electronic and managerial procedures to safeguard and secure the Personal Information that we collect. We will also take reasonable steps to ensure that our third parties whom we disclose your Personal Information to also take reasonable steps to protect your Personal Information in accordance with our Privacy Statement and the applicable privacy laws.

15.7

You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.

16. Disclaimer

16.1

Subject to clause 17, to the maximum extent permitted by law, we expressly disclaim and exclude all representations, warranties, conditions and guarantees, including (without limitation) in respect of quality, merchantability, fitness for purpose, condition, description, manufacture, design or performance whether express, implied by common law, law merchant, trade usage, custom, statute or otherwise in relation to your use of the Website, Products or Services, except as otherwise set out in these Terms.

16.2

You acknowledge and agree that:

1. your use of the Website is at your sole risk;
2. the Website is provided “as is”;
3. the Website may not be secure, timely, uninterrupted, error-free or otherwise reliable;
4. we may cease to make available some of the Website content, Products and Services from time to time;
5. the transmission of information via the internet is not secure and we cannot guarantee the security of your data in transmission to or from our Website; and
6. We are not liable to you or anyone else if interference with or damage to your computer systems occurs in connection with the use of the Website or a linked website. You must take your own precautions to ensure that whatever you select for your use from the Website is free of viruses or anything else (such as worms or trojan horses) that may interfere with or damage the operations of your computer systems.

17. Warranties and Representations

17.1

Each party warrants that it has full power and authority to enter into, and perform its obligations, under these Terms.

17.2

To the maximum extent permitted by law:

1. our warranties are limited to those set out in these Terms and our Bluelab warranty (available at https://bluelab.com/product-warranty). All other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded; and
2. we make no representation concerning the quality of the Products or Services and do not promise that the Products or Services will:

1. meet your requirements or be suitable for a particular purpose, including that the use of the Products or Services will fulfil or meet any statutory role or responsibility you may have; or
2. be secure, free of viruses or other harmful code, uninterrupted or error free.

17.3

Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:

1. supplying the relevant Product or Service again; and/or
2. paying the costs of having the relevant Product or Service supplied again.

18. Liability

18.1

In the event Bluelab is held liable under or in connection with these Terms or relating to the Products and Services, whether in contract, tort (including negligence), breach of statutory duty, warranty or otherwise, its liability (including under any indemnity) will not, in any Year, exceed an amount equal to the Fees paid by you relating to the Products and Services in the previous Year (which in the first Year is deemed to be the total Fees paid by you from the Start Date to the date of the first event giving rise to liability) or where no Fees had been paid for the applicable Products and Services, the amount of NZD500.

18.2

Neither party is liable to the other under or in connection with the Terms or the Products or Services for any:

1. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
2. consequential, indirect, incidental or special damage or loss of any kind.

18.3

Clauses 18.1 and 18.2 do not apply to limit our liability under or in connection with these Terms for:

1. personal injury or death;
2. fraud or wilful misconduct; or
3. any liability that cannot legally be excluded or limited as set out in these Terms

18.4

Clause 18.2 does not apply to limit your liability:

1. to pay the Fees;
2. under the indemnity in clause 15.7;
3. for those matters stated in clause 18.3(a) to 18.3(c);
4. for breach of clause 7; or
5. for infringement of our Intellectual Property Rights.

18.5

Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.

18.6

Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Products or Services.

19. Term, Termination and Suspension

19.1

Unless terminated under this clause 19, these Terms and your right to access and use the applicable Products and Services:

1. starts on the Start Date; and
2. continues until you cease to use the Products and Services or we give notice that these Terms and your access to and use of the Products and Services will terminate on the expiry of that notice.

19.2

Subject to clause 10.6, if the subscription option you have selected includes a minimum initial term, the earliest date for termination under clause 19.1 will be the expiry of that initial term.

19.3

You may terminate these Terms and your right to access and use the Products and Services in accordance with clause 10.6.

19.4

Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.

19.5

On termination of these Terms, you must pay all Fees for the provision of the Products and Services prior to that termination.

19.6

No compensation is payable by us to you as a result of termination of the Terms and your access and use of the Products and Services for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.

19.7

Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of these Terms but subject to clause 19.8, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.

19.8

At any time prior to one month after the date of termination, you may request:

1. a copy of any Data stored using the Services, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we will provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any particular software; and/or
2. deletion of the Data stored using the Services, in which case we must use reasonable efforts to promptly delete that Data.

To avoid doubt, we are not required to comply with clause 19.8(a) to the extent that you have previously requested deletion of the Data.

19.9

Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Products and Services and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have:

1. undermined, or attempted to undermine, the security or integrity of the Products or Services or any Underlying Systems;
2. used, or attempted to use, the Products or Services:

1. for improper purposes; or
2. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Products or Services;

1. transmitted, inputted or stored any Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
2. otherwise materially breached these Terms

20. General

20.1

Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.

20.2

No person other than you and us has any right to a benefit under, or to enforce, these Terms.

20.3

For us to waive a right under these Terms, that waiver must be in writing and signed by us.

20.4

We are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.

20.5

If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications.

20.6

These Terms, and any dispute relating to these Terms or the Products or Services, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the courts of New Zealand in relation to any dispute connected with these Terms or the Products or Services.

20.7

Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 15.6, 13, 14, 18, 19.4 to 19.8 and 20.6, continue in force.

20.8

If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.

20.9

Subject to clauses 2.1 and 10.6, any variation to these Terms must be in writing and signed by both parties.

20.10

These Terms set out everything agreed by the parties relating to the Products and Services, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Products or Services that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date.

20.11

You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.