Last updated: Jan 21, 2022
Zeablue Software Limited (“Zeablue”) provides a subscription-based, software-as-a-service inventory management offering that enables the Customer to integrate with feeds from other software systems.
1. INTERPRETATION1.1 Definitions: In these Terms and Conditions, the following terms have the stated meaning: “Additional Services” means any further services developed, derived from and/or provided as variations or amendments to the Services in accordance with clause 3.4. “Confidential Information” means the terms of these Terms and Conditions and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, these Terms and Conditions. Zeablue’s Confidential Information includes but is not limited to Intellectual Property owned by Zeablue (or its licensors), including the Zeablue software. “Customer”, “you” and “your” means the customer for the Services, and/or you, being the person accessing the Website; “Customer Data” means all data, content, and information owned, held, used or created by or on behalf of a Customer that is stored using, or inputted into, the Zeablue system under the terms of these Terms and Conditions; “Fees” means the fees payable to Zeablue for providing the Service. “Force Majeure” means an event that is beyond the reasonable control of a party but excluding: an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or a lack of funds for any reason. “Intellectual Property Rights” means copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. “Intellectual Property” has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property. “Objectionable” means being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way. “Permitted Users” means those personnel of the Customer who are authorised to access and use the Service on the Customer’s behalf in accordance with clause 4.3. “Personal Information” means, in relation to Customers, information about an identifiable individual (as defined in the Privacy Act 2020). “Start Date” means the date of the Customer’s acceptance of these Terms and Conditions. “Service” means the subscription-based, software-as-a-service inventory management offering provided to you by Zeablue under these Terms and Conditions and having the core functionality described in more detail on the Website, as the Website is updated from time to time, and shall include any Additional Services in accordance with clause 3.4. “Underlying Systems” means the software, IT solutions, systems and networks (including software and hardware) developed and owned by Zeablue and that it uses to provide the Service, and including any third party solutions, systems and networks. “Website” means the internet site at www.zeablue.com, or such other site notified to the Customer by Zeablue from time to time. “Quarter” means a 3 month period starting on the Start Date or the anniversary of that date. “Zeablue” means Zeablue Software Limited (8179204), a duly incorporated company in terms of the Companies Act 1993 (New Zealand). 1.2 Interpretation: In these Terms and Conditions: (a) clause and other headings are for ease of reference only and do not affect the interpretation of these Terms and Conditions; (b) words in the singular include the plural and vice versa; (c) a reference to: (i) a party to these Terms and Conditions includes that party’s permitted assigns; (ii) personnel includes officers, employees, contractors and agents, but a reference to the Customer’s personnel does not include Zeablue; (iii) a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity; (iv) including and similar words do not imply any limit; and (v) 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; (d) no term of these Terms and Conditions is to be read against a party because the term was first proposed or drafted by that party; and
2. ACCEPTANCE OF TERMS AND CONDITIONS2.1 By accessing and/or using the Website, and/or using the Services: (a) you agree to be bound by these Terms and Conditions; and (b) where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms and Conditions on that person’s behalf and that, by agreeing to them on that person’s behalf, that person is bound by them. 2.2 If you do not agree to these Terms and Conditions, you are not authorised to access and use the Website and/or the Services, and you must immediately stop doing so.
3. SERVICES3.1 General: Zeablue must use reasonable efforts to provide the Service: (a) in accordance with these Terms and Conditions and New Zealand law; (b) exercising reasonable care, skill and diligence; and (c) using suitably skilled, experienced and qualified personnel. 3.2 Non-exclusive: Zeablue’s provision of the Service to you is non-exclusive. Nothing in these Terms and Conditions prevents Zeablue from providing the Service to any other person. 3.3 Availability: (a) Subject to clause 3.3(b), Zeablue will use reasonable efforts to ensure the Service is available on a 24/7 basis. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. Zeablue will use reasonable efforts to publish on the Website and/or notify you by email advance details of any unavailability. (b) Through the use of web services and APIs, the Service interoperates with a range of third party service features. Zeablue does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, Zeablue may cease to make available that feature to the Customer. To avoid doubt, if Zeablue exercises its right to cease the availability of a third party feature, the Customer is not entitled to any refund, discount or other compensation. 3.4 Additional Services: (a) Zeablue may, from time to time, make available Additional Services to supplement the Service. (b) At the request of the Customer and subject to the Customer paying the applicable Fees, Zeablue may agree to develop and provide Additional Services to the Customer on the terms of these Terms and Conditions.
5. DATA5.1 Zeablue access to Customer Data: (a) The Customer acknowledges that: (i) Zeablue may require access to the Customer Data to exercise its rights and perform its obligations under these Terms and Conditions; and (ii) to the extent that this is necessary but subject to clause 8, Zeablue may authorise a member or members of its personnel to access the Customer Data for this purpose. (b) The Customer must arrange all consents and approvals that are necessary for Zeablue to access the Customer Data as described in clause 5.1(a). 5.2 Analytical Data: The Customer acknowledges and agrees that: (a) Zeablue may: (i) use Customer Data and information about the Customer’s and the Customer’s End Customers’ use of the Service to generate anonymised and aggregated statistical and analytical data (“Analytical Data”); and (ii) use Analytical Data for Zeablue’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and (iii) supply Analytical Data to third parties; (b) Zeablue’s rights under clause 5.1(a) above will survive termination of expiry of these Terms and Conditions; and (c) title to, and all Intellectual Property Rights in, Analytical Data is and remains Zeablue’s property. 5.3 Agent: (a) The Customer acknowledges and agrees that to the extent Customer Data contains Personal Information, in collecting, holding and processing that information through the Service, Zeablue is acting as an agent of the Customer for the purposes of the Privacy Act 2020 and any other applicable privacy law. (b) The Customer must obtain all necessary consents from the relevant individual to enable Zeablue to collect, use, hold and process that information in accordance with these Terms and Conditions. 5.4 Backups of Data: While Zeablue will take standard industry measures to back up all Customer Data stored using the Service, the Customer agrees to keep a separate back-up copy of all Customer Data uploaded by it onto the Service. 5.5 International storage of Data: The Customer agrees that Zeablue may store Customer Data (including any Personal Information) in secure servers in overseas territories and may access that Customer Data (including any Personal Information) in overseas territories and New Zealand from time to time. 5.6 Indemnity: The Customer indemnifies Zeablue against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by Zeablue’s solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Customer Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Customer Data is Objectionable, incorrect or misleading.
6. FEES6.1 Fees: The Customer shall pay the Fees payable for the Services which shall be price(s) displayed on our Website, or as quoted to you in writing, and as altered by us at our sole discretion from time to time.
7. INTELLECTUAL PROPERTY7.1 Ownership: (a) Subject to clause 7.1(b), title to, and all Intellectual Property Rights in, the Service, the Website, and all Underlying Systems are and remain the property of Zeablue (and its licensors). The Customer must not contest or dispute that ownership, or the validity of those Intellectual Property Rights. Zeablue grants the Customer a worldwide, non-exclusive, non-transferable, revocable licence to use the Service, the Website, and all Underlying Systems for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with these Terms and Conditions. (b) Title to, and all Intellectual Property Rights in, the Customer Data (as between the parties) remains the property of the Customer. The Customer grants Zeablue a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Customer Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with these Terms and Conditions. 7.2 Know-how: To the extent not owned by Zeablue, the Customer grants Zeablue a royalty-free, transferable, irrevocable and perpetual licence to use for Zeablue’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by Zeablue in the provision of the Service. 7.3 Feedback: If the Customer provides Zeablue with ideas, comments or suggestions relating to the Service or Underlying Systems (together “Feedback”): (a) 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 Zeablue; and (b) Zeablue may use or disclose the Feedback for any purpose. 7.4 Third party sites and material: The Customer acknowledges that the Service may link to third party websites or feeds that are connected or relevant to the Service. Any link from the Service does not imply any Zeablue endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, Zeablue excludes all responsibility or liability for those websites or feeds. 7.5 Third party Intellectual Property Rights indemnity: (a) Zeablue indemnifies the Customer against any claim or proceeding brought against the Customer to the extent that claim or proceeding alleges that the Customer’s use of the Service in accordance with these Terms and Conditions constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to the Customer: (i) promptly notifying Zeablue in writing of the IP Claim; (ii) making no admission of liability and not otherwise prejudicing or settling the IP Claim, without Zeablue’s prior written consent; and (iii) giving Zeablue complete authority and information required for Zeablue to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for Zeablue’s account. (b) The indemnity in clause 7.5(a) does not apply to the extent that an IP Claim arises from or in connection with: (i) the Customer’s breach of these Terms and Conditions; (ii) use of the Service in a manner or for a purpose not reasonably contemplated by these Terms and Conditions or otherwise not authorised in writing by Zeablue; or (iii) any third party data or any Customer Data. (c) If at any time an IP Claim is made, or in Zeablue’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, Zeablue may (at Zeablue’s option): (i) obtain for the Customer the right to continue using the items which are the subject of the IP Claim; or (ii) modify, re-perform or replace the items which are the subject of the IP Claim so they become non-infringing. (d) To the extent permitted by law, any Customer or Permitted User who duplicates electronically or in printed form, re-transmits, redistributes or otherwise uses material or content from the Services and/or the Website shall be solely responsible for any violation of the intellectual property rights of a third party caused or contributed to by that duplication, re-transmission, redistribution or use, and hereby agrees to indemnify and hold Zeablue harmless from any loss or damage, including legal fees, arising out of any claim or proceeding instituted on the grounds that any of the foregoing rights have been violated.
8. CONFIDENTIALITY8.1 Security: Each party must, unless it has the prior written consent of the other party: (a) keep confidential at all times the Confidential Information of the other party; (b) effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and (c) 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 Information is aware of, and complies with, the provisions of clauses 8.1(a) and 8.1(b). 8.2 Permitted disclosure: The obligation of confidentiality in clause 8.1 does not apply to any disclosure or use of Confidential Information: (a) for the purpose of performing these Terms and Conditions or exercising a party’s rights under these Terms and Conditions; (b) required by law (including under the rules of any stock exchange); (c) which is publicly available through no fault of the recipient of the Confidential Information or its personnel; (d) which was rightfully received by a party to these Terms and Conditions from a third party without restriction and without breach of any obligation of confidentiality; or (e) by Zeablue if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that Zeablue enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 8.
9. WARRANTIES9.1 Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under these Terms and Conditions which, when signed, will constitute binding obligations on the warranting party. 9.2 No implied warranties: To the maximum extent permitted by law: (a) Zeablue’s warranties are limited to those set out in these Terms and Conditions, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to NZD 100.00; and (b) Zeablue makes no representation concerning the quality of the Service and does not promise that the Service will: (i) meet the Customer’s requirements or be suitable for a particular purpose, including that the use of the Service will fulfil or meet any statutory role or responsibility of the Customer; or (ii) be secure, free of viruses or other harmful code, uninterrupted or error free. 9.3 Consumer Guarantees Act: The Customer agrees and represents that it is acquiring the Service, and accepting the provisions of these Terms and Conditions, for the purposes of trade. The parties agree that: (a) to the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Service or these Terms and Conditions; and (b) it is fair and reasonable that the parties are bound by this clause 9.3. 9.4 Limitation of remedies: Where legislation or rule of law implies into these Terms and Conditions a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms and Conditions. However, the liability of Zeablue for any breach of that condition or warranty is limited, at Zeablue’s option, to: (a) supplying the Service again; and/or (b) paying the costs of having the Service supplied again.
10. LIABILITY10.1 Exclusion of liability: The Website and the Service are provided on an "as is" and "as available" basis. You agree that, to the maximum extent permitted by law: (a) any and all of our liability and responsibility to you or any other person is excluded, regardless of whether such liability arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise: (i) under or in connection with these Terms and Conditions; or (ii) in connection with the Website and/or the Service (including any errors in or omissions from the Website and/or the Service), any other Permitted User's acts or omissions (including any comments or content posted), or your use of or inability to use, the Website and/or the Service (including any loss or corruption of data), (b) Zeablue disclaims and excludes all implied conditions or warranties, including, but not limited to, any warranties of accuracy, merchantability, fitness for a particular purpose, and non-infringement. 10.2 Unrecoverable loss: Neither party is liable to the other under or in connection with these Terms and Conditions or the Service for any: (a) loss of profit, revenue, savings, business, use, data (including Customer Data), and/or goodwill; or (b) consequential, indirect, incidental or special damage or loss of any kind. 10.3 Unlimited liability: (a) Clauses 10.1 and 10.2 do not apply to limit Zeablue’s liability: (i) under the indemnity in clause 7.5(a); or (ii) under or in connection with these Terms and Conditions for: A personal injury or death; B fraud or wilful misconduct; or C a breach of clause 8. (b) Clause 10.2 does not apply to limit the Customer’s liability: (i) under the indemnity in clause 5.6; or (ii) for those matters stated in clause 10.3(a)(ii). 10.4 No liability for other’s failure: Neither party will be responsible, liable, or held to be in breach of these Terms and Conditions for any failure to perform its obligations under these Terms and Conditions or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms and Conditions, or by the negligence or misconduct of the other party or its personnel. 10.5 Mitigation: 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 and Conditions.
11. TERM, TERMINATION AND SUSPENSION11.1 Duration: Unless terminated under this clause 11, these Terms and Conditions: (a) start on the Start Date and continue for successive terms of 3 months from the Start Date unless a party gives at least 1 months’ notice that this Agreement will terminate on the expiry of the then-current term. (b) For the purposes of clause 11.1(a) cancellation of the Customer’s monthly subscription payment shall be sufficient notice of termination. 11.2 No fault termination: Either party may terminate this Agreement by giving at least 1 months’ prior notice. 11.3 Other termination rights: (a) Either party may, by notice to the other party, immediately terminate this Agreement if the other party: (i) breaches any material provision of this Agreement and the breach is not: A remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or B capable of being remedied; (ii) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or (iii) is unable to perform a material obligation under this Agreement for 90 days or more due to Force Majeure. (b) If the remedies in clause 7.5(c) are exhausted without remedying or settling the IP Claim, Zeablue may, by notice to the Customer, immediately terminate this Agreement. 11.4 Consequences of termination or expiry: (a) Termination or expiry of this Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry. (b) Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of this Agreement and subject to clause 11.4(c), 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. (c) At any time prior to one month after the date of termination or expiry, the Customer may request: (i) a copy of any Customer Data stored using the Service, provided that the Customer pays Zeablue’s reasonable costs of providing that copy. On receipt of that request, Zeablue must provide a copy of the Customer Data in a common electronic form. Zeablue does not warrant that the format of the Customer Data will be compatible with any software; and/or (ii) deletion of the Customer Data stored using the Service, in which case Zeablue must use reasonable efforts to promptly delete that Customer Data. To avoid doubt, Zeablue is not required to comply with clause 11.4(c)(i) to the extent that the Customer previously requested deletion of the Data. 11.5 Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of this Agreement, including but not limited to clauses 5.6, 7, 8, 10, 11.4, 11.5 and 12, continue in force. 11.6 Rights to restrict: Without limiting any other right or remedy available to Zeablue, Zeablue may restrict or suspend the Customer’s access to the Service and/or delete, edit or remove the relevant Customer Data if Zeablue considers that the Customer (including any of its personnel) has: (a) undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems; (b) used, or attempted to use, the Service: (i) for improper purposes; or (ii) in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service; (c) transmitted, inputted or stored any Customer Data that breaches or may breach this Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or (d) otherwise materially breached this Agreement including for non-payment of Fees in accordance with clause 6. 11.7 Process: (a) Zeablue must notify the Customer where it restricts or suspends the Customer’s access, or deletes, edits or removes Customer Data, under clause 11.6. (b) Clause 11.4(c)(i) will not apply to the extent that it relates to Customer Data deleted or removed under clause 11.6.
12. DISPUTES12.1 Good faith negotiations: Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, this Agreement through good faith negotiations. 12.2 Mediation: If any dispute cannot be resolved by negotiation between the parties within ten (10) days or such further period as the parties agree is appropriate, then the matter shall be referred for mediation. 12.3 The mediation procedure is as follows:- (a) any party may start mediation by serving a mediation notice on the other party; (b) the mediation notice must state that a dispute has arisen and identify the substance of the dispute; (c) the parties must jointly request appointment of a mediator. If the parties fail to agree on the appointment within seven (7) days of service of the mediation notice, any of the parties may apply to the executive director for the time being of the Resolution Institute or the nominee of the executive director to appoint a mediator; (d) once the mediator has accepted the appointment the parties must comply with the mediator’s instructions including but not limited to each parties’ contribution to the mediator’s costs; and (e) the parties agree that it will be a term of the engagement of the mediator that they release the mediator from any court proceedings relating to this Agreement or the mediation. 12.4 Obligations continue: Each party must, to the extent possible, continue to perform its obligations under this Agreement even if there is a dispute. 12.5 Right to seek relief: This clause 12 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
13. GENERAL13.1 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under this Agreement to the extent caused by Force Majeure, provided that the affected party: (a) immediately notifies the other party and provides full information about the Force Majeure; (b) uses best efforts to overcome the Force Majeure; and (c) continues to perform its obligations to the extent practicable. 13.2 Rights of third parties: No person other than Zeablue and the Customer has any right to a benefit under, or to enforce, this Agreement. 13.3 Waiver: To waive a right under this Agreement, that waiver must be in writing and signed by the waiving party. 13.4 Independent contractor: Subject to clause 5.3, Zeablue is an independent contractor of the Customer, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under this Agreement. 13.5 Notices: A notice given by a party under this Agreement must be delivered to the other party via email using the email address set out in Schedule 1 or otherwise notified by the other party for this purpose. If the notice is a notice of termination, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address. 13.6 Severability: (a) If any provision of this Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. (b) If modification under clause 13.6(a) is not possible, the provision must be treated for all purposes as severed from this Agreement without affecting the legality, enforceability or validity of the remaining provisions of this Agreement. 13.7 Variation: Any variation to this Agreement must be in writing and signed by both parties. 13.8 Entire agreement: This Agreement sets out everything agreed by the parties relating to the Service, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of this Agreement that is not expressly set out in this Agreement, and no such representation, warranty or agreement has any effect from the Start Date. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 13.8. 13.9 Subcontracting and assignment: (a) The Customer may not assign, novate, subcontract or transfer any right or obligation under these Terms and Conditions without the prior written consent of Zeablue, that consent not to be unreasonably withheld. The Customer remains liable for its obligations under these Terms and Conditions despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing. (b) Any change of control of the Customer is deemed to be an assignment for which Zeablue’s prior written consent is required under clause 13.9(a). In this clause change of control means any transfer of shares or other arrangement affecting the Customer or any member of its group which results in a change in the effective control of the Customer. 13.10 Law: These Terms and Conditions 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 and Conditions.
Zeablue reserve the right, at sole discretion of Zeablue, to modify or replace these Terms at any time. What constitutes a material change will be determined at sole discretion by Zeablue.
By continuing to access or use the Service after those revisions become effective, You agree to be bound by the revised terms. If You do not agree to the new terms, in whole or in part, please stop using the website and the Service.
If you have any questions about these Terms and Conditions, You can contact us:
By email: email@example.com
By visiting this page on our website: https://www.zeablue.com/contactus