TERMS AND CONDITIONS

Legal

  1. This Website and the Services are owned and operated by Jonas Software NZ Limited (referred to in these Terms and Conditions as baxus). These Terms and Conditions govern your access and use of the Website and the Services.
  2. By creating an Account and accessing the Services, you agree to be bound by these Terms and Conditions. If you do not accept these Terms and Conditions then you must not create an Account or access or use the Services.
  3. These terms and conditions are accepted by you as an end user of the Services. If you are acting on behalf of a company of other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms and Conditions. If you do not have such authority, you must not create an Account or access the Services.
  4. These Terms and Conditions may change or be updated from time to time and will be effective from when they are posted on the Website or the Service itself. It is your responsibility to access and check these Terms and Conditions whenever you access the Website or the Services. Your continued use of the Services represents your agreement to be bound by the Terms and Conditions as amended from time to time.

Creating an Account

  1. You must be over 18 years old in order to create an Account and you may not create multiple accounts for the same business.
  2. In creating an Account and accessing and utilising the Services, you undertake that:
    • all the information (including personal information) you provide to baxus is (and shall be) true and correct and up to date (including, without limitation, any email addresses and payment information);
    • you will ensure (and shall be responsible for) compliance by all of your users of the Services with these Terms and Conditions; and
    • you will act honestly, professionally and in good faith in respect of your interactions with the Services.
  3. baxus may, in its sole discretion, deny any request to create an Account and/or close your Account at any time (on notice to you).
  4. You may cancel the Services and close your account at any time on notice to baxus.
  5. Upon cancellation of the Services and closure of your Account (by baxus or you), baxus may delete all of your content and data and you may not be able to recover this information. baxus will not be liable for any loss or damage following, or as a result of any closure of your Account and/or cancellation of the Services.

Services – Access and use

  1. Subject to compliance by you with these Terms and Conditions, baxus grants to you and you accept from baxus, a non-exclusive, non-transferable and non-assignable right to access and use the Services for your own internal business purposes only (excluding the commercialisation or exploitation of information technology products or services) and you hereby subscribe for the Services.
  2. You are responsible for all matters associated with your access to the Services and for all third party fees associated with your use of the Services (including, without limitation, applicable internet service provider charges).

Services – Restrictions on your use

  1. You will at all times:
  • in your use of the Services, comply with all applicable laws and regulations and all guidelines, procedures and policies notified by baxus from time to time;
  • ensure that only those users notified to baxus when you created your Account use the Services and that such users comply with all requirements and restrictions in these Terms and Conditions applicable to accessing and using the Services; and
  • keep the content of the Services and all of your log-on information (including email addresses and passwords) secret and secure. You will inform baxus immediately of any known or suspected unauthorised access to and use of the Services.
  1. You will not, at any time:
  • use or copy the Services (in whole or in part) except as expressly provided for in these Terms and Conditions;
  • use the Services for any unlawful purpose or violate any law (including but not limited to any applicable privacy legislation, such as the New Zealand Privacy Act 1993);
  • use the Services in a manner that may damage, disable, overburden or impair either the Services or the networks connected to the Services;
  • licence, assign, resell, share, pledge, rent or transfer any of your rights under these Terms and Conditions in relation to the Services;
  • use a robot, spider, scraper or other unauthorised automated means to access and/or use the Services, or any information contained on the Website or Services or accessed via the Website or Services or otherwise attempt to gain unauthorised access to the Services;
  • reverse assemble, reverse engineer, modify, alter, adapt, disassemble, decompile or amend the Intellectual Property Rights or any of the underlying materials in any way whether directly or indirectly (by allow anyone else to do so) or otherwise attempt to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Services;
  • exploit, sell or generate profit from the Intellectual Property Rights or commercialise, copy or on-sell information, or material obtained from any part of the Services;
  • adopt, reproduce, copy, store, distribute, print, display, perform, publish or create derivative works from, any part of the Services; or
  • access or use the Services if you are a direct competitor of baxus (except with baxus’ prior written consent) or access or use the Services for the purpose of monitoring its availability, performance or functionality or for any other benchmarking or competitive purpose.
  1. baxus uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage and other technology to run the services. If your bandwidth usage significantly exceeds average bandwidth usage, as determined by baxus, baxus reserves the right to limit your access to the Services.

Fees and payment

  1. Your free trial of the Services will begin on the day that your Account is opened and will end after 30 calendar days. After this, details for a valid credit card must be added to your Account, otherwise your Account may be closed.
  2. Following completion of the free trial, your credit card will be charged:
    • the total monthly Access Fee in advance on a monthly basis (together with any notified credit card administration fees).
    • The total monthly SMS Fees for the relevant month, based on your usage of the Services.
  3. If you are not based in New Zealand, Australia, the United Kingdom or the United States of America at the time you created your Account, your payment will be converted into USD at the current exchange rate by your credit card provider. A credit card administration fee is payable to baxus for any credit card payments and will be advised to you before being charged to your credit card.
  4. baxus reserves the right to change the Access Fee at any time. baxus will give you 30 days’ notice of any such change via the Website or the Services.
  5. No refunds will be given for partial months of use or for unused months where your Account is left open or for SMS credits remaining on your account at the time of closure of your Account.
  6. If you upgrade or downgrade the Services you wish to receive, baxus will charge your credit card at the new rate at the start of the next month.

Intellectual Property Rights

  1. baxus (and any person who it licences from, as applicable) owns all Intellectual Property Rights in the Website, the Software and the Services. Except as expressly provided for in these Terms and Conditions, nothing in these Terms and Conditions confers on you any right or interest in, or licence or permit to use, any of the Intellectual property Rights or any other intellectual property rights owned by or proprietary to baxus or any of its third party licensors or suppliers.  You may not assert any ownership or rights in respect of the Intellectual Property Rights.

Content and Data

  1. You acknowledge that baxus is not responsible for, and has no liability in respect of, any Data or how you use the Services. You are solely responsible for all Data (including the contents of your email messages, attachments and stored files, if any) and baxus reserves the right to remove or edit any of your Data from its servers at any time and in its sole discretion (but for the avoidance of doubt, a failure by baxus to do so does not relieve you from responsibility).
  2. You are responsible for ensuring that your Data (and any other attachments, documents or files that your distribute through the Services, if any) do not contain any viruses, trojan horses, worms, time bombs, or similar harmful programming routines.
  3. baxus agrees to take all reasonable steps necessary to protect your Data and agrees that, except as specified in clause 25 below or as otherwise required to provide the Services, it will not, without your prior written agreement, use or disclose your Data to any third party, unless required by law or if, at the time of disclosure, such information is in the public domain. Please refer to baxus’ privacy policy (available on the Website).
  4. In order to provide you with the Services (and improve on them), baxus may also collect certain information about the performance of the Services and your (and your customers’) use of the Services, including any Data you (or your customers) upload or add to the Website or the Services. baxus may make use of such information to track usage and to better understand the use of the Services, improve and revise the Services publish industry statistics and for customer support services or to respond to any legal proceedings.
  5. Although baxus has endeavoured to ensure that the content on the Website and the Services is current, accurate and complete, to the extent permitted by law, baxus does not warrant or guarantee that such content will be current, accurate or complete when you access it.

Upgrades, modifications and new versions

  1. baxus may provide updates to or new versions of the Services (including the Software and the Website) and reserves the right to take down access to the Services (including applicable servers hosting the Software and/or any Data) to conduct maintenance or for any other reason outside baxus’ reasonable control. You agree to comply with baxus’ instructions in relation to any update or new version and baxus will not be held liable for any upgrade to an update or new version of the Services (even if such upgrade, update or new version results in a any loss of content, features or capacity of your Account).
  2. baxus reserves the right to modify or remove parts of the Services at any time. baxus will not be liable to you or to any third party for any loss or damage following, or as a result of modification, removal, suspension or discontinuance of the Services.

No warranties

  1. baxus warrants that it will utilise reasonable efforts to maintain an acceptable performance of this Website. However:
    • baxus does not represent or guarantee that the Services will be continuous, timely, secure or error-free operation or satisfy all of your requirements or expectations, that the results obtained from use of the Services will be accurate or reliable or that any errors in the Services will be corrected; and
    • given the nature of the Internet and access thereto, baxus does not warrant that the Services will be free from infection, viruses or destructive code and shall not be liable to you on any basis for any damage or loss suffered by you as a result of material on the Services infecting or damaging your computer equipment, software and any other electronic device.
  2. The reasonable efforts warranty in clause 29 replaces all other representations, promises or warranties (statutory, express or implied) and all such representations, promises and warranties (save any which may not be lawfully excluded). In the event of a breach of the warranty in clause 29, your sole and exclusive remedy will be performance of the non-conforming Services by baxus.

Limitation of liability

  1. baxus will not be liable to you or to any other person arising directly or indirectly out of or in connection with the Services (or your use thereof), the implementation, maintenance or operation of the Website or the Services, or otherwise in connection with these Terms and Conditions. However, to the extent any such liability or claim cannot be excluded by virtue of law, then all claims by you (or any of your personnel and/or customers), whether in contract, tort (including negligence), breach of statutory duty or otherwise or any other theory of liability shall be limited in aggregate to the total Access Fees paid by you to baxus in the first 3 months from the date on which you create an Account.
  2. Without limiting the generality of clause 31, neither baxus (nor any of baxus’ business associates, including suppliers, advertisers and referrers) will be liable to you or any other person for direct, indirect, special, incidental, consequential, punitive or exemplary damages of any kind whatsoever including any lost data, lost business, lost profits, injury, claim, liability or damage or failure of security resulting in any way from the access or use of the Services (whether foreseeable or not).
  • You will indemnify and hold baxus, its subsidiaries, affiliates, partners, officers, employees and contractors harmless from all liabilities, claims, expenses or demands (including legal fees and costs) due to or arising out of your use or misuse of the Services, any negligence or wilful default, by you, any breach by you of any laws or these Terms and Conditions.

Complaints

  1. Any problems that occur whilst accessing the Services should be notified in writing (including, by email) to support@baxus.com at the earliest opportunity.

General

  1. These Terms and Conditions are governed by the laws of New Zealand. The parties submit to the non exclusive jurisdiction of the Courts of New Zealand in respect of any matter arising out of or in connection with these Terms and Conditions or the Website or the Services.
  2. These Terms and Conditions constitute the entire understanding and agreement between you and baxus and supersede any and all prior oral or written communication on the subject matter contained in them.
  3. If any provision in these Terms and Conditions is held invalid, then such provision (to the extent it is invalid) is deemed severed from these Terms and Conditions and the remainder shall not be affected.

Defined terms

  1. In these Terms and Conditions, unless the context otherwise requires:

Access Fee means the monthly access fee payable in accordance with the fee schedule set out on the Website in order to access the Services.

Account means the account created by you on the Website.

Data means any of the content or data you (or any of your personnel or customers) upload or add to the Website or the Services.

Intellectual Property Rights means all trade marks, domain names, copyright, patents, registered designs, circuit layouts, rights in computer software, databases, content and lists, rights in inventions, know-how, and trade secrets and all other intellectual property, in each case whether registered or unregistered (including applications for the grant of any of the foregoing) and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world, and all rights of action, powers and benefits of the same in respect of the Services, the Website, the Software, any other software developed by us and applied in the Website, and any underlying materials contained on the Website.

Services mean the online management software services made available on and delivered through the Website (including access to and use of the Software and any support services).

SMS Fees means the monthly SMS fees payable in accordance with the fee schedule set out on the Website for your use of the Services.

Software means the online management software (and any related software) owned (or licensed) by baxus and operated through the Website.

Terms and Conditions means these Terms and Conditions.

Website means www.baxus.com and any other website provided by baxus.

You means the account holder and end user of the Services. Your has a corresponding meaning.

Local variation

European Union

If you (or your customers) are in the European Union and your use of the Services requires us to process personal data falling within the scope of the EU General Data Protection Regulation 2016/679, then our Data Processing Addendum (“DPA”) will apply to processing of such personal data and is hereby incorporated by reference.

Last updated 24 May 2018.