"Access Fee" means the monthly fee (excluding any taxes and duties) payable by You for your Personnel Limit, in accordance with the fee schedule set out on the Website (which Enfinit may change from time to time), plus any additional Fees payable by You for services provided by Enfinit.
"Confidential Information" includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Software but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
"Data" means any data inputted by You into the Software.
"Intellectual Property Right" means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
"Software" means the TimeFiler software available (as may be changed or updated from time to time) via the Website.
"Website" means the Internet site at the domain www.timefiler.com or any other site operated by Enfinit.
"You" means you and includes your employees, consultants, representatives and agents.
Use of Software
Enfinit grants You the right to access and use the Software via the Website, for so long as you pay the associated Access Fee for your Personnel Limit. This right is non-exclusive and non-transferable and limited by the terms of this Agreement.
Confidentiality & Privacy
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this Agreement.
Each party's obligations under this clause will survive termination of this Agreement.
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
Title to, and all Intellectual Property Rights in the Software and any documentation relating to the Software remain the property of Enfinit.
Title to, and all Intellectual Property Rights in, the Data remain your property. You must maintain copies of all Data inputted into the Software. Enfinit adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data.
Limitation of Liability
To the maximum extent permitted by law, Enfinit excludes all liability and responsibility to you (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of Data, profits and savings) or damage resulting, directly or indirectly, from the use of, or reliance on, the Software. If you are not satisfied with the Software, your sole and exclusive remedy is to terminate this Agreement in accordance with clause 8(a).
a. Five day return policy
If for any reason you decide that you do not wish to continue using the Software within the first five days of agreeing to the terms of this Agreement for the first time (or a substantially similar agreement with Enfinit), you may terminate this Agreement (and no Access Fee will be payable) by sending an e-mail advising of the termination within 120 hours of first agreeing to the terms of this Agreement.
b. No-fault termination:
Either party may terminate this Agreement by giving at least one year's notice to the other party (you may notify Enfinit by sending an e-mail advising of the termination).
c. Termination for Breach:
Enfinit may terminate this Agreement if you:
breach this Agreement and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
breach this Agreement and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 3 or any payment more than 30 days overdue); or
go into liquidation or has a receiver or manager appointed of any of your assets or become insolvent, or make any arrangement with your creditors, or you are subject to any similar insolvency event in any jurisdiction.
Termination of the Agreement is without prejudice to the rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement you will:
remain liable for any accrued charges and amounts which become due for payment before or after termination; and
immediately cease to use the Software.
d. Expiry or termination:
Clauses 4, 5, 6, 7, 8 and 10 survive the expiry or termination of this Agreement.
a. Payment obligations:
Enfinit will invoice you by sending an email to the email address you provide. The Access Fee is calculated each month for payment on the 20th of that month. Payment of the Access Fee will cover your use of the Software for the period stipulated on the invoice. You are responsible for payment of all taxes and duties in addition to the Access Fee.
b. General obligations:
You must only use the Software and Website for your own lawful internal business purposes, in accordance with the terms of this Agreement and any notice or condition posted on the Website.
c. Access conditions:
You will ensure that all usernames and passwords required to access the Software are kept secure and confidential. You will immediately notify Enfinit of any unauthorised use of your passwords or any other breach of security. As a condition of this Agreement, when accessing and using the Software, you must:
not attempt to undermine the security or integrity of Enfinit's computing systems or networks or, where the Software is hosted by a third party, that third party's computing systems and networks;
not use the Software in any way which may impair the function of the Software or Website;
not attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the Software is hosted; and
not transmit, or input into the Software, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which you do not have the right to use).
d. Communication Conditions:
As a condition of this Agreement, if you use any communication tools which is now or in the future available through the Website (such as any forum, chat room or message centre), you agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Software including (but not limited to): offers of goods or services for sale, files that may damage any other person's computing devices or software, content that may be offensive to any of our other users, or material in violation of any law (including material that is protected by copyright or trade secrets which you do not have the right to use).
When you make any communication on the Website, you represent that you own the content of the communication. Enfinit is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Software. As with any other web-based forum, you must exercise caution when using the communication tools available on the Website. However, Enfinit does reserve the right to remove any communication at any time in its sole discretion.\
You indemnify Enfinit against all claims, costs, damage and loss arising from your breach of this Agreement, including (but not limited to) any costs relating to the recovery of any Access Fees that have not been paid by you.
Warranties & Acknowledgements
You acknowledge that:
The provision of access to, and use of, the Software is on an "as is" basis and at your own risk.
Enfinit does not warrant that the use of the Software will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Software, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Software. Enfinit is not in any way responsible for any such interference or prevention of your access or use of the Software.
Enfinit may make changes to correct errors or alter the look and feel and/or functionality of the Software from time to time, where Enfinit considers that doing so is in the best interests of Software users collectively.
b. No warranties:
Enfinit gives no warranty about the Software. Without limiting the foregoing, Enfinit does not warrant that the Software will meet your requirements or that it will be suitable for your purposes. To avoid doubt, all implied conditions or warranties are excluded, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
c. Consumer guarantees:
You agree and represent that you are acquiring the right to access and use the Software and entering this Agreement for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees intended to protect individuals do not apply to the supply of the Software or this Agreement.
In the case of technical problems you must make all reasonable efforts to investigate and diagnose problems before contacting Enfinit. If you still need technical help, please email us at firstname.lastname@example.org.
a. Entire agreement:
This Agreement supersedes and extinguishes all prior agreements, representations (whether oral or written), and understandings and constitutes the entire agreement between you and Enfinit relating to the Software and the other matters dealt with in this Agreement.
If either party waives any breach of this Agreement, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under this Agreement if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
d. No Assignment:
You may not assign or transfer any rights to any other person.
e. Governing law and jurisdiction:
This Agreement is governed by the laws of New Zealand and you hereby submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement, without reference to any conflicts of laws.
If any part or provision of this Agreement is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.