"Authorised Users" means the users given authority by the Customer to access the Services in accordance with the Licence and subject to the maximum number of users agreed between Dacreed and the Customer.
“Billing Date” or “Billing Dates” means the date/s on which Dacreed issues invoices for the Licence Fee.
"Consumer Law" means the Consumer Guarantees Act 1993, the Fair Trading Act 1986, and any other legislation or regulation purporting to protect non-business consumers in any jurisdiction.
"Customer" means a person that purchases the Licence and pays the Licence Fee, including any Authorised Users.
“Dacreed” is the trading name of Dacreed Holdings Limited Partnership and any subsidiaries.
"Customer IP" means, in relation to any content, materials or information submitted by the Licensee (or authorised representative) to the Website, and any intangible property that is protected by Intellectual Property Rights in favour of the Licensee, excluding any Data.
"Dacreed IP" means in relation to the Services, any intangible property created or owned by Dacreed or protected by Intellectual Property Rights in favour of Dacreed including, but not limited to, any code, websites, systems, servers, interfaces, documentation, content, materials, and information.
"Data" means any personal information submitted to Dacreed by the Licensee, whether through the Website or otherwise.
“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 a limited, non-exclusive, revocable licence for Authorised Users (up to the maximum permitted by Dacreed) to access and use the Services for the duration of the Term.
“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.
“Services” means the online systems and content made available through the Website.
"Subscription Fee" means any subscription fee agreed between Dacreed and the Customer.
"Support Fee" means any support fee agreed between Dacreed and the Customer.
"Term" means each 12 month period for which the Licence is granted and includes any renewals or extensions of such period.
"User Fee" means the Subscription Fee divided by the number of Authorised Users.
“Website” means the registered domain address at www.dacreed.com.
(a) Subject to clause 2(b), Dacreed grants a Licence to the Customer for the duration of the Term beginning on the Commencement Date.
(b) The Customer shall pay to Dacreed the Subscription Fee in accordance with clause 3.
(c) Subject to clause 3(b), the Customer may increase the number of Authorised Users at any time with such increase effective immediately. In this event, notwithstanding the Commencement Date, the Term shall automatically extend for another recurring Term from the Billing Date immediately following the date on which the Authorised Users is increased.
(d) The Customer may decrease the number of Authorised Users at any time with such decrease effective at the end of the Term.
(e) The Licence will automatically renew at the end of the Term for an additional Term unless the Customer or Dacreed terminates the Licence in accordance with clause 6.
(a) An invoice for the Subscription Fee will be issued in advance by Dacreed on each Billing Date. The first Billing Date falls on the Commencement Date, and recurs on the first date of each Billing Period. An invoice for any Support Fees shall be issued from time to time as applicable.
(b) Where the number of Authorised Users is increased (Upgrade Date), the User Fee will be increased on a pro rata basis and the Subscription Fee updated accordingly on and from the earlier of: (i) the next Billing Date immediately following the Upgrade Date; or (ii) the thirtieth day following the Upgrade Date, in which case Dacreed will issue an interim invoice for the increased marginal cost prior to the next Billing Date.
(c) Where the Customer reduces the number of Authorised Users, the User Fee will be reduced on a pro rata basis and the Subscription Fee updated accordingly on and from the end of the Term.
(d) Dacreed may change the Subscription Fee from time to time and will notify the Customer at least 10 business days in advance of the date on which the change will take effect. For the avoidance of doubt, any change in the Subscription Fee will not take effect until the subsequent Term.
(e) Late payments are subject to a late payment charge of 12% per annum, compounding monthly.
4. Intellectual property
(a) Dacreed exclusively reserves and retains: (i) all Intellectual Property Rights in any Dacreed IP; and (ii) the right to amend, alter, or delete any Customer IP including, but not limited to, where a third party has a copyright claim to the Customer IP (such rights to be exercised in Dacreed’s sole discretion). Dacreed accepts no liability for any loss or damages arising as a result of any action taken under this clause 4(a)(ii).
(b) The Customer retains all Intellectual Property Rights in any Customer IP and Data. To the extent that the Customer amends or alters existing content available on the Website, the Customer shall only hold Intellectual Property Rights in the portion of the content that it has created.
(c) Notwithstanding clause 4(b), the Customer grants Dacreed a non-exclusive, transferable, royalty-free, sub-licensable, worldwide licence to copy, adapt, publish, distribute, disseminate, or otherwise commercially deal with any Customer IP.
(d) Dacreed does not subscribe to any licensing schemes under the Copyright Act 1994 and the Dacreed IP may not be copied under a copyright licence of this nature.
(e) The Customer is responsible for keeping back-up copies of any Customer IP and Data. Dacreed will use all reasonable endeavours to prevent the loss of Customer IP and Data but does not guarantee that the loss of Customer IP and Data will not occur. Dacreed expressly excludes liability for any loss of Customer IP and Data regardless of how the loss has been caused.
(f) The Customer agrees that if any party brings a claim or proceedings against Dacreed related to any Customer IP or Data the Customer 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 Customer is 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 Customer is strictly at the Customer’s risk.
(a) The Customer warrants and acknowledges that:
(i) it will not infringe Dacreed IP;
(ii) it will not use the Services in a way that will infringe, or will be likely to infringe, any Intellectual Property Rights;
(iii) it will access and use the Services on an “as is” basis and at its own risk;
(iv) it provides Authorised Users access to the Services at its own risk and remains solely responsible for any act or omission of any Authorised User as if such act or omission were made by the Customer;
(vi) it is its own responsibility to ensure it has read and understood this Agreement;
(vii) it is solely responsible for determining that the Services meet the Customer’s requirements;
(viii) it remains solely responsible for complying with all relevant laws and regulations;
(ix) it is solely responsible for ensuring that storage and access to, any of its information or data via the Services complies with any laws or regulations;
(x) it is granted the right to access and use the Services strictly on a commercial and trade basis for application to the Customer’s business activities;
(xi) to the maximum extent permitted by law, it contracts out of all provisions of any Consumer Law;
(xii) it will not repackage or redistribute the Services for any purpose whatsoever, other than as permitted under this Agreement or as agreed in writing between the parties;
(xiii) Dacreed gives no representations that the Service will be uninterrupted or error free, including any interference or prevention of the Customer’s access to the Services; and
(xiv) it does not rely on any representations made by Dacreed or any other conduct by Dacreed, whether during negotiations prior to this Agreement being entered into, or at any subsequent time.
(b) Dacreed gives no warranty as to the Services and Dacreed does not warrant that the Services 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.
(a) Dacreed may terminate this Agreement by notice in writing if the Customer is in breach of its obligations under this Agreement and fails to remedy the breach within 10 business days of receiving notice of the breach, such termination to take effect immediately upon notice of termination being issued. In the event that this Agreement is terminated in accordance with this clause 6(a), Dacreed reserves the right to restrict the Customer’s access to the Services.
(b) The Customer may terminate this Agreement by notice at any time with termination to take effect from the end of the Term.
(c) Notwithstanding clause 6(a), the Customer shall remain liable to pay all outstanding fees owing to Dacreed, including payment of the Subscription Fee on each Billing Date until the expiry of the Term and any outstanding Support Fees.
(a) The Customer may not assign or transfer any rights, benefits and obligations under this Agreement to any other person without Dacreed’s prior written consent.
(b) Dacreed may at any time, assign or transfer any of its rights, benefits and obligations under this Agreement. No consent shall be required from the Customer to any such assignment or transfer.
(c) In the event of an assignment in accordance with clause 7(b), the assignee or transferee shall have the same rights against the Customer as if it had been an initial party to this Agreement.
9. Insurance rebate
- To qualify for any rebate on the Customer's insurance premiums through Dacreed's insurance partners, the Customer must have an completion rate of 100% after using the Services (Completion Rate).
- The Customer agrees and consents to Dacreed and/or Delta Insurance Limited accessing the Customer's Completion Rate and sharing it with Dacreed and/or Delta Insurance Limited and/or the Customer's insurance broker for the purposes of determining whether to issue the Customer a rebate on its insurance premiums.
- The rebate may not apply in the following circumstances:
- The Services are not used throughout the year to train new staff;
- Any material insurance claims are made by the Customer during the period of cover;
- Delta Insurance Limited changes its underwriting criteria or there are changes to reinsurance requirements;
- A Completion Rate of 100% is not attained within 6 months of setup or 3 months of the renewal date, whichever is earlier. Extensions may be available on request and shall be determined in Dacreed's sole discretion; or
- The Customer fails to accurately assign "job types" to staff and such failure results in staff failing to complete training modules relevant to their job position and job role.
- Unless the Customer's Completion Rate is 100% prior to the commencement of the Customer's insurance policy, the rebate will be provided as a reduction in the Customer's renewal premium rather than a returned premium on the Customer's current policy period.
(a) Entire agreement: this Agreement supersedes and extinguishes all prior agreements, representations, negotiations, and understandings between Dacreed and the Customer, and constitutes the entire agreement between the parties.
(b) Waiver: No waiver of this Agreement will be effective unless made in writing.
(c) Notices: any notice given by either party may be sent by email to the address set out in the Schedule and will be deemed to have been given on transmission of such email.
(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.
(f) Arbitration: each party agrees that it will make good faith efforts to reach a resolution in the event of any dispute. However, if a resolution to any dispute is not reached within 10 business days of either party giving notice of such dispute to the counterparty, the parties agree that all disputes arising under this Agreement will be finally settled by arbitration at Auckland (NZ) with a single arbitrator under the Rules of the New Zealand Arbitration Act 1996, such decision to be final and binding on the parties. Nothing in this clause 10(f) restricts Dacreed from commencing court proceedings against the Customer at any time.
(g) Governing law: this Agreement is governed by the laws of New Zealand and each party submits to the exclusive jurisdiction of the New Zealand courts.