Legal

Dacreed Terms of Use: Licensees, Users and Visitors

1. Introduction

Welcome to Dacreed, an online compliance system designed to help businesses understand and comply with their legal obligations.

Please read these Terms of Use and the Dacreed Privacy Policy and other terms referenced herein carefully. The Terms of Use are binding on any access to and/or use of the Service and apply to the Licensee from the time that it agrees to purchase a Licence and to the User from the time that the User accesses the Service. The Visitor agrees to access the Website in accordance with the Terms of Use at the time of access.

The Terms of Use and the Dacreed Privacy Policy are subject to change at any time and Dacreed will make every effort to communicate these changes to the Licensee and the User via email or notification via the Website. It is the Licensee’s and the User’s obligation to ensure that they have read and understood the most recent Terms of Use and Dacreed Privacy Policy available on the Website.

2. Definitions

“Agreement” means these Terms of Use and the Dacreed Privacy Policy.

“Assessment” or “Assessments” means the content associated with the Dacreed learning management system including questions, guidance, answers and commentary.

“Billing Date” or “Billing Dates” means the date/s on which Dacreed issues invoices for the Licence Fee.

“Dacreed” is the trading name of Dacreed Holdings LP and all its subsidiaries.

“Data” means any data the Licensee or the User submit into the Service or any data submitted into the Service with the Licensee’s or the User’s authority.

“Intellectual Property Rights” means any patent, trademark, 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.

“Licence” means the right to make use of the Service in consideration of the Licence Fee.

“Licence Fee” means the fee payable to Dacreed in accordance with the Dacreed Pricing Schedule (Licensees) available on the Website.

“Licence Term” means the 12-month period for which the Licence is granted and includes any renewals or extensions of that 12-month period.

“Licensee” or “Licensees” means a person that purchases the Licence and pays the Licence Fee.

“Partner of Dacreed” means a professional advisor or other person that purchases the Licence and has the right to authorise Users in its own or other organisations and is referred to on the Website as a Partner.

“Service” means the online systems and content made available through the Website.

“User” or “Users” means a person that registers to use the Service and includes the Licensee.

“Visitor” means a person that accesses the Website.

“Website” means www.dacreed.com.

3. Licence

(a) The Licence Term commences on the date on which Dacreed receives payment of the invoice issued on the first Billing Date.

(b) The Licence grants the Licensee a limited, non-exclusive, revocable licence to make use of the Service and to authorise Users to make use of the Service during the Licence Term in consideration of the Licence Fee, the number of Users and the amount of the Licence Fee to be in accordance with the Dacreed Pricing Schedule (Licensees) available on the Website.

(c) The number of Users may be increased at any time by the Licensee, the increase to take effect immediately. In this event, notwithstanding its date of commencement, the Licence Term is automatically extended for 12 months from the next Billing Date after the date on which the number of Users is increased.

(d) The number of Users may be decreased at any time by the Licensee, the decrease to take effect at the end of the Licence Term.

(e) The Licence will automatically be renewed at the end of the Licence Term unless and until terminated by the Licensee or by Dacreed in accordance with clause 11.

4. Payment

(a) Invoices for the Licence Fee will be issued monthly in advance by Dacreed on the Billing Date. The first Billing Date is the day on which the Licensee purchases the Licence; the second Billing Date is one month after the date on which Dacreed receives payment of the invoice issued on the first Billing Date, and subsequent Billing Dates are monthly thereafter.

(b) Where the number of Users is increased between Billing Dates, the invoices will reflect the increased Licence Fee on the next and subsequent Billing Dates.

(c) Where the number of Users is decreased, the Licence Fee will reflect the decreased cost at the end of the Licence Term.

(d) Dacreed may change the amount of the Licence Fee from time to time and will notify the Licensee 12 months in advance of the date on which the change will take effect. The Licensee accepts the new Licence Fee by continuing to use the Service after the new Licence Fee takes effect. The Licensee has the right to reject the new Licence Fee by terminating the Licence in accordance with clause 11 prior to the new Licence Fee coming into effect.

(e) Late payments are subject to a charge of 12% per annum, compounding monthly.

5. Use of Website

(a) The Licensee and the User may access and use the Service. The Licensee and User must not repackage or redistribute the Service for any commercial purpose, other than as expressly authorised under this Agreement. Users who wish to authorise the use of the Service to third parties (including clients) must register as a Partner of Dacreed and are subject to the Dacreed Terms of Use: Partners.

(a) The Visitor may visit and use the Website in accordance with the terms of this Agreement.

(b) These rights are non-exclusive, non-transferable and subject to this Agreement.

6. Intellectual Property

(a) Dacreed reserves all Intellectual Property Rights in the Service, the Website and any documentation, server or interface relating to the Service or the Website. All Intellectual Property Rights owned by Dacreed remain the intellectual property of Dacreed. Any content in the Service created and/or amended by Dacreed and any Data amended by Dacreed is the intellectual property of Dacreed.

(b) Dacreed does not subscribe to any licensing schemes under the Copyright Act 1994 and the content in the Service may not be copied under a copyright licence of this nature.

(c) The Licensee and/or the User are responsible for keeping up-to-date copies of the Data. Dacreed will use all reasonable endeavours to prevent the loss of Data but does not guarantee that the loss of Data will not occur. Dacreed expressly excludes liability for any loss of Data regardless of how the loss has been caused.

(d) Notwithstanding clause 6(c), Dacreed reserves the right to amend the Data at its sole discretion. Any Data amended by Dacreed may be licensed by Dacreed to third parties.

(e) The Licensee and User acknowledge that if they elect to create Assessments on the Website, the content must either be general in nature and in the public domain, or deemed to be “original work” under the Copyright Act 1994. Where the Assessment created by the Licensee or User is “original work”, the Licensee and User hereby provide to Dacreed a worldwide royalty-free non-exclusive licence to copy, adapt, publish, distribute, disseminate or otherwise commercially deal with the Assessment in any way that Dacreed deems appropriate.

(f) In the unlikely event that a third party has a valid copyright claim to an Assessment created on the Website by the Licensee or User, Dacreed will notify the Licensee and/or User accordingly. Dacreed reserves the right to remove the Assessment from the Website. The Licensee and User agree that if any party brings a claim against Dacreed related to the intellectual property in an Assessment, the Licensee and/or the User responsible for creating the Assessment will indemnify and hold Dacreed harmless from and against all damages, losses and expenses of any kind (including reasonable legal fees and costs) arising out of any such claim.

(g) The Licensee and User are responsible for complying with any usage requirements on third-party websites that Dacreed provides links to. A link to a third-party website is not an endorsement of that website by Dacreed, and any use of that website by the Licensee and/or User is strictly at the Licensee’s and/or User’s risk.

7. Licensee and User Warranties and Acknowledgements

The Licensee and the User warrant and acknowledge that:

(a) they will not infringe Dacreed’s or any other person’s Intellectual Property Rights;

(b) they will access and use the Service on an “as is” basis and at the Licensee’s and User’s own risk respectively;

(c) they are solely responsible for determining that the Service meets, and is suitable for, the Licensee’s and User’s requirements respectively;

(d) they remain solely responsible for complying with all relevant laws and regulations and they are solely responsible for ensuring that the storage of, and access to, any Data via the Service complies with any laws or regulations;

(e) they are granted the right to access and use the Service for the purposes of their organisation carrying on activities as a business or not-for-profit organisation and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction do not apply to the supply of the Service, the Website or this Agreement;

(f) Dacreed does not guarantee that the Service will be uninterrupted or error free. The operation of the Service may be unpredictable and Dacreed is not responsible for any interference or prevention of the Licensee’s or User’s access to the Service; and

(g) the Service is not intended to take the place of professional or specialist advice and the use of the Service and all content howsoever and whenever supplied does not constitute legal advice. If the Licensee or User require legal advice, they must seek professional legal advice.

8. Visitor Warranties and Acknowledgements

The Visitor warrants and acknowledges that it:

(a) will not infringe Dacreed’s Intellectual Property Rights; and

(b) will access and use the Website on an “as is” basis and at its own risk.

9. No Warranties

Dacreed gives no warranty about the Service and Dacreed does not warrant that the Service will satisfy any particular requirements nor that it will be suitable for any particular purpose. All implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.

10. Limitation of Liability

(a) To the fullest extent permitted by law, in no event will Dacreed, its officers, shareholders, employees, agents, directors, subsidiaries, affiliates, successors, assigns, suppliers or licensors be liable for any special, indirect, incidental, punitive, exemplary or consequential damages, or any loss of use, data, business or profits (whether direct or indirect) in all cases arising out of or in connection with either, the use or the inability to use the Service (including but not restricted to outages and/or remedial work), or this Agreement.

(b) If, notwithstanding clause 10(a), Dacreed should have any liability to the Licensee and/or the User for any form of loss or damage, then to the maximum extent permitted by law, Dacreed’s maximum aggregate liability to the Licensee and/or the User will not exceed the amount paid by the Licensee for the Licence Fee during the prior 12 months in question.

11. Termination

(a) Dacreed may terminate this Agreement by notice in writing if the Licensee or the User have failed to perform or are in breach of any of their obligations under the Agreement and fail to remedy the breach within 28 days of receiving written notice of the breach, termination to take effect immediately upon notice of termination being issued.

(b) The Licensee may terminate this agreement by notice in writing to enquiries@dacreed.com, termination to take effect from the end of the Licence Term.

(c) On termination of this Agreement, the Licensee must pay all outstanding Licence Fees due and payable to Dacreed.

12. Privacy Policy

Access to, and use of, the Website and Service is subject to the Dacreed Privacy Policy.

13. General

(a) Entire Agreement: This Agreement, together with the Dacreed Pricing Schedule (Licensees), the Dacreed Privacy Policy and the terms of any other documents given to the Licensee or the User or that the Licensee or the User has access to in connection with the Service, supersede and extinguish all prior agreements, representations and understandings, and constitute the entire agreement between Dacreed and the Licensee and the User relating to the Service or in connection with any matter governed by this Agreement.

(b) Waiver: No waiver of this Agreement will be effective unless made in writing.

(c) No Assignment: Neither the Licensee nor the User may assign or transfer any rights under this Agreement to any other person without Dacreed’s prior written consent.

(d) Notices: Any notice given under this Agreement by either party to the other must be in writing and sent by email and will be deemed to have been given on transmission. Notices to Dacreed must be sent in writing by email to enquiries@dacreed.com. Any notices to the Licensee or the User will be given to the address provided on activation of the Service.

(e) Third Parties: A person who is not a party to this Agreement has no right to benefit under or to enforce any of the terms of this Agreement.

14. Governing Law and Arbitration

(a) This Agreement is governed by the laws of New Zealand and any person who is a party to this Agreement submits to the exclusive jurisdiction of the New Zealand courts.

(b) Subject to (d) below, the parties agree that they will make a good faith effort to reach an amicable resolution in the event of a dispute concerning this Agreement. However, if such an amicable resolution is not reached within 10 business days of either party giving notice to the other of the relevant dispute, the parties agree that all disputes arising in connection with the Agreement will be finally settled by arbitration with, by agreement, a single arbitrator under the Rules of the New Zealand Arbitration Act 1996. In the event that the parties cannot agree on a single arbitrator, an arbitrator will be chosen by the President of the Arbitrators’ and Mediators’ Institute of New Zealand Inc. The proceedings will take place in Auckland, New Zealand, and the language of arbitration will be English.

(c) The decision of the arbitrator will be final and binding on the parties, and the costs of the arbitrator will (subject to any award by the arbitrator) be borne equally by the parties.

(d) Notwithstanding (b) above, a party may commence court proceedings relating to any dispute arising under this Agreement, at any time where that party seeks urgent interlocutory relief.