Terms and Conditions

Version 1.0 – Last Update 16/06/2020

Thanks for using our products and services. By using our Services, you agree to these terms and conditions. Please read these terms and conditions carefully. In these terms and conditions each reference to “Infocare” or “us” is a reference to Infocare Systems Limited (NZBN: 9429035619284). Any reference to “you” or the “customer” means you, our customer and, where applicable, includes all of such persons employees, contractors and agents who access and use the Services. Any reference to “parties” is a reference to both you and us.

Definitions and Interpretation

Unless the context otherwise requires:
“Add-on Services” means the GoDigital services (if any) as specified in the Sign Up Form or otherwise requested by you.
“Agreement” means this Agreement, which is comprised of:

      1. The Sign Up Form; 
      2. The Terms and Conditions; 
      3. The Data Retention Terms and Conditions; and
      4. The Direct Debit Terms.

“Commencement Date” means:

      1. In relation to New Customers, the date specified as such in the Sign Up Form; 
      2. In relation to Existing Customers who agree to a Fixed Term Contract, the date on which you notify Infocare that you wish to sign up for that Fixed Term Contract; or
      3. In relation to all other Existing Customers, the date upon which you confirm you acceptance of this Agreement. 

“Customisation” has the meaning given to that term in clause 4.1.

“Customisation IP” means all Intellectual Property developed or generated by Infocare in connection with the creation of any Customisations.

“Data” means all data, content, and information owned, held, used or created by you or on your behalf that is stored using, or inputted into, or using, the Services or Systems.

“Data Retention Services” has the meaning given to that term in clause 2 of the Data Retention Terms and Conditions.

“Data Retention Term” has the meaning given to that term in clause 1.2 of the Data Retention Terms and Conditions.

“Data Retention Terms and Conditions” means the data retention terms and conditions attached to this Agreement.

“Development Fees” has the meaning given to that term in clause 4.1.

“Developed IP” means all Intellectual Property developed or generated by Infocare in connection with the performance of the Services, and includes (for the avoidance of any doubt) the Customisation IP.

“Direct Debit Terms” means the EzyPay direct debit terms located at https://www.ezypay.com/hubfs/document/NZ_Customer_Terms_&_Conditions.pdf.

“Existing Customer” means a customer who engaged Infocare to provide Services prior to 16 June 2020.

“Fees” means the fees set out in the Pricing Schedule to these terms, or as otherwise agreed in writing between you and us from time to time, in each case as the same may be amended by us from time to time in accordance with clause 13.2.

“Fixed Term Contract” has the meaning given to that term in the Sign Up Form.

“Fixed Term Customer” means a customer who has subscribed for Services for a fixed term of 12 months (wither by way of agreeing to a Fixed Term Contract, or through notice in writing to Infocare).

“Force Majeure Event” has the meaning given to that term in clause 18.1.

“Intellectual Property” means all rights and interests (including common law rights and interests) in and to trade marks, inventions, patents, designs, copyrights, moral rights, plant variety rights, database rights, know-how, data and confidential information, business names, trade names, service marks, trade dress and livery, domain names, layout designs, copyright in software (including, without limitation, in source and object code form) and any similar rights in any part of the world (including any registration of such rights and applications for such registrations), and “Intellectual Property Rights” has the same meaning.

“Monthly Contract” has the meaning given to that term in the Sign Up Form.

“Monthly Customer” means any customer who has agreed to a Monthly Contract  or who otherwise is not a Fixed Term Customer.

“New Customers” means a customer who engages Infocare to provide Services on or after 16 June 2020.

“Privacy Policy” means Infocare’s privacy policy, as available on the Website, as the same may be updated by Infocare from time to time.

“Services” means: 

      1. Infocare’s online core childcare management system for the enrolment of children, administration of child records including billing, provision of data as required by the Ministry of Education Early Learning Information System and the processing of funding claims to the Ministry of Education;
      2. any applicable Add-on Services; and
      3. any other services agreed between you and Infocare from time to time.

“Sign Up Form” means, where you are a New Customers, the form to be signed by you, setting out the Services you will receive from Infocare.

“Software” means the software made available to you by Infocare as a part of, and in order to allow you to receive, the Services.

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

“Term” means the term of this Agreement, being the Initial Term and any Renewal Term (in each case as defined in clause 13.1.

“Terms and Conditions” means these terms and conditions, which apply to the provision of all Services provided by Infocare.

“Third Party Solutions” means third party products and services offered through the website and/or the System or those third party products and services to which we allow the System to link or provide an interface.

“Website” means Infocare’s website, www.infocaresolutions.co.nz.

 

2. Agreement

      1. You can accept this Agreement by clicking “accept” or “agree to the terms,” where Infocare in the user interface makes this option available to you for any Service. In this case, you understand and agree that Infocare will treat your use of the Services as acceptance of this Agreement from that point onwards. 
      2. If you are an Existing Customer and do not agree to the terms set out herein, you must immediately cease to use the Services and notify Infocare of that fact.
      3. This Agreement shall be effective as of the Commencement Date (or any earlier date on which you commence using or accessing the Services), and supersedes any and all prior agreement(s) between Infocare and you relating to the Services.

 

3. Services

      1. Infocare will use reasonable efforts to provide the Services to you during the Term:
        1. In accordance with this Agreement and New Zealand law;
        2. Exercising reasonable care, skill and diligence; and
        3. Using suitably skilled, experienced and qualified personnel.
      2. Availability:  Infocare 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 a Force Majeure Event, or for other reasons outside of Infocare’s reasonable control (for example internet unavailability).  Infocare will use reasonable efforts to notify you of any unavailability in advance (by email, notification on the Website or otherwise), but will have no liability to you as a result of any downtime (howsoever caused).  
      3. The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, please do not use the Services. 

 

4. Development Services

      1. From time to time the parties may (by written agreement) agree that Infocare will customise or otherwise update the Services in accordance with a specification agreed in writing between the parties (“Customisation”). For the avoidance of doubt, any Customisation is subject to you making payment of any of Infocare’s associated fees (as agreed between the parties) in relation to each Customisation (“Development Fees”). 
      2. From the date when a Customisation is first made available to you, the Customisation shall form part of the Service under the Agreement, and accordingly from that date your rights to use the Customisation shall be governed by these Terms and Conditions.
      3. You must provide Infocare with:
        1. Such access and co-operation (at such times, and with any reasonable restrictions, as specified by you acting reasonably) as is required by Infocare (acting reasonably) to enable the performance by Infocare of its obligations under this clause 4; and
        2. All information and documents required by Infocare (acting reasonably) in connection with the performance by Infocare of its obligations under this clause 4.
      4. Unless otherwise agreed in writing, you will be responsible for procuring any third-party co-operation reasonably required by Infocare to enable Infocare to fulfil its obligations under this clause 4.

 

5. Data Retention

    1. Infocare will, in accordance with the terms of this Agreement and the Data Retention Terms and Conditions, provide data retention services to assist you in meeting your obligations relating to keeping and maintaining records as required to support funding claims (as set out in chapter 11 of the Ministry of Education’s Early Childhood Funding Handbook).  
    2. The terms and conditions set out in the Data Retention Terms and Conditions will apply to the provision of Data Retention Services both during the Term and for the duration of any Data Retention Term thereafter.
    3. For the avoidance of any doubt, and as further set out in the Data Retention Terms, in the event that:
      1. You allow any third party to extract any Data (including any Data uploaded to the Infocare system) directly from the Infocare system into any third party database; or
      2. The Data Retention Terms and Conditions are terminated or expire (for any reason) including, for the avoidance of any doubt, as a result of non-payment by you of the Data Retention Fees, then Infocare will have no obligation to retain, and provides no warranty or guarantee in respect of the ongoing availability of, your Data.

 

6. Training and Helpdesk Support

      1. As a part of the Services, Infocare will provide you with up to four (4) hours of initial user training via either the telephone or online conference (Zoom, etc.) through a provider selected by Infocare to assist you in connecting to, and making use of, the Services (“Initial User Training”). Training requested by you after the Initial User Training will be charged at Infocare’s then current hourly rates.
      2. You may access Infocare’s telephone and email helpdesk, Monday to Friday (excluding statutory holidays) between 8:30 a.m. and 4:30 p.m. on:
        1. By phone: 0508 463622
        2. By email: help@infocaresolutions.co.nz

 

7. System Access

      1. Infocare will provide you with all necessary user accounts (including a password and login ID) in order for you to access the Services. 
      2. You are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.  You will remain fully responsible for any unauthorised use of any account, log-ins, access codes or passwords issued to you.
      3. You must, immediately notify Infocare (by email to help@infocaresolutions.co.nz) upon becoming aware of any actual or suspected unauthorised access or use of any account, log-ins, access codes or passwords issued to you.
      4. By entering into this Agreement, you agree not to access (or attempt to access) any of the Services by any means other than using the access details provided by Infocare, and through the interface that is provided by Infocare, unless you have been specifically allowed to do so in a separate agreement with Infocare. 

 

8. Security

      1. Infocare will use all commercially reasonable technical and industry-standard measures to protect the security of the Data, but does not guarantee that those security measures will be error-free, or guarantee the security and confidentiality of any Data.  Infocare will not be responsible or liable for any breaches of security or unauthorised access beyond its reasonable control.  

 

9. Your Obligations

      1. You (and any of your personnel authorised to use the Services) must:
        1. Use the Services in accordance with this Agreement solely:
          1. To allow you to make full use of the Services; 
          2. For your own internal business purposes; and  
          3. For lawful purposes;  
        2. Not resell or make available the Services to any third party, or otherwise commercially exploit the Services; 
        3. Ensure that you comply with the instructions set out in any robots.txt file present on the Services;
        4. Comply with any third-party terms applicable to the Services and to any Third-Party Feature provided via the Services, which it has been made aware of by Infocare; and
        5. Cooperate in good faith with Infocare’s investigations into any outages of the Services, security breaches, or suspected breaches of the terms of this Agreement by you or any of your personnel.
      2. You (and any of your personnel authorised to use the Services) must:
        1. Keep (and must ensure that any of your personnel using your user account(s) keep) all user accounts, user log-ins and passwords secure at all times;  
        2. Keep all account details, user logins and passwords you have in your possession secure at all times, and shall treat such information with the utmost confidence;
        3. Use reasonable endeavours to prevent unauthorised access to or use of the Services and must not (and must ensure that any of your personnel using your user account(s) do not) disclose account, user log-in or password information relating to the Services to any other person (except with Infocare’s prior approval); 
        4. Not impersonate another person or misrepresent authorisation to act on behalf of others or Infocare;  
        5. Correctly identify the sender of all electronic transmissions;
        6. Not attempt to undermine the security or integrity of the Systems or the Services; 
        7. Not use, or misuse, the Services in any way which may impair the functionality of the Systems or the Services or impair the ability of any other user to use the Services;
        8. Not access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers);
        9. Not attempt to view, access or copy any material or data other than: 
          1. That which you are authorised to access; and
          2. To the extent necessary for you and your personnel to use the Services in accordance with this Agreement;
        10. Comply with the terms of this Agreement, the Privacy Policy and any other terms set out on the Website, in each case as updated from time to time by Infocare; and 
        11. For security purposes, change the access codes and passwords you use to access the Services, as directed by Infocare from time to time 
      3. You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.  
      4. You must not: 
        1. Licence, sublicense, sell, resell, rent, lease, transfer, distribute or otherwise exploit the Services; 
        2. Replicate, duplicate, copy, decompile, reverse engineer, disassemble, translate, or otherwise seek to obtain or derive the source code, underlying ideas or algorithms of any part of the Services (including the Systems);
        3. Take any action that imposes an unreasonable or disproportionately large load on the infrastructure used to deliver the Services, the Systems of the Website; 
        4. Engage in any activity that (or might reasonably be expected to) interferes with or disrupts the Services (or the servers and networks, which are connected to the Services); or
        5. Except with the prior approval of Infocare, extract, or allow any third party to extract, any Data (including any Data uploaded to the Infocare system) directly from the Infocare system into any third party database.
      5. The customer is solely responsible for ensuring that its relevant personnel comply with these Terms and Conditions (including, without limitation, the terms in this clause 8). Any breach by any such personnel will be deemed to be a breach by the customer.

 

10. GoText

      1. If selected by you, the provision of the “GoText” services (“GoText”) is subject to the terms and conditions set out in this clause 10, in addition to those terms contained in the rest of this Agreement.
      2. You acknowledge that, in providing GoText, Infocare delivers text/SMS messages via major telecommunications companies and mobile network providers and can therefore only influence the delivery transmission of text/SMS messages within the technical constraints imposed by the above mentioned providers. Text/SMS messages submitted via the internet will be transferred to the addressed mobile recipients in due course, provided that the recipient’s phone is switched on and located in an area covered by its subscribed mobile network provider. You acknowledge that, depending on the recipient’s mobile provider service, it may not be possible to transmit the text/SMS message to the recipient successfully. Infocare neither claims nor guarantees either availability or performance of this service. While Infocare makes every effort to deliver the message promptly, Infocare accepts no liability for transmission delays or message failures. 
      3. Infocare debits the charges for transmitted text/SMS messages according to its transmission logs. These logs are deemed correct and valid even if the customer has objected to the correctness of the accounting records, except if Infocare’s investigations have produced evidence of technical problem or error. Because Infocare cannot guarantee delivery of the SMS messages to the recipients due to possible errors on the part of the mobile network providers, Infocare will not (to the extent permitted by law) refund charges for undeliverable SMS messages to you. You agree that all activities, which can be traced to your username and password, are deemed as having been performed by yourself and are legally binding to you. 
      4. GoText may only be used for lawful purposes. Transmission or solicitation of any material that violates the laws of New Zealand or any other jurisdiction that may apply is prohibited. This may include material that is obscene, threatening, harassing, libellous, or in any way a violation of intellectual property laws or a third party’s intellectual property rights. 
      5. You hereby undertake that you will, when using GoText, comply with the Unsolicited Electronic Messages Act 2007 and all other applicable anti-spam and privacy legislation and guidelines.
      6. You may not use GoText to distribute illegal contests, pyramid schemes, chain letters, or multi-level marketing campaigns.
      7. You may not use GoText to send message campaigns that link to or display nudity, obscene content, gambling related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that Infocare deems inappropriate.
      8. You represent, covenant, and warrant that you will use GoText only in compliance with the Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). You agree you will not access or otherwise use third party contact lists in connection with preparing or distributing unsolicited messages to any third party. You hereby agree to indemnify and hold harmless Infocare against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services. Although Infocare has no obligation to monitor the content provided by you or your use of GoText, Infocare may do so and may remove any such content or prohibit any use of GoText it believes may be (or is alleged to be) in violation of the foregoing.
      9. All message delivery prices are subject to change at any time. You are responsible for reviewing the price schedule from time to time and remaining aware of the prices charged by Infocare. Infocare will immediately advise you of price changes. Any objections must be raised within 7 days for special consideration. Payment in advance for GoText can be made by a valid credit card accepted by Infocare, unless other payment arrangements have been made between you and an authorised Infocare representative.
      10. You are responsible for maintaining the security of your account, passwords, and files, and for all uses of your account and of GoText in your name. Infocare reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.

 

11. Software

    1. In consideration of the Fees payable by you to Infocare, Infocare grants you, subject to and on the terms and conditions set out in this Agreement, a personal, non-exclusive, non-transferable, non-assignable limited licence to access and use the Software for the term of this Agreement solely for the purpose of enabling you to access, use and enjoy the benefit of the Services in accordance with the terms of this Agreement. 
    2. You will not (and you may not permit anyone else to):
      1. Translate, copy, modify, create a derivative work of, reverse engineer, reverse assemble or decompile or otherwise attempt to access or discover the source and/or object code of the whole or any part of the Software;
      2. Copy or reproduce the Software by any means or in any form without Infocare’s prior written consent; 
      3. Modify, alter or adapt the Software or merge all or any part of the Software with any other software;
      4. Permit any unauthorised third person to examine, repair or in any way alter the Software; and 
      5. Provide access to, sell, transfer, licence, sub-licence, loan, lease, disclose or publish the Software to any third person, unless this is expressly permitted or required by law, or unless you have been specifically authorised do so by Infocare, in writing.
      6. The Software may automatically download and install updates from time to time from Infocare.  These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions.  You hereby agree to receive such updates (and permit Infocare to deliver these to you) as part of your use of the Services.

12. Third Party Solutions

      1. Third party Solutions, either linked to the Website or provided via the System, are the responsibility of the third party provider and their inclusion on the Website or within the System does not imply endorsement by Infocare. Infocare is not responsible for the Third Party Solutions and does not make any representations regarding the Third Party Solutions. Infocare will not be liable for any damages or loss arising in any way out of or in connection with any information or Third Party Solutions.
      2. Where you acquire products or services via a Third Party Solution, that third party service provider’s liability will be pursuant to the third party service provider’s terms and conditions (if any).

 

13. Fees

      1. In consideration for your use of the Services, you must pay to Infocare the Fees.
      2. Infocare may from time to time, by not less than 30 days’ notice (either in writing or via the Software) to you, increase the Fees.  In the event that Infocare exercises its right to increase the Fees, you shall have a right, on notice in writing to Infocare, to terminate your subscription for Services.  For the avoidance of any doubt, you are not entitled to any refund, discount or other compensation as a result of any increase in the Fees or the termination by you of the Agreement in accordance with this clause.
      3. Infocare does not offer, and you will not be entitled to, any refund or credit for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account.
      4. Expenses incurred by you associated with the installation, implementation, termination and receipt of the Services shall be your responsibility. 

 

14. Payment Terms

      1. Unless specifically agreed otherwise by the parties in writing, the payment terms set out in this clause 14 shall apply to all Services.
      2. Infocare shall provide you with monthly GST invoices for the Fees.  Each invoice shall be itemised and include all information reasonably required in order to enable you to establish the accuracy of the invoice.
      3. All Fees payable by you to Infocare under this Agreement:
        1. Are stated exclusive of GST. You shall pay to Infocare GST on the Fees, at the then applicable rate, at the same times as it is required to make payment of the Fees;
        2. Will be paid in full without deduction, withholding, counterclaim or set-off of any kind; and
        3. Are payable monthly in New Zealand dollars and (unless otherwise agreed in writing) either:
          1. using the Direct Debit service nominated by Infocare in accordance with the Direct Debit Terms; or
          2. within 20 days of the end of each month. 
      4. If you fail to make payment of any amount by the due date, interest (calculated on a daily basis from the due date until the date that payment is made in full to Infocare) shall accrue and be payable on the overdue amount at a rate per annum equal to 5% above the then current unsecured business overdraft lending rate charged by Infocare’s primary bankers. Such interest shall compound monthly at such a rate after as well as before any judgment. Interest payable under this clause shall be payable immediately on demand.
      5. You will be liable to pay all Fees for the full Term of this Agreement, whether or not you actually use the Services for all or any of that time.

 

15. Term and Termination

      1. Unless terminated earlier in accordance with the terms set out herein, this Agreement will commence on the Commencement Date and will continue:
        1. For Fixed Term Customers, for a term of 12 months from the Commencement Date (“Initial Term”).  This Agreement shall be automatically extended beyond the Initial Term for further successive periods of 12 months (each a “Renewal Term”) unless either party delivers notice to the other within the final 3 months of the Initial Term or then current Renewal Term (as applicable) terminating this Agreement at the expiry of the Initial Term or the then current Renewal Term (as applicable); or
        2. For Monthly Customers, on a rolling monthly term, until such time as either party provides written notice to the other terminating the Agreement, following which the Agreement will automatically terminate at the end of the month following the date of such notice.
      2. Infocare may, by notice in writing to you, terminate this Agreement if you fail to pay Fees, or any other amount payable by you pursuant to this Agreement, when due and such default continues for a period of 5 or more Business Days. 
      3. Either party (“First Party”) is entitled to terminate this Agreement immediately by notice in writing to the other party if the other party has breached a material term of this Agreement and such breach is incapable of remedy (or if it is capable of remedy, the other party has failed to remedy such breach to the First Party’s reasonable satisfaction within 10 Business Days’ written notice from the First Party informing the other party of the breach and requiring it be remedied).
      4. On termination or expiry of this Agreement for any reason whatsoever, you must immediately make payment to Infocare of Fees for all Services performed up to and including the date of termination or expiry and for all other Fees and amounts payable by you to Infocare in connection with periods up to and including the date of termination or expiry; 
      5. Termination or expiry of this Agreement will be without prejudice to the rights and remedies of the parties that have accrued prior to termination or expiry, including for any prior breach of this Agreement. This clause 15 and clauses 16 (Liability and Indemnity), 17 (Intellectual Property) and 18 (General) and any other clause intended to survive termination or expiry, will continue in effect after termination or expiry of this Agreement.

 

16. Liability

    1. The aggregate liability of Infocare and its directors, officers, employees and agents for all losses, claims, costs or damages suffered or incurred by you arising out of or in connection with this Agreement, and the performance or non-performance of the Services, whether based on an action or claim in contract, tort (including negligence or breach of statutory duty), breach of statute or otherwise, is limited to the greater of:
      1. $5,000; and
      2. The amount of Fees received by Infocare from you under this Agreement over the previous 12 completed calendar months of the term of this Agreement. 
    2. Where legislation or the rule of law implies into this Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in this Agreement.  However, the liability of Infocare for any breach of that condition or warranty is (to the extent permitted by law) limited, at Infocare’s option, to:
      1. Supplying the Services again; and/or
      2. Paying the costs of having the Services supplied again.
    3. Neither party will be liable to the other party, in any way related to this Agreement, or the Services, whether that liability arises in contract, tort (including negligence), equity, under statute or otherwise, for:
      1. Loss of profits or loss of revenue (in each case whether direct or indirect);
      2. Any indirect, special or consequential loss or damage whatsoever (except in instances of fraud or wilful concealment), which shall include, but not be limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss arising as a result of:
        1. Any reliance placed by you on the completeness, accuracy or existence of any advertising, or as a consequence of any relationship or transaction between you and any advertiser or sponsor whose advertising appears on the Services;
        2. Any changes which Infocare may make to the Services, or for any permanent or temporary cessation in the provision of the Services (or any features within the Services);
        3. The deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted by or through your use of the Services;
        4. Your failure to provide Infocare with accurate account information; or
        5. Your failure to keep your password or account details secure and confidential.

The limitations on Infocare’s liability to you in the above paragraph shall apply whether or not Infocare has been advised of or should have been aware of the possibility of any such losses arising.

      1. Subject to clause 16.3, you agree to indemnify and hold Infocare harmless from and against any and all losses, expenses (including legal costs on a solicitor and own client basis), liabilities, actions, proceedings, claims or demands that Infocare may suffer or incur as a result of any breach or alleged breach by you of your obligations under this Agreement.
      2. None of the exclusions or limitations set out in this Agreement will have the effect of limiting or excluding any form of liability:
        1. Arising from a breach of clause 17 (Intellectual Property); or
        2. To the extent such liability results from willful default or cannot be so limited or excluded under applicable law.

 

17. Intellectual Property

      1. Subject to clause 17.2, title to, and all Intellectual Property Rights in, the Services, and all Systems is and remains the property of Infocare (and its licensors).  You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
      2. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property.  You hereby grant Infocare 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 its rights and performance of its obligations in accordance with this Agreement. 
      3. Each party shall retain ownership of all of its Intellectual Property in existence as at the date of this Agreement. Nothing in this Agreement confers on either party any ownership, usage or other rights in respect of any pre-existing Intellectual Property owned by or licensed to the other party.
      4. Developed IP: 
        1. Subject to sub-clause (b) below, Developed IP which is created as a part of, or which is consequential to, the performance of Services shall vest in and be owned by Infocare.  
        2. Unless otherwise agreed in writing between the parties, Customisation IP which is created as part of a Customisation shall vest in and be owned by Infocare, and nothing in this Agreement shall prevent or restrict Infocare from making such Customisation IP or Customisation available to third parties on terms acceptable to it (at its sole discretion). 
        3. Each party undertakes to execute all documents and to do all acts reasonably requested by the other party to carry out and give effect to this clause 17.4 and the ownership of the Developed IP and Customisation IP as specified above.
      5. You hereby grant to Infocare a non-exclusive royalty free licence to use the Customisation IP as Infocare reasonably requires to perform its obligations under this Agreement.
      6. To the extent not owned by Infocare, you grant Infocare a royalty-free, transferable, irrevocable and perpetual licence to use for Infocare’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by Infocare in the provision of the Services.
      7. If you provide Infocare with ideas, comments or suggestions relating to the Services or Systems (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 Infocare; and
        2. Infocare may use or disclose the feedback for any purpose.
      8. A party will not, either during or at any time after completion, expiry or termination of this Agreement, in any way question or dispute the other party’s ownership (if any) of Intellectual Property as set out in this clause 17.
      9. Each party agrees not to use or permit to be used by any other person, any Intellectual Property that belongs to the other party except in connection with providing, or receiving the benefit of, the Services and in particular, neither party will use any of the other party’s Intellectual Property for its own purposes or for any purpose which is adverse to the interests of the other party.
      10. You grant Infocare the right to use the Data (on an aggregated and anonymised basis) for the purposes of industry benchmarking and general marketing and product development purposes, provided that Infocare complies with all applicable laws with respect to such use. This right survives termination or expiry of this Agreement.

 

18. General

    1. If a party (“Affected Party”) is prevented from performing any of its obligations under this Agreement by reason of (i) flood, storm, earthquake, fire, explosion, or other event of nature, (ii) act or restraint of any local Authority, government department, court order or any order or restraint issued or imposed by any other regulatory or quasi-regulatory body, (iii) strike, lockout or other industrial action, or (iv) any other event outside the reasonable control of the Affected Party (each, a “Force Majeure Event”), then the relevant obligation(s) shall be suspended for the duration of the Force Majeure Event provided that the Affected Party: (a) notifies the other party of the nature and extent of the Force Majeure Event and the obligation(s) impacted as soon as practicable after the Affected Party becomes aware of the Force Majeure Event and its impact on its obligations; and (b) the Affected Party uses its reasonable endeavours to perform its obligations on time notwithstanding the Force Majeure Event(s). Nothing in this clause will operate to suspend any of your obligations to make payment of Fees or other monies under this Agreement when the same become due. If a Force Majeure Event prevents a party from performing their obligations under this Agreement for a period of more than 60 consecutive days the other party may terminate this Agreement on notice in writing to the Affected Party.
    2. Each party will do all things and execute all documents reasonably required to give effect to the provisions and intent of this Agreement.
    3. No waiver of any breach, or failure to enforce any provision of this Agreement at any time by either party shall in any way limit or waive the right of such party to subsequently enforce and compel strict compliance with the provisions of this Agreement.
    4. If any provision of this Agreement is or becomes unenforceable, illegal or invalid for any reason, it shall be deemed to be severed from this Agreement without affecting the validity of the remainder of this Agreement and shall not affect the enforceability, legality, validity or application of any other provision of this Agreement.
    5. Nothing in this Agreement shall create or evidence any partnership, joint venture, agency, trust or employer/employee relationship between the parties, and a party may not make, or allow to be made, any representation that any such relationship exists between the parties.  A party shall not have authority to act for, or to incur any obligation on behalf of the other party, except as expressly provided for in this Agreement.
    6. You may, upon not less than 10 working days’ notice to Infocare, assign this Agreement to a third party provided always that, prior to such an assignment taking effect, you must provide Infocare with such information about the assignee as Infocare (acting reasonably) requires. 
    7. Infocare reserves the right to review and amend the terms of this Agreement from time to time.  If, following any such review, there is to be any change to the terms of this Agreement, then that change will take effect from the date on which Infocare notifies you of such change.  In the event that you do not agree with the changes you may, on notice in writing to Infocare, terminate you subscription for Services
    8. Subject to any provision to the contrary, this Agreement will enure to the benefit of, and be binding upon, the parties and their successors, trustees, permitted assigns or receivers.
    9. This Agreement is governed by the laws of New Zealand.  The parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to this Agreement.

 

Data Retention Terms and Conditions

Version 1.0 – Last Update 10/06/2020

1. Agreement

    1. These terms and conditions will automatically apply during the Term.
    2. These Data Retention Terms and Conditions will automatically continue in force following the expiry or termination of the remainder of the Agreement and, unless terminated earlier in accordance with the terms set out herein, shall continue to apply until the earlier of:
      1. The date that – at your request – Infocare transfers your Data either to you, or to a third party; or
      2. The date being 7 years from the date of termination or expiry of remainder of the Agreement

(the “Data Retention Term”)

      1. Unless otherwise defined, capitalised terms used in these Data Retention Terms and Conditions have the meaning given to them in the General Terms.

 

2. Data Retention

      1. Infocare will for the duration of the Data Retention Term provide data retention services to assist you in meeting your obligations relating to keeping and maintaining records as required to support funding claims (as set out in chapter 11 of the Ministry of Education’s Early Childhood Funding Handbook), on the terms and conditions set out herein (“Data Retention Services”).  
      2. Subject to the terms and conditions set out herein, Infocare will, pursuant to the Data Retention Services, maintain a copy of your Data for not less than 7 years from the date it is uploaded to the System.
      3. Infocare will use all commercially reasonable technical and industry-standard measures to protect the security of the Data, but does not guarantee that those security measures will be error-free, or guarantee the security and confidentiality of any Data.  Infocare will not be responsible or liable for any breaches of security or unauthorised access beyond its reasonable control. 
      4. You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.  

 

3. Fees

      1. Fees for the Data Retention Services (“Data Retention Fees”) are as follows:
        1. During the Term, Data Retention Fees are incorporated into the Fees;
        2. Following termination or expiry of the Agreement, the Data Retention Fees payable by you for Data Retention Services are as set out in the Pricing Schedule (as amended Infocare from time to time in accordance with these terms).
      2. Infocare may from time to time, by not less than 30 days’ notice (either in writing or via the Software) to you, increase the Data Retention Fees.  In the event that Infocare exercises its right to increase the Data Retention Fees, you shall have a right, on notice in writing to Infocare, to terminate your subscription for Data Retention Services.  For the avoidance of any doubt, you are not entitled to any refund, discount or other compensation as a result of any increase in the Data Retention Fees or the termination by you of the Agreement in accordance with this clause.

 

4. Payment Terms

      1. Notwithstanding the termination or expiry of the Agreement, clause 14 of the General Terms shall continue to apply in respect of the Data Retention Services for the duration of the Data Retention Term. 

 

5. Your obligations

      1. Notwithstanding the termination or expiry of the Agreement, clause 9 of the General Terms shall continue to apply in respect of the Data Retention Services for the duration of the Data Retention Term. 

 

6. Term and Termination

      1. Infocare may, by notice in writing to you, terminate these Data Retention Terms and Conditions if you fail to pay the Data Retention Fees, or any other amount payable by you pursuant to these Data Retention Terms and Conditions, when due and such default continues for a period of 5 or more Business Days. 
      2. Either party (“First Party”) is entitled to terminate these Data Retention Terms and Conditions immediately by notice in writing to the other party if the other party has breached a material term of these Data Retention Terms and Conditions and such breach is incapable of remedy (or if it is capable of remedy, the other party has failed to remedy such breach to the First Party’s reasonable satisfaction within 10 Business Days’ written notice from the First Party informing the other party of the breach and requiring it be remedied).
      3. In addition to the rights of termination under clauses 6.1 and 6.2, either party may terminate these Data Retention Terms and Conditions for any reason, by notice in writing to the other party of not less than 60 Business Days.
      4. Following the termination or expiry of these Data Retention Terms and Conditions (for whatever reason), Infocare is under no obligation to retain, and provides no warranty or guarantee in respect of the availability of, your data following the end of the Data Retention Term.  
      5. On written request from you, and upon payment by you of a transfer fee of $468 (plus GST), Infocare use commercially reasonable endeavours to assist with the transfer of Data from its servers to services nominated by you.  
      6. Notwithstanding clause 6.5: 
        1. You will be solely responsible for ensuring the storage and security of the Data on and from the end of the Term; and
        2. Infocare takes no responsibility for any loss of Data in connection with the transfer of such Data other than in accordance with Infocare’s written instructions.  Without limiting the forgoing, Infocare shall have no liability whatsoever in connection with any loss of Data in the event that you allow any third party to extract, any Data (including any Data uploaded to the Infocare system) directly from the Infocare system into any third party database.
      7. You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.  

 

7. Liability

      1. The aggregate liability of Infocare and its directors, officers, employees and agents for all losses, claims, costs or damages suffered or incurred by you arising out of or in connection with these Data Retention Terms and Conditions, and the performance or non-performance of the Data Retention Services, whether based on an action or claim in contract, tort (including negligence or breach of statutory duty), breach of statute or otherwise, is limited to the greater of:
        1. $5,000; and
        2. The amount of Data Retention Fees received by Infocare from you under these Data Retention Terms and Conditions over the previous 12 completed calendar months of the term of this Agreement. 
      2. In addition to clause 7.1 above, and notwithstanding the termination or expiry of the Agreement, clauses 16.2 to 16.4 and 16.5(b) of the General Terms shall continue to apply in respect of the Data Retention Services for the duration of the Data Retention Term. 

 

8. General

    1. Notwithstanding the termination or expiry of the Agreement, clause 18 of the General Terms shall continue to apply in respect of the Data Retention Services for the duration of the Data Retention Term.
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