Terms and Conditions
Between: ICert Limited, a New Zealand Company having its registered office in Auckland the "Licensor" And: the Licensee as defined below
"Commencement Date" means the date on which the Licensee accepts this agreement;
"Fee" means the subscription fee payable by the Licensee for the Material as set out on the Website or specified in ICert's invoice;
"Intellectual Property" means copyright, patents, designs, trademarks, trade names, goodwill rights, trade secrets, confidential information and any other intellectual proprietary right or form of intellectual property;
"Licensee" means the person or organisation named in the online account activation process who has accepted or authorised the acceptance of this Agreement and is also referred to in this Agreement as "you and "Your";
"Licensor" means ICert Limited and its successors and is also referred to in this agreement as "ICert" "We", "Us" and "Our";
"Material" means an online fillable and electronically signable form for Certificate of Compliance and Electrical Safety Certificate and includes any Material associated with any revision;
"Revisions" means modifications to the Material in the nature of improvements made to correct program faults or other defects, or to effect enhancements to the functionality of the Material;
"Parties" means the Licensor and the Licensee; and
"website" means www.icert.co.nz
- By clicking the "Accept" or "Agree" or "Create New Account" Button you acknowledge that:
- You have read and understood the terms and conditions of this Agreement;
- You have obtained or had the opportunity to obtain the advice of legal, financial, Electric and professional advisors with respect of this Agreement and its legal effects and implications.
- You have agreed to be unconditionally bound by the terms and conditions of this agreement.
GRANT OF LICENCE
- Subject to your full compliance with the terms and conditions of this agreement, ICert grants you a personal, non-exclusive and non-assignable Licence to use the Material at the website.
- On the Commencement Date, ICert will create an account, with your user name and password, which will be activated by you clicking the "Accept" or "Agree" button available on the Website.
- You are responsible for configuring your information technology, computer programs and platform so as to access the Website. You must use your own virus protection program.
- ICert will use its reasonable endeavours to;
- Ensure that your data is secured and backed-up on Icert' central server. In the event of system failure or data corruption ICert will endeavour to restore your data from the last good backup. However, ICert does not guarantee that there will be no loss of data. It is your responsibility to maintain an up-to-date copy of your data in your premises at all times.
- Ensure that your access to, and the availability of the Material at, the Website is not interrupted by any event within ICert's Control. In the event that such interruption occurs, ICert shall use its best efforts to restore access as promptly as possible.
- You shall not use the Material for any purpose other than it is designed for.
- You shall not modify or alter the Material.
- You will take reasonable steps to ensure that no person other than you accesses the Material using your username and password. You further will not permit any person to use your account to access the Material;
- If you become aware of unauthorised access to your account, you must notify ICert immediately and co-operate in identifying and prosecuting who are responsible for such unauthorised access.
CHARGES AND PAYMENT
- You must pay the fees as specified from time to time in the Website and our invoice.
- All sums payable by you under this Agreement shall be made in full without set-off or counterclaim.
- If you fail to pay any amount due under this Agreement on the due date, ICert may without prejudice to its other rights require you to pay interest on the amount due from the due date until the date of payment, at a rate equal to 2% above the current overdraft rate that the Icert has with its principal banker.
PROTECTION OF INTELLECTUAL PROPERTY
- You acknowledge that ICert is the sole owner of all rights (including Intellectual Property rights) in the Material.
- You must not, nor may you permit any other person to:
- copy, alter, modify, reproduce, reverse assemble, reverse compile or enhance the Material; or
- you agree to indemnify ICert against all costs, expenses and damages (including the actual legal costs) that ICert may incur in connection with:
- Your breach of any of the terms of this agreement;
- Your failure to pay the invoiced fees;
- Your unlawful or unintended use of the website , Material, content or information included on the Website; or
- Any claim by third party arising out of or in connection with your use of the Website or the Material.
Term and TERMINATION
- The term of the Agreement is to be one month, automatically renewable each month upon the receipt of the Fee by Icert.
- Termination by Notice: Either party can terminate this agreement by providing one month notice to the other party.
- Termination for Cause: ICert may terminate your Licence immediately by notice in writing upon:
- Your breach any of the terms of this Agreement;
- Your failure to pay the Fee; and
- the commencement of your liquidation or insolvency or upon the appointment of a receiver, statutory manager or trustee of you property, or upon an assignment for the benefit of your creditors, or upon execution being levied against you or upon you compounding with you creditors or being unable to pay your debts in the ordinary course of business.
- Where any dispute arises between the parties concerning this Agreement, or the circumstances, representations, or conduct giving rise to the Agreement, no party may commence any court or arbitration proceedings relating to the dispute unless that party has complied with the procedures set out in this clause
- The party initiating the dispute ("the first party") must provide written notice of the dispute to the other party ("the other party") and nominate in that notice the first party's representative for the negotiations. The other party must within seven days of receipt of the notice give written notice to the first party naming its representative for the negotiations. Each representative nominated shall have authority to settle or resolve the dispute.
- If the parties are unable to resolve the dispute by discussion and negotiation within 14 days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to mediation.
- The mediation must be conducted in terms of the LEADR New Zealand Inc Standard Mediation Agreement. The mediation must be conducted by a mediator at a fee agreed by the parties. Failing agreement between the parties, the mediator shall be selected and his/her fee determined by the Chair for the time being of LEADR New Zealand Inc.
- All warranties, terms and conditions (including, without limitation, warranties and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise, are excluded to the extent permitted by law.
- ICert does not warrant nor represent that the Material or any information available on the Website will be uninterrupted or free of error, or complete, correct or up-to-date.
LIMITATION OF LIABILITY
- ICert shall not have any liability or responsibility to you for any loss, damage or injury whether arising in contract, tort, equity or otherwise which does not flow directly or naturally (ie in the ordinary course of things) from a breach of this Agreement including, in each case consequential loss of business or profits or other loss.
- In the event that ICert's liability cannot be excluded by law, ICert's maximum aggregated liability and your sole and only remedy shall be limited to the invoiced fee paid by you in the preceding calendar month.
- No action arising out of or in connection with this Agreement may be brought by you more than one month after the cause of action arose.
Maintenance and suspension
- ICert may suspend, disconnect or discontinue the Service in whole or in part at any time without notice and without compensation if in our reasonable opinion:
- The network or equipment fails and requires maintenance;
- There has been, unauthorised, unlawful or fraudulent use of service;
- You do not comply with any of the terms of this agreement; or
- It is necessary to comply with a judicial or administrative order or request.
- You shall not assign your rights under this Agreement without ICert's prior written consent.
- This Agreement constitutes the complete and exclusive statement of the agreement between the parties, superseding all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.
- The parties must each do all such further acts (and sign any documents) as may be necessary or desirable for effecting the transactions contemplated by this Agreement.
- No exercise or failure to exercise or delay in exercising any right or remedy by a party shall constitute a waiver by that party of that or any other right or remedy available to it.
- The agreements, obligations and warranties contained in this Agreement shall not merge on completion of the transactions contemplated by it, but shall remain in full force until satisfied.
- If any provision of this Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this Agreement and its application shall not be affected and shall remain enforceable to the greatest extent permitted by law
- This Agreement shall be governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.