1.1 These Terms apply to your use of the Service (as that term is defined below), unless we have a separate written agreement with you governing your use of the Service. By accessing and using the Service:
you agree to these Terms; and
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 on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
1.2 If you do not agree to these Terms, you are not authorised to access and use the Service, and you must immediately stop doing so.
2.1 We may change these Terms at any time by notifying you of the change by email or by posting a notice on the Website. Unless stated otherwise, any change takes effect from the date set out in the notice. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Service from the date on which the Terms are changed, you agree to be bound by the changed Terms.
2.2 These Terms were last updated on: 17 June 2021.
In these Terms:
Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Service. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the Multitudes Software. Your Confidential Information includes the Data.
Data means all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Service or any information obtained from External Data Sources that you have allowed the Service to access in accordance with clause 4.5, and including any personal information forming part of that data or information. For the purposes of these Terms, ‘personal information’ includes personal data, personally identifiable information or any equivalent terms used under applicable data protection and privacy laws.
External Data Source has the meaning given in clause 4.5.
Fees means the applicable fees set out on our pricing page on the Website or as agreed otherwise in writing between you and us, as may be updated from time to time in accordance with clause 8.5.
Force Majeure means an event that is beyond the reasonable control of a party, 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.
including and similar words do not imply any limit.
Intellectual Property Rights includes 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, goodwill, rights to use 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.
Multitudes Software means the software owned by us (and our licensors) that is used to provide the Service.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
a party includes that party’s permitted assigns.
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.
personal information means information about an identifiable, living person.
personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.
Service means the service having the core functionality described on the Website, as the Website is updated from time to time.
Start Date means the date that is the earlier of you first accessing or using the Service and you first providing, or giving us access to, Data.
Subscription Period means a monthly period commencing on the Start Date and on each monthly anniversary of the Start Date, unless a different subscription period has been selected by you or agreed in writing by you and us.
Underlying Systems means the Multitudes Software, IT solutions, systems and networks (including software and hardware) used to provide the Service, including any third party solutions, systems and networks.
We, us or our means Multitudes Limited, company number 6030674.
Website means the internet site at www.multitudes.co, or such other site notified to you by us.
Year means a 12-month period starting on the Start Date or the anniversary of that date.
You or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
Words in the singular include the plural and vice versa.
A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
4.1 We must use reasonable efforts to provide the Service:
in accordance with these Terms and New Zealand law;
exercising reasonable care, skill and diligence; and
using suitably skilled, experienced and qualified personnel.
4.2 Our provision of the Service to you is non-exclusive. Nothing in these Terms prevents us from providing the Service to any other person.
4.3 Subject to clause 4.4, we must use reasonable efforts to ensure the Service is available during normal business hours in New Zealand. 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. We must use reasonable efforts to publish on the Website or notify you by email advance details of any unavailability.
4.4 Through the use of web services and APIs, the Service interoperates with a range of third party service features. We do 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, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.
4.5 The Service may also ask you for permission to access certain information about you and your business held by third parties (External Data Sources). You are free to choose whether to grant this access. However, if you decide not to grant access, this may mean that you cannot use the Service, or that some of the features of the Service may not be provided or available to you.
4.6 You can stop the collection of information through any External Data Source at any time by revoking our authorisation to access the External Data Source.
4.7 If an External Data Source ceases to be available to us, we may suspend the Service until such time the External Data Source becomes available or terminate the Service and these Terms and you are not entitled to any refund, discount or other compensation as result of such suspension or termination.
5.1 Where the Service provided to you is designated as beta testing, beta, pilot, limited release, developer preview, non-production, or similar (Beta Service) or you have elected to access and use the Service for a trial period, then these Terms apply except to the extent varied in this clause 5.
5.2 We will provide you with the Service for a period of 30 days from the Start Date or as agreed otherwise in writing between you and us (Beta/Trial Period).
5.3 The Fees (if any) for your use of the Service during the Beta/Trial Period will be as set out on our pricing page on the Website or as agreed otherwise in writing between you and us.
5.4 The Service is provided to you during the Beta/Trial Period on an as is basis, and, despite any other provision in these Terms, we exclude all conditions, warranties, guarantees and indemnities in relation to the Service to the fullest extent permitted by law.
5.5 If you wish to access and use the Service following expiry of the Beta/Trial Period, you must purchase access to the commercially released, fully paid version of the Service.
5.6 Where we provide you with access to the Service as a Beta Service:
you acknowledge that the Service is still under development; and
we, as part of that development, may change or remove any feature or function of the Service at any time and for any reason without liability of any kind.
5.7 Nothing in these Terms imposes any obligation:
on you, at the termination or expiry of the Beta/Trial Period, to sign up to the commercially released, fully paid version of the Service or any other service provided by us; or
at the termination or expiry of the Beta/Trial Period, to provide the commercially released, fully paid version of the Service or any other service to you; or
to maintain any feature or part of the Service in any commercially released, fully paid version of the Service or any other service.
6.1 You and your personnel must:
use the Service in accordance with these Terms solely for:
your own internal business purposes in order to train, inform and support your employees; and
lawful purposes; and
not resell or make available the Service to any third party, or otherwise commercially exploit the Service.
6.2 When accessing the Service, you and your personnel must:
not impersonate another person or misrepresent authorisation to act on behalf of others or us;
correctly identify the sender of all electronic transmissions;
not attempt to undermine the security or integrity of the Underlying Systems;
not use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service;
not attempt to view, access or copy any material or data other than:
that which you are authorised to access; and
to the extent necessary for you to use the Service in accordance with these Terms; and
neither use the Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and data protection or privacy rights) or is Objectionable, incorrect or misleading.
6.3 A breach of any of these Terms by your personnel is deemed to be a breach of these Terms by you.
6.4 You are responsible for procuring all licences, authorisations and consents, and providing all notices, required for you and your personnel to use the Service, including to use the Data and store and input Data into, and process and distribute Data through, the Service.
7.1 You acknowledge that:
we may require access to the Data to exercise our rights and perform our obligations under these Terms; and
to the extent that this is necessary but subject to clause 10, we may authorise a member or members of our personnel to access the Data for this purpose.
7.2 You must arrange all consents, notices and approvals that are necessary for us to access the Data as described in clause 7.1.
7.3 You acknowledge and agree that:
use Data and information about you and your end users’ use of the Services (including any outputs or insights we produce for you as part of the Service) to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights.
our rights under clause 7.3a above will survive termination or expiry of the Agreement; and
title to, and all Intellectual Property Rights in, Analytical Data is and remains our property
7.4 You acknowledge and agree that to the extent Data contains personal information, in collecting, holding and processing that information through the Service, we are acting as your agent for the purposes of the Privacy Act 2020 and any other privacy law where that concept is applicable. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms. To the extent that you are subject to the EU General Data Protection Regulation (including as transposed into the laws of the United Kingdom), or data protection laws that impose equivalent obligations (“GDPR”) the terms of clause 7.8 will apply to your use of the Service.
7.5 While we will take standard industry measures to back up all Data stored using the Service, you agree to keep a separate back-up copy of all Data uploaded by you onto the Service.
7.6 You agree that we may store Data (including any personal information) in secure servers in the USA, and we may access that Data (including any personal information) in New Zealand and Australia from time to time.
7.7 You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party or any decision by a supervisory authority that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.
7.8 Capitalised terms used in this clause 7.8 have the meaning given to them by the GDPR. Where the GDPR applies to your use of the Service, you acknowledge that you are the Controller in respect of any Personal Data comprised in the Data, and that we act as your Processor. As your Processor, we will:
Process Personal Data on your documented instructions for the purpose of providing the Service and as otherwise necessary to perform our obligations under these Terms (unless otherwise required by applicable law to which we are subject, in which case we will inform you of that legal requirement before such Processing, unless that law prohibits such information on important grounds of public interest);
ensure that persons authorised by us to process Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
implement technical and organisational measures designed to ensure an appropriate level of security for Personal Data;
be generally authorised to engage another Processor to Process the Personal Data ("Sub-Processor"), subject to us:
notifying you of any intended changes to our use of Sub-Processors (which may include by email or by posting a notice on a customer portal), thereby giving you an opportunity to object;
including terms in our contract with each Sub-Processor which are no less protective than those set out in these Terms; and
remaining liable to you (subject to any limitations on liability in these Terms) for any failure by each Sub-Processor to fulfil its obligations in relation to the Processing of Personal Data.
notify you without undue delay upon becoming aware of any Personal Data Breach. Where it can be reasonably demonstrated that you (or any third party connected to you) was responsible for the Personal Data Breach (evidence of which shall include, but not be limited to, any related enforcement action taken against you or any connected third party by any supervisory authority), you shall reimburse our reasonable expenses in relation to our investigation and remediation of the Personal Data Breach;
provide reasonable assistance to you, including by taking appropriate technical and organisational measures, insofar as this is possible, in relation to requests for exercising a data subject’s rights; security of Processing; notification of a Personal Data Breach to a supervisory authority or data subject; and data protection impact assessments (including related consultations with supervisory authorities);
make available to you on request all information necessary to demonstrate compliance with this clause 7.8, and permit you, or an auditor mandated by you, and on at least 15 days' prior notice, and no more than once per calendar year, to inspect and audit the facilities used by us for the Processing of Personal Data, subject to you bearing our reasonable costs for facilitating the audit;
enter into a data transfer agreement, incorporating any standard contract clauses required by applicable law, for and on your behalf, in relation to any international transfer of your Personal Data (see clause 7.6) to a Sub-Processor; and
in accordance with the process set out in clause 13.8, at your choice, delete or return Personal Data to you upon termination or expiry of these Terms, except to the extent we are required by law to retain any data. For the avoidance of doubt, this obligation does not apply to Analytical Data. Where you do not exercise a choice, we will by default delete the Personal Data.
8.1 You must pay us the Fees.
8.2 The Fees exclude GST, which you must pay on taxable supplies.
8.3 If paying by invoice, you must pay the Fees:
a. by the 20th of the month following the date of invoice; and
b. electronically in cleared funds without any set off or deduction.
8.4 If you are paying by debit / credit card, the Fees will be charged to your valid debit/credit card on a monthly basis from the Start Date and in advance of each Subscription Period.
8.5 If you are paying by debit / credit card, unless you cancel your right to use the Service prior to the end of the Subscription Period in accordance with clause 13.1b, at the end of each Subscription Period we will automatically roll over your subscription for a further month. We will charge your credit card the Fees in advance of each Subscription Period.
8.6 If you are paying by debit / credit card and if we are unable to collect the Fees from your credit card for any reason, including where your card has expired or there are insufficient funds, you remain responsible for any uncollected amounts and we may suspend or cancel your access to the Service without giving you notice.
8.7 We may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or, if our primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
8.8 We may increase the Fees by giving at least 30 days’ notice. If you do not wish to pay the increased Fees, you may terminate these Terms and your right to access and use the Service on no less than 10 days’ notice, provided the notice is received by us before the effective date of the Fee increase. If you do not terminate these Terms and your right to access and use the Service in accordance with this clause, you are deemed to have accepted the increased Fees.
9.1 Subject to clause 9.2, title to, and all Intellectual Property Rights in, the Service, the Multitudes Software, the Website, and all Underlying Systems is and remains our property (and our licensors’ property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
9.2 Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.
9.3 To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
9.4 If you provide us with ideas, comments or suggestions relating to the Service, the Multitudes Software or Underlying Systems (together feedback):
all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
we may use or disclose the feedback for any purpose.
9.5 You acknowledge that the Service may link to third party websites, software or feeds that are connected or relevant to the Service. Any link from the Service does not imply that we endorse, approve or recommend, or have responsibility for, those websites, software or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites, software or feeds.
9.6 You agree that we may advertise or publicise the broad nature of our provision of the Service to you, including on our website and in promotional material. You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right to use your company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers. You may withdraw your consent to this at any time by emailing us at email@example.com stating that you do not wish to be used as a reference, following which we will remove your name and logo from our website and promotional material as soon as practicable and otherwise cease using your name and logo for these purposes.
10.1 Each party must, unless it has the prior written consent of the other party:
keep confidential at all times the Confidential Information of the other party;
effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
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, clauses 10.1a and 10.1b.
10.2 The obligation of confidentiality in clause 10.1 does not apply to any disclosure or use of Confidential Information:
for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
required by law (including under the rules of any stock exchange);
which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 10.
11.1 Each party warrants that it has full power and authority to enter into, and perform its obligations under, these Terms.
11.2 To the maximum extent permitted by law:
our warranties are limited to those set out in these Terms, 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 the amount set out in clause 12.1; and
we make no representation concerning the quality of the Service and do not promise that the Service will:
meet your requirements or be suitable for a particular purpose; or
be secure, free of viruses or other harmful code, uninterrupted or error free.
11.3 You agree and represent that you are acquiring the Service, and accepting these Terms, for the purpose of trade. The parties agree that:
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
it is fair and reasonable that the parties are bound by this clause 11.3.
11.4 Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
supplying the Service again; and/or
paying the costs of having the Service supplied again.
12.1 Our maximum aggregate liability under or in connection with these Terms or relating to the Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by you relating to the Service in the 3 month period prior to the date of the first event giving rise to liability. The cap in this clause 12.1 includes the cap set out in clause 11.2a.
12.2 Neither party is liable to the other under or in connection with these Terms or the Service for any:
loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
consequential, indirect, incidental or special damage or loss of any kind.
12.3 Clauses 12.1 and 12.2 do not apply to limit our liability under or in connection with these Terms for:
personal injury or death;
fraud or wilful misconduct; or
a breach of clause 10; or
any liability that cannot be limited under applicable laws.
12.4 Clause 12.2 does not apply to limit your liability:
to pay the Fees;
under the indemnity in clause 7.7; or
for those matters stated in clause 12.3a to 12.3d.
12.5 Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
12.6 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Service.
13.1 Unless terminated under this clause 13 or clause 4.7, these Terms and your right to access and use the Service:
starts on the Start Date; and
continues until a party gives at least 30 days’ notice that these Terms and your access to and use of the Service will terminate on the expiry of that notice.
13.2 Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use the Service if the other party:
breaches any material provision of these Terms and the breach is not:
remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
capable of being remedied; or
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.
13.3 You may terminate these Terms and your right to access and use the Service in accordance with clause 8.5.
13.4 Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.
13.5 On termination of these Terms, you must pay all Fees for the provision of the Service prior to that termination.
13.6 No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.
13.7 Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of these Terms but subject to clause 13.8, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
13.8 At any time prior to one month after the date of termination, you may request:
a copy of any Data stored using the Service, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software; and/or
deletion of the Data stored using the Service, in which case we must use reasonable efforts to promptly delete that Data.
To avoid doubt, we are not required to comply with clause 13.8a to the extent that you have previously requested deletion of the Data.
13.9 Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Service and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have:
undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;
used, or attempted to use, the Service:
for improper purposes; or
in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;
transmitted, inputted or stored any Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
otherwise materially breached these Terms.
14.1 Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.
14.2 No person other than you and us has any right to a benefit under, or to enforce, these Terms.
14.3 For us to waive a right under these Terms, that waiver must be in writing and signed by us.
14.4 Subject to clause 7.4, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
14.5 If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing firstname.lastname@example.org.
14.6 These Terms, and any dispute relating to these Terms or the Service, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms or the Service.
14.7 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 7.7, 9, 10, 12, 13.4 to 13.8 and 14.6, continue in force.
14.8 If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.
14.9 Subject to clauses 2.1 and 8.5, any variation to these Terms must be in writing and signed by both parties.
14.10 These Terms set out everything agreed by the parties relating to the Service, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, 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 14.10.
14.11 You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.