TERMS AND CONDITIONS OF SERVICE

PLEASE READ THESE TERMS AND CONDITIONS OF SERVICE CAREFULLY

These Remotely Terms and Conditions of Service (Terms and Conditions) set out the terms and conditions upon which RemotelyHQ Limited, a New Zealand company (7501976), (referred to in these Terms and Conditions aswe or our or us) makes available the Service (as defined below).

These Terms and Conditions prevail over any additional or inconsistent terms and conditions that may be specified by any subscribing user or organisation, and no variation to these Terms and Conditions will be binding on us, unless specifically accepted by us in writing.

However, if we have agreed a separate enterprise licence agreement with the Customer, then these Terms and Conditions will be subject to the terms and conditions of that enterprise licence agreement.

If you do not agree to these Terms and Conditions, you must not click “I have read and accept the Remotely Terms and Conditions of Service” when you first seek to subscribe to the Service either as a Customer or as an Authorised User, and you must not use the Service.

1.
WHO DO THESE TERMS AND CONDITIONS APPLY TO?
1.1
These Terms and Conditions apply to both Customers and Authorised Users. All references in these Terms and Conditions to you or your are to the applicable Customer or Authorised User, or to both – depending on the context.
1.2

Customers:

  1. You are a Customer if you have purchased a Customer subscription from us to use the Service. This includes if you have taken a Customer subscription from us under a free trial.
  2. If you are an Authorised User, the Customer may at any time cancel or amend your Authorised User subscription, or change the way your workspace has been set up. The Customer is responsible for administering all Authorised User subscriptions for your workspace.
  3. In some cases the Customer will also be an Authorised User, for example where the Customer is an individual.
  4. If you are an Authorised User, you are responsible for complying with the applicable provisions of these Terms and Conditions.
  5. If you are an Authorised User and the Customer subscription is terminated for any reason, your Authorised User subscription will also terminate.
  6. If you are a Customer, you are responsible to us for all acts or omissions of your Authorised Users when they access or use the Service.
1.3

Authorised Users:

  1. You are an Authorised User if you have used the Service to set up a workspace on behalf of a Customer, or if you have been invited to use the Service by an Authorised User who has set up a workspace.
  2. If you are an Authorised User, the Customer may at any time cancel or amend your Authorised User subscription, or change the way your workspace has been set up. The Customer is responsible for administering all Authorised User subscriptions for your workspace.
  3. In some cases the Customer will also be an Authorised User, for example where the Customer is an individual.
  4. If you are an Authorised User, you are responsible for complying with the applicable provisions of these Terms and Conditions.
  5. If you are an Authorised User and the Customer subscription is terminated for any reason, your Authorised User subscription will also terminate.
2.
Definitions
2.1

For the purposes of these Terms and Conditions, the following terms have the following meanings:

Content means the information and content made available via the Service;

Fees means the fees payable by the Customer for the provision of the Service;

Intellectual Property Rights means all industrial and intellectual property rights (including applications for such rights) whether conferred by statute, at common law or in equity, including, but not limited to all copyrights and similar rights that may subsist in works or other subject matter, rights in relation to inventions (including all patents and patent applications), rights in relation to trade secrets and confidential information, rights in relation to designs (whether or not registrable), rights in relation to registered and unregistered trademarks and business names, rights in relation to circuit layouts, and other rights as defined by Article 2 of the Convention of July 1967 establishing the World Intellectual Property Organisation as may exist anywhere in the world;

Service means the Remotely subscription service provided by us (as may be modified, enhanced, developed or improved from time to time) and accessible for download via www.[remotelyhq.com] or such other website as we may determine from time to time; and

User Content means data, documents or other content that is accessed, used, shared or created via the Service and that is specific to the Customer or any Authorised User. It excludes data, documents or other content that we have generated.

3.
LICENCE TO USE the service
3.1

We grant to you a licence to access and use the Service as follows:

  1. if you are the Customer, we grant to you a licence to access and use the Service to the extent necessary to create workspaces, to administer your Customer account, and to assign and administer Authorised Users roles and settings; and
  2. if you are an Authorised User, we grant to you a licence to access and use the Service for the Customer’s internal business or operational purposes only.
3.2

The licences in clause 3.1 are non-exclusive, non-transferable and non-sublicensable.

3.3

Each Customer subscription will enable a specific number of Authorised Users to access and use the Service. The Customer may change the number of Authorised Users using the functionality available to the Customer via the Service, subject to payment of the applicable Fees (if any).

3.4

The functionality and features of the Service may impose restrictions on what particular types of Authorised Users may do, and what information they may access, when they use the Service. Some functionality and features can be controlled by the Customer, or by particular Authorised Users who have been assigned administrative roles by the Customer.

3.5

The Customer will be responsible to us for all acts or omissions of its Authorised Users when they access or use the Service, as if they were the acts or omissions of the Customer. The Customer will also be responsible and liable to us for any breach by an Authorised User of any obligation or warranty under these Terms and Conditions. This clause 3.5 does not limit the liability of any Authorised User to us under these Terms and Conditions.

4.
Accessing The Service
4.1

To subscribe to the Service, whether as a Customer or as an Authorised User, you must be at least 18 years old, or have permission from your caregiver or guardian to subscribe to the Service.

4.2

We may refuse to allow any person to subscribe to be a Customer or Authorised User, and we are not obliged to give a reason for any such refusal.

4.3

Authorised Users will not be able to access or use the Service if the Customer does not maintain a subscription to the Service with us and does not pay the applicable Fees.

4.4

You are responsible for keeping your login information secret and secure. This includes your Customer or Authorised User account name and password issued to you. You must not permit any other person to use this login information. You must immediately notify us of any unauthorised use of your login information. In the event of an unauthorised use we may take such actions as we deem reasonably necessary to maintain or enhance the security of the Service. This may include temporarily suspending the Customer’s subscription or any Authorised User’s access to the Service, or resetting any or all Customer or Authorised User passwords.

4.5

You are responsible for making sure that the details you submit to us when you first subscribe to the Service (whether as a Customer or an Authorised User) are kept up to date and are accurate.

4.6

The Customer is responsible for administering its Authorised Users, including which Authorised Users have been assigned which roles. It is the Customer’s responsibility to tell us if it wishes to cancel any Authorised User’s subscription, or if it wishes to allocate an Authorised User’s subscription to a different person – for example, due to staffing changes in the Customer’s organisation.

4.7

We are not responsible for any loss, damage, cost or expense arising as a result of any failure by a Customer or Authorised User to keep its details up to date, or as a result of any inaccurate information provided to us by the Customer or its Authorised Users.

4.8

To use the Service, you will need to download our software on each device you wish to use and access the Service from. The hardware, software, operating systems and networks on these devices will need to meet any minimum specifications that may be notified by us to the Customer or Authorised Users from time to time. Please note that these minimum specifications may change over time as we make further changes and improvements to the Service, and it is your responsibility to ensure that your hardware, software, operating systems and networks maintain compatibility with the Service.

5.
Prohibition On Use
5.1

You must not do any of the following things:

  1. use the Service for the transmission of illegal or offensive material, or in any fraudulent or unlawful manner;
  2. use the Service for the transmission of material that contains software viruses or any other disabling or damaging programs;
  3. use the Service in any way that would violate any Intellectual Property Rights of any third party;
  4. damage, disable, interfere with or harm the Service, or any network or system underlying or connected to the Service, in any way whatsoever;
  5. copy or download any software comprising the Service, except via the download or copying functionality and features of the Service (for example during the process of your subscribing as a Customer or Authorised User, or where we make updates, bug fixes or new versions of that software available to you);
  6. modify, adapt, translate, reverse engineer or decompile any part of the Service, or any software comprising or underlying the Service, or in any manner attempt to derive the source code of any such software;
  7. use any robot, spider, site search/retrieval application, or other device or technological process to retrieve or index any portion of the Service, except as expressly authorised by us in writing; or
  8. encourage, assist or direct any other person to do any of the things set out in paragraphs (a) to (g) above.

If you do any of these things, you will be responsible to us for any losses, damages, costs or expenses incurred or suffered by us as a result.

5.2

While we may from time to time review the use of the Service by Authorised Users, we are not responsible for the conduct of Authorised Users or the way they use the Service, or for the User Content they access, use or share via the Service.

6.
User Content
6.1

Despite any other provision of these Terms and Conditions:

  1. we do not claim any rights of ownership over any User Content uploaded, accessed, shared or created using the Service; and
  2. we do not impose any restrictions on how Authorised Users may use, copy or otherwise exploit User Content in any way that they may see fit.
6.2

You grant to us a licence to use, access, copy, store, distribute and modify the User Content you upload, access, share or create using the Service, solely to the extent necessary to enable us to operate the Service for the benefit of the applicable Customer and its Authorised Users. This licence will be non-exclusive, sub-licensable, transferable, worldwide, royalty free and perpetual.

6.3

If you upload, access, share or create any User Content using the Service, then you warrant and represent to us that you have the full authority to do so from the owner of any Intellectual Property Rights in or to that User Content.

6.4

You agree to defend, indemnify and hold harmless us and our service providers, and the subsidiaries, affiliates, directors, officers, employees and agents of us and our service providers against any and all claims, liabilities, losses, damages, costs and expenses that may arise as a result of any claim by any third party in connection with your uploading, accessing, sharing or creating any User Content using the Service.

6.5

If we believe that any User Content may violate any third party’s rights or otherwise breach these Terms and Conditions, we will usually require the relevant Customer or Authorised User to take down that User Content (but without limiting our other rights or remedies under these Terms and Conditions). However, we also reserve the right to immediately take down any such User Content, with or without notifying the Customer or Authorised User.

7.
Our Rights In The Service and Content
7.1

You acknowledge that:

  1. the Service is of significant commercial value to us and our licensors;
  2. legal and beneficial ownership of:

    1. the Service;
    2. the Content;
    3. all Intellectual Property Rights in or to the Service or the Content,

    will vest with us or our third-party licensors; and

  3. except as expressly stated in these Terms and Conditions, no right or licence is granted to the Customer or any Authorised User in relation to the Service or any Content.
7.2

You may not do any of the following:

  1. download, print or copy any of the Content from the Service, except to the extent we have included links to that Content or other functionality on the Service specifically for the purpose of enabling you to print or download that Content;
  2. compile or extract the Content for the purpose of making such information available to others (whether as a directory or otherwise) with a view to a profit or for a fee or other consideration; or
  3. use any proprietary trademark of us or our licensors in a manner that is reasonably considered by us or our licensors to be a misuse or appropriation of that trade mark.
8.
Service Availability
8.1

We will use reasonable endeavours to keep the Service operational 24 hours a day, seven days a week. However, no warranty or representation is given that the Service will be uninterrupted or error-free.

8.2

Any bugs, errors, defects or unexplained outages within the Service that you become aware of should be reported to us by email to our dedicated helpdesk. No warranty or representation is given by us that any bugs, errors, defects or unexplained outages within the Service will be responded to or resolved within any particular time period, or that any resolution to a particular issue will be possible or practical from a technical or business administrative perspective.

8.3

You acknowledge that:

  1. the operation and availability of the systems and networks used by you to access the Service, such as computer systems and the Internet, may be unpredictable and prevent use of or access to the Service; and
  2. there may be occasions where some or all of the Service is unavailable, for example to permit maintenance, or due to unexpected or uncontrollable outages. We will use reasonable endeavours to notify users of the Service in advance of any significant planned service outages.
8.4

You must not use the Service for any purpose that requires uninterrupted availability of the Service and where interruption of the Service may cause death, personal injury, physical injury or property damage.

9.
Fees and Payment Terms
9.1

In consideration for the grant of licences under clause 3.1 and the provision of the Service to the Customer and its Authorised Users, the Customer agrees to pay the Fees.

9.2

We will notify the Customer of the applicable Fees for each month of the Customer’s subscription when the Customer first subscribes to the Service. We will also notify the Customer of any changes to these Fees (including details of when any such changes take effect) when the Customer changes its subscription (for example, when the Customer adds additional Authorised Users or removes Authorised Users).

9.3

We may change the Fees at any time, upon giving the Customer at least 30 days’ prior written notice. Any such change will apply to the Fees payable by the Customer after the expiry of that notice period. The Subscriber may avoid paying the changed Fees by cancelling its Customer subscription prior to the expiry of that notice period.

9.4

All Fees are payable monthly in advance. We will not activate any subscription to the Service until we have confirmed that the applicable Fees have been paid.

9.5

We are not required to refund to the Customer any Fees paid if the Customer reduces its number of Authorised Users during a subscription period, changes its mind about the Service, or decides that it no longer needs the Service.

9.6

All Fees:

  1. are exclusive of all goods and services taxes, sales taxes or value added taxes which, where applicable, will be payable by the Customer in addition; and
  2. will be paid by the Customer in the currency specified by us when the Customer subscribes to the Service.
9.7

We may use third-party payment platform providers to process and collect the Fees due from the Customer, and to process and collect any payments for additional products, services or add-ons that may be made available for purchase via the Service by the Customer or its Authorised Users. Those third-party payment platform providers may have their own policies and procedures that the Customer or its Authorised Users must adhere to. We are not responsible for the acts or omissions of any third-party payment platform provider, as we have no control over their business operations or practices.

10.
Data Security and Privacy
10.1

We take seriously the need to ensure the security of all Authorised User data and communications when they use or access the Service. See Privacy Policy for details of our security practices.

10.2

In the course of providing the Service we may collect, use, disclose, and hold personal information and other data about identifiable individuals, as well as other data about the Customer and its Authorised Users and their business affairs, employees and customers. This information will be used, disclosed and held by us in accordance with our Privacy Policy .

10.3

You acknowledge that you have read our Privacy Policy and accept its terms and conditions. You acknowledge that our Privacy Policy may be amended or reviewed from time to time and that your continued use of the Service after notification of such amendments or revisions will constitute acceptance of those amendments or revisions.

10.4

If you provide us with any personal information about any third party, then you warrant to us that you have obtained all necessary consents and authorisations from that third party to enable us to collect, use, disclose and hold such personal information in accordance with our Privacy Policy.

11.
Indemnity, Warranties and Liability
11.1

You agree to defend, indemnify and hold harmless us and our service providers, and the subsidiaries, affiliates, directors, officers, employees and agents of us and our service providers against any and all claims, liabilities, losses, damages, costs and expenses that may arise as a result of:

  1. any breach by you (or if you are a Customer, by any of your Authorised Users) of these Terms and Conditions; or
  2. any damage or injury to persons or property arising from the misuse of the Service by you (or if you are a Customer, by any of your Authorised Users).
11.2
  1. we are entitled to provide the Service subject to these Terms and Conditions; and
  2. to the best of our knowledge, the use and accessing of the Service by the Customer and its Authorised Users will not infringe the Intellectual Property Rights of any third party, provided that no such warranty or representation is given to the extent that any such infringement arises as a result of User Content or a breach of these Terms and Conditions by the Customer or any of its Authorised Users.
11.3

YOU ACKNOWLEDGE THAT:

  1. THE SERVICE, AND ANY UNDERLYING SOFTWARE COMPRISING THE SERVICE, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS;
  2. WE ARE NOT RESPONSIBLE FOR ANY LOSS OR CORRUPTION OF ANY USER CONTENT OR OTHER DATA OR INFORMATION CONTAINED WITHIN OR CREATED USING THE SERVICE. YOU ARE RESPONSIBLE FOR ENSURING YOUR OWN BACKUP OF ANY SUCH USER CONTENT OR OTHER DATA OR INFORMATION;
  3. IN AGREEING TO THESE TERMS AND CONDITIONS, YOU DO NOT RELY ON ANY REPRESENTATION, WARRANTY, TERM OR CONDITION THAT IS NOT EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS; AND
  4. ALL CONDITIONS, WARRANTIES OR OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW ARE EXCLUDED FROM THESE TERMS AND CONDITIONS, TO THE FULLEST EXTENT PERMITTED BY LAW.
11.4

WITHOUT LIMITING THE SCOPE OF CLAUSE 11.3 WE DO NOT GIVE ANY WARRANTY, REPRESENTATION OR UNDERTAKING:

  1. ABOUT THE EFFICACY OR USEFULNESS OF THE SERVICE, OR ABOUT ANY FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY;
  2. THAT THE SERVICE WILL BE FREE FROM BUGS, DEFECTS, ERRORS OR OUTAGES; OR
  3. THAT ANY CONTENT GENERATED OR ACCESSIBLE VIA THE SERVICE WILL BE ACCURATE OR COMPLETE.
11.5

WITHOUT LIMITING CLAUSES 11.3 OR 11.4, OUR MAXIMUM LIABILITY TO THE CUSTOMER AND ITS AUTHORISED USERS (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR IN ANY OTHER WAY) ARISING OUT OF ANY AND ALL CLAIMS UNDER THESE TERMS AND CONDITIONS OR RELATING TO THE SERVICE, WILL NOT IN ANY CIRCUMSTANCES EXCEED IN AGGREGATE THE TOTAL FEES PAYABLE BY THE CUSTOMER FOR THE MONTH IN WHICH SUCH LIABILITY FIRST AROSE.

11.6

IN NO EVENT WILL WE BE LIABLE (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR IN ANY OTHER WAY) TO THE CUSTOMER OR ANY AUTHORISED USER FOR:

  1. LOSS OF REVENUE OR PROFIT, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODWILL OR OPPORTUNITY, LOSS OF PRODUCTION, LOSS OR CORRUPTION OF DATA OR WASTED MANAGEMENT OR STAFF TIME; OR
  2. LOSS, DAMAGE, COST OR EXPENSE OF ANY KIND WHATSOEVER THAT IS INDIRECT, CONSEQUENTIAL, OR OF A SPECIAL NATURE,

ARISING DIRECTLY OR INDIRECTLY FROM THE SERVICE OR THESE TERMS AND CONDITIONS, EVEN IF WE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGE, COST OR EXPENSE, AND EVEN IF SUCH LOSS, DAMAGE, COST OR EXPENSE WAS REASONABLY FORESEEABLE BY US.

11.7

Where the Customer has acquired the Service in New Zealand for the purposes of its business, then for the purposes of section 5D of the Fair Trading Act 1986 (New Zealand) (FTA) and section 43 of the Consumer Guarantees Act 1993 (New Zealand) (CGA), the Customer and we acknowledge and agree that:

  1. the Service is being provided and acquired in trade; and
  2. to the extent permitted by law, in respect of all matters covered by these Terms and Conditions, the parties are contracting out of the CGA and sections 9, 12A and 13 of the FTA.
11.8

None of the exclusions or limitations set out in these Terms and Conditions is intended to limit or exclude any form of liability that cannot be so limited or excluded under applicable law.

12.
Term and Termination
12.1

These Terms and Conditions will come into effect on the date that the applicable Customer or Authorised User first subscribes to the Service, and will continue in full force and effect until that Customer’s or Authorised User’s subscription has been terminated under clauses 12.2, 12.3 or 12.4 (as the case may be).

12.2

The Customer may at any time elect to terminate its subscription, or any subscription of its Authorised Users. To do so, the Customer must follow any steps outlined via the Service for terminating a Customer or Authorised User subscription.

12.3

We may elect to terminate the Customer’s subscription at any time upon giving the Customer at least 30 days’ prior written notice. We may also elect to terminate the Customer’s subscription with immediate effect by giving written notice to the Customer if:

  1. the Customer fails to pay any Fees by the due date;
  2. the Customer or any Authorised User of the Customer is in breach of these Terms and Conditions;
  3. the Customer ceases or threatens to cease to carry on all or substantially all of its business or operations, is declared or becomes bankrupt or insolvent, is unable to pay its debts as they fall due, enters into a general assignment of its indebtedness or a scheme of arrangement or composition with its creditors, or takes or suffers any similar or analogous action in consequence of debt;
  4. a trustee, manager, administrator, administrative receiver, receiver, inspector under any legislation or similar officer is appointed in respect of the whole or any part of the Customer’s assets or business; or
  5. an order is made or a resolution is passed for the liquidation of the Customer (other than voluntarily for the purpose of a solvent amalgamation or reconstruction).
12.4

If you are an Authorised User, your Authorised User subscription will automatically terminate if the Customer’s subscription terminates. We may also terminate any Authorised User’s subscription with immediate effect upon giving written notice to the Customer if that Authorised User is in breach of these Terms and Conditions.

12.5

Without limiting any of the other rights or remedies we may have under these Terms and Conditions, we may suspend the Customer’s or its Authorised Users’ access to or use of the Service in the event that the Customer or any of its Authorised Users is in breach of these Terms and Conditions. Any such suspension will only be lifted if we are satisfied that the failure or breach giving rise to the suspension has been remedied.

12.6

In the event of termination of your subscription under any of clauses 12.2, 12.3 or 12.4:

  1. we will cease to provide the Service to you, and you must cease to use and access the Service;
  2. we will have no obligation to make available to any Customer or Authorised User copies of any User Content in our possession or under our control, but we may at our discretion elect to do so subject to the Customer or Authorised User paying any fees reasonably determined by us in order to cover the time spent by us in preparing such a copy. Such copy will be provided in a format reasonably determined by us or otherwise agreed by us and the Customer or Authorised User in writing;
  3. the Customer will not be entitled to a refund of any Fees paid by it;
  4. the provisions of clauses 3.5, 6.1 to 6.4, 7, 10, 11, 12.6, 13 and any other clauses intended to survive termination, together with those other provisions of these Terms and Conditions that are incidental to, and required to give effect to those clauses, will remain in full force and effect; and
  5. subject to this clause 12.6 and except for any rights and remedies of the parties that have accrued before termination, including for any prior breach of these Terms and Conditions, neither party will be under any further obligation to the other party.
13.
General
13.1

We will not be liable for any failure to provide the Service due to an event of Force Majeure. For the purposes of this clause 13.1, Force Majeure includes any inability to obtain supplies or labour, industrial disputes, delays, act of God, fire, flood, storm, adverse weather conditions, pandemic, or other matters beyond our reasonable control.

13.2

If the Customer is a company or other corporation, then the Customer grants to us the right to use the Customer's name and logo as a reference for the purpose of promoting and marketing the Service. If the Customer does not wish us to use its name and logo for this purpose, we will cease to do so upon written request by the Customer.

13.3

These Terms and Conditions embody the entire agreement of the parties in relation to the subject matter of these Terms and Conditions and supersede all prior understandings, communications and representations between the parties, whether oral or written. The parties acknowledge that they do not rely on any representation, agreement, term or condition that is not set out in these Terms and Conditions.

13.4

Neither the Customer nor any of its Authorised Users may assign, transfer or subcontract any of their rights or obligations under these Terms and Conditions, without first obtaining our written consent. We may assign, transfer or subcontract any of our rights or obligations under these Terms and Conditions, without requiring your written consent.

13.5

We reserve the right to change these Terms and Conditions at any time. In the event of a change, we will endeavour to notify the Customer and its Authorised Users by email, or by posting a notification of the change on our website. The continued use of the Service by the Customer and its Authorised Users following any such notification will be regarded by us as acceptance by them of those changes. No other amendment to these Terms and Conditions will be effective unless in writing and signed by an authorised representative of us.

13.6

These Terms and Conditions will be governed by the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.