General Terms and Conditions of Use for the ActionThis Website and Services
The following terms and conditions apply to all users of the actionthis.com website and to all purchases of software and services from ActionThis Limited (“we” or “us”). By viewing and using the website you will be deemed to agree to these terms of use without qualification. If you do not agree to be bound by these terms, you should stop accessing and using the website.
A. Use of the Website
1. Liability: Reasonable care has been taken to ensure the facts stated in the website are accurate and the opinions given are fair and reasonable, however, neither we nor any of our employees, to the fullest extent permitted by law, will in any way be responsible for errors or misstatements or be liable whether in contract, tort (including negligence) or otherwise for any loss or damage however caused (whether direct, indirect, consequential, special, or loss of profits).
2. Copyright and Limited Reproduction Notices: The contents of the website are the copyright of ActionThis Limited or suppliers to it. No part of the website may be distributed or copied for any commercial purpose and you are not permitted to incorporate the material or any part of it in any other work or publication (whether in hard copy, electronic or any other form) without giving ActionThis clear credit. Without limiting the obligation to give credit to ActionThis, you may not remove or alter any trademarks or logos that appear on any material on the website.
3. Linking: The contents of the website may include links to third party materials (“linked sites”). We will not be responsible for the contents of any linked site or liable for any direct or indirect loss or damage suffered by you from accessing, using, relying on or trading with third parties. These links are provided to you only as a convenience, and the inclusion of any link does not imply our endorsement of the site or any association with their operators. We reserve the right to prohibit links to the website and you agree to remove or cease any link upon our request. You may not frame any part of the website material by including advertising or other revenue generating material.
4. Advertisers: Any dealings with any advertiser appearing on the website are solely between you and the advertiser or other third party. We are not responsible or liable for any part of any such dealings or promotions.
5. Disclaimer: The website makes information and material available to you as a service. Use of the website material is at your own risk. We are not responsible for any adverse consequences arising out of the use of information, data or services contained on, or provided through, the website. The material and service contained on, or provided through, the website have not been prepared by taking into account the particular objectives, situation or needs of any individual users. It is a general information service only. You should assess whether it is appropriate in light of your own objectives, situation and needs. We do not give any warranty of accuracy or reliability of information contained on the website to you or any other person. To the extent permitted by law we exclude all responsibility and liability for such material.
6. Communication Conditions: If you use any communication tools 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 website or our software or services 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. We are under no obligation to ensure that the communications on the website are legitimate. As with any other web-based forum, you must exercise caution when using the communication tools available on the website. However, we do reserve the right to remove any communication at any time in our sole discretion.
7. Confidentiality: 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 information exchanged between the parties (other than information that is public other than through an unauthorised disclosure of a party) in connection with this Agreement. Neither party will, without the prior written consent of the other, disclose or make any such 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.
8. Data: Any data inputted by you into the software remains your property but you will not be able to export any such data from the software. You should take, and maintain, a copy of all such data before inputting it into the software. You may request a copy of any data inputted by you into the software by emailing us at support@actionthis.com, which we will provide [as soon as reasonably practicable] for a reasonable fee. We will not access your data, however we do reserve the right to aggregate and use the metrics surrounding your data for our business purposes including benchmarking and comparison. We adhere to our best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but we do not make any guarantees that there will be no loss of data. We may also use third parties to store data and consequently our ability to store and retrieve your data is subject to change.
9. Privacy: We maintain a privacy policy, which you can read on our website. You agree to obtain any consents required from individuals whose personal information may be accessed by ActionThis in connection with the uses contemplated by the privacy policy.
10. Electronic Messages: When you subscribe for our newsletter, services or enter into a license with us, you are giving us your consent to contact you by way of electronic messages for marketing and promotional purposes.
B. Supply of Software and Services
1. Supply: On receipt of an order to purchase software or services, we will endeavour to supply you with the software or services ordered, but we will not be liable to any person if we decline to fulfil, or are unable to fulfil, an order.
2. Terms: We will supply software and services to you only on these terms and the terms of any applicable ActionThis Limited or third party software license provided by us (as may be amended from time to time). The only circumstance where any variation to these terms will apply is where we have expressly agreed in writing to that variation. If there is any conflict between these terms and conditions and our software license, the software license will take priority.
3. Price: The license fee for any license and the price of services is that stated on the website at the time of acceptance by us of your order, unless otherwise expressly agreed in writing by us. The prices exclude applicable taxes, including New Zealand goods and services tax. We may alter prices without notice and prices may be different from the price current at the time of order.
4. Payment: Where you are purchasing software or services directly from us, we require payment from you by credit card before software or services are provided to you. Where you are purchasing software or services from us but through a reseller, you must pay that reseller by the means specified by that reseller before software or services are provided to you.
5. Limitation of Liability: Our aggregate liability and that of our resellers and third party suppliers under or in connection with the software and services (whether under the terms of the license or otherwise) shall be limited to direct money damages not to exceed the total of prior payments made by you to us for the software and services in the six months prior to the act or omission giving rise to the liability. Notwithstanding anything to the contrary in these terms and conditions or the license, in no event will we, our resellers or our third party suppliers be liable under any theory of contract, tort, strict liability or other legal or equitable theory or otherwise for any indirect, consequential, special or incidental damages, or for third party claims or losses, lost profits, lost business revenue, other economic loss or any loss of data arising out of the use of or inability to use the software or the services or the cost of procuring substitute software or services even if we have been advised of the possibility of such risk.
6. Our Rights: If any amount payable by you is overdue, or in our opinion you are likely to be unable to meet your payment; or you are a company and you become bankrupt, insolvent, have a receiver appointed in respect of all or some of your assets, make or are likely to make an arrangement with your creditors, have a liquidator appointed, are placed under statutory or official management or any equivalent or analogous event occurs or your ownership or effective control is transferred or the nature of your business is materially altered, then:
(a) we will be entitled to cancel all or any orders or subscriptions with you which remain, or any part of any order or subscription with you which remains, unperformed, in addition to and without prejudice to our other remedies; and
(b) all amounts owing to us whether due for payment or not, will immediately become due and payable; and
(c) we will be entitled to immediately, or at any later date, discontinue providing you with software or services or to downgrade the software or service you receive. You acknowledge that, as a result of any such discontinuance or downgrade, you may lose access to any data that you have inputted into the software and we may not be able to or agree to retrieve such data in accordance with clause A8; and
(d) we will be entitled to reclaim any software in your possession or control and dispose of it for our own benefit and for that purpose we will be entitled, without notice, to enter directly or by our agents on any premises and computers where we believe software may be stored, without in any way being liable to any person.
7. No Refunds: We will not be liable to provide you with a refund for any software or services we provide, except as required by law.
8. Technical Problems: In the case of technical problems you must make all reasonable efforts to investigate and diagnose problems before contacting us. If you still need technical help, please email us at support@actionthis.com.
9. Changes to Terms and Conditions: We reserve the right to change these terms and conditions at any time by notifying users of the existence of revised terms and conditions through the website. By continuing to access the website, you agree to be bound by the amended terms and conditions.
10. Waiver: If at any time we do not enforce any of these terms or grant you time or other indulgence, we will not be construed as having waived that term or our rights to later enforce that or any other term.
11. Severability: If any portion of these terms and conditions is deemed to be invalid, illegal or unenforceable the remaining provisions shall remain in full force and effect.
12. Governing Law: These terms and the license will be governed by New Zealand law and you agree to submit to the exclusive jurisdiction of the New Zealand Courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.