General Terms and Conditions
Your use of this website (www.rowwellbeing.com, “we”, “our” or “us”), and purchase of any goods through this website, is governed by the following terms and conditions:
General disclaimer: The information contained in this website is for general information purposes only. The information is provided by Revolutionaries of Wellbeing and while we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the website or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.
In no event will we be liable for any loss or damage including without limitation, indirect or consequential loss or damage, or any loss or damage whatsoever arising from loss of data or profits arising out of, or in connection with, the use of this website.
Through this website you are able to link to other websites which are not under the control of Revolutionaries of Wellbeing. We have no control over the nature, content and availability of those sites. The inclusion of any links does not necessarily imply a recommendation or endorse the views expressed within them.
Every effort is made to keep the website up and running smoothly. However, Revolutionaries of Wellbeing takes no responsibility for, and will not be liable for, the website being temporarily unavailable due to technical issues beyond our control.
New Zealand law applies to use of this website, and all transactions.
Revolutionaries of Wellbeing may change this policy from time to time by updating this page. You should check this page from time to time to ensure that you are happy with any changes. This policy is effective from 28 May 2012.
We may collect the following information: name, contact information including email address, demographic information such as postcode, preferences and interests, other information relevant to customer surveys and/or offers.
We require this information to understand your needs and provide you with a better service, and in particular for the following reasons:
- Internal record keeping.
- We may use the information to improve our products and services.
- We may periodically send promotional emails about new products, special offers or other information which we think you may find interesting using the email address which you have provided.
- From time to time, we may also use your information to contact you for market research purposes. We may contact you by email to do so. We may use the information to customise the website according to your interests.
We are committed to ensuring that your information is secure. In order to prevent unauthorised access or disclosure, we have put in place suitable procedures to safeguard and secure the information we collect online.
Overall, cookies help us provide you with a better website by enabling us to monitor which pages you find useful and which you do not. A cookie in no way gives us access to your computer or any information about you, other than the data you choose to share with us. You can choose to accept or decline cookies. Most web browsers automatically accept cookies, but you can usually modify your browser setting to decline cookies if you prefer. This may prevent you from taking full advantage of the website.
If we use your personal information for direct marketing purposes, you may change your mind at any time by writing to or emailing us using the contact form on our website. We will also always include an ‘opt-out’ in our direct marketing material. We will not sell, distribute or lease your personal information to third parties unless we have your permission or are required by law to do so.
You may request details of personal information which we hold about you under New Zealand law. If you would like a copy of the information held on you please contact us using the contact form on our website. If you believe that any information we are holding on you is incorrect or incomplete, please contact us as soon as possible using the contact form on our website. We will promptly correct any information found to be incorrect.
Intellectual property: The design of, and content contained within, our website, and each of the various trademarks, company names, logos, product names and product images represented on our website are intellectual property which is either owned by us or licensed to us by suppliers or other third parties and must not be reproduced, copied, removed, altered, used, adapted, performed in public or transmitted in any form by any process (graphic, electronic or mechanical, including further copying, recording, taping or by a storage and information retrieval system) without our express permission. All rights are reserved by the original copyright owners.
The products sold on this website are intended solely for your personal non-commercial use. Any use or distribution of products for purposes other than personal non-commercial use is prohibited without our prior written permission. Products such as the posters may be displayed in workplaces, however, they may not be modified or on-sold to third parties.
Accounts: Registering on our website requires a username and password. You are responsible for all activities that occur under your user account, including the accuracy, quality, integrity, legality, reliability, and appropriateness of all data you provide, the confidentiality of your password and user account information. You must make reasonable efforts to prevent unauthorised access to or use of your account. The account is for your use only. By registering on our website, you consent to receive marketing, promotional and other material from us. We may, at our sole discretion, suspend or terminate your account and limit your access to our website if we reasonably believe that to be necessary.
Image attribution: We use images with thanks by Kushagra Kevat, Tim Mossholder, Maxime and Janine Ross-Johnstone.
ROW Gold Terms and Conditions
Membership: ROW Gold is made up of individual members. It is not an organizational membership. Your membership remains with you, regardless of your employment or who funds your membership. The membership year is 12 months from the date of your application or renewal with membership fees for new members due at time of your application. It is your responsibility to keep ROW Gold informed of any changes of address and other contact information.
Payment: Credit card payments can be made through our secure website. Invoices may be paid by credit card and internet banking and are due within 14 days. Please ensure you include the invoice number as your reference with your payment.
Renewal: ROW Gold membership will commence on the date on which your application is received and your fees will cover the 12 month period. One month prior to your renewal date you will be invoiced for the next year’s fee at the rate then applying.
Overdue accounts: Overdue accounts are deemed to be those accounts that remain unpaid after thirty days from the date of invoice. Your ROW Gold membership will be disabled after two months from the date of invoice.
Resignation: A member may resign their membership by notifying Revolutionaries of Wellbeing in writing via our contact us page. If any monies are due to ROW Gold at date of resignation, they remain payable. To avoid being invoiced for the next membership year please submit your resignation ideally no later than the month before your renewal month, as invoices are automatically generated 1 month prior to your renewal date for the following membership year. For resignations during the term of membership, there are no partial refunds.
Personal data: To ensure that we can communicate with you, share knowledge amongst members, organise events, share updates, and plan for the future of the group, we need to collect different types of information, including personal data. As the hosts of the group, we are very protective and want to make sure you feel it is a safe place to share. Please note:
- in terms of contact details, we will only ever ask for the information we need to know.
- email is the primary method of communication between ROW Gold and its members, including event notices, membership information, and annual membership invoicing.
- as part of the group, we may ask you questions that relate to wellbeing in your workplace. It is up to you how much you want to share. We will collect and use the data you share with us transparently, honestly and fairly.
- we will always respect your choices around the data that you share with us and the confidentiality. You are welcome to change this information at any time. Please email: firstname.lastname@example.org.
- we will put appropriate security measures in place to protect the personal data that you share.
- we will never, ever sell your contact information. We feel strongly that it would be unethical, and against the values of the group.
- we do enable advertisers to promote their products, services and events on ROW Gold. ROW Gold data shared with advertisers will be aggregated (for example, number of clicks on an advertisement) to protect your privacy. Where it makes sense to share your contact information with advertisers, we will always ask for your consent.
- as a group member, if you have any questions or concerns at any time – please email us: email@example.com or ring +6421 183 9822.
Disclaimer: The materials on the Well-Gold website are intended to provide general information only and may not necessarily be accurate or current. This site may contain links or other references to other parties and their websites. Revolutionaries of Wellbeing cannot control the contents of those other sites, and makes no guarantee about the accuracy, timeliness or subject matter of the material located on those sites. Revolutionaries of Wellbeing does not necessarily approve of, endorse or sponsor any content or material on those sites.
Revolutionaries of Wellbeing makes no guarantees or representations that material on other websites to which this website is linked does not infringe the intellectual property rights of any person anywhere in the world. ROW Gold is not, and must not be taken to be, authorising infringement of any intellectual property rights contained in material or other sites by linking or allowing links to, this website to such material on other sites.
To the maximum extent permitted by law, Revolutionaries of Wellbeing and each author of this site disclaims any liability to any person arising out of any action or failure to act by that person, in accessing, downloading, using or relying on any materials from this website whether caused by the negligence of Revolutionaries of Wellbeing or otherwise.
Under no circumstances will Revolutionaries of Wellbeing and each author of this website be liable for any indirect, incidental, special or consequential damages, including damages for loss of business or other profits, arising in relation to the use of any material from this website in any way whatsoever whether caused by the negligence of Revolutionaries of Wellbeing or otherwise.
Revolutionaries of Wellbeing does not represent or guarantee that any files obtained from or through this site are free from computer viruses or other defects. Any such files are provided, and may only be used, on the basis that the user assumes all responsibility for any loss, damage or consequence resulting directly or indirectly from use of those files.
Acknowledgment of terms: Unless you formally advise otherwise, your continued association and use of the website will be taken by Well-Gold as your acceptance of these terms. These terms and conditions may change from the time to time and we will do our best to update the group when this happens. The intention is to ensure the group continues to thrive and be a place of learning, growth and support.
Group agreement: As a group, ROW Gold relies on the trust and respect of members. As a member of the group, you agree to uphold these standards, and the following:
- All discussions must relate to workplace wellbeing and be focused on creating workplace cultures that are positive and inclusive.
- Membership to the group is at Revolutionaries of Wellbeing’s sole discretion. We love having a wide and varied group and but will exercise our discretion to remove members when needed if members impose on the supportive nature of the group.
- We ask members to follow the Chatham House Rule with regards to sharing information gained from any discussions unless granted permission. Where a member is removed by Revolutionaries of Wellbeing, no refund will be offered.
- From time to time, it may be possible to see others’ email addresses. Please be respectful of this information. Members are welcome to make contact between each other on a one-to-one basis.
- If members wish to email information to the wider group then it must be sent to ROW for distribution. This is to keep emails related to the group to a minimum (goodness knows our email inboxes are full enough!).
- Sending multiple unsolicited emails to members is not allowed and anyone found doing so will be removed from the group.
- It’s great to hear case studies and to celebrate wins within the group (e.g. if your organisation has won an award – let us know!). However, to protect the purpose and intent of the group, we won’t tolerate spam or selling of services/goods (without Revolutionaries of Wellbeing’s prior approval) and will remove any member from the group that focuses on self or organisational promotion without permission.
Accounts: Registering on our website requires a username and password. You are responsible for all activities that occur under your user account, including the accuracy, quality, integrity, legality, reliability, and appropriateness of all data you provide, the confidentiality of your password and user account information. You must make reasonable efforts to prevent unauthorised access to or use of your account. The account is for your use only. By registering on our website, you consent to receiving marketing, promotional and other material from us. We may, at our sole discretion, suspend or terminate your account and limit your access to our website if we reasonably believe that to be necessary.
Product Information: We have made every effort to display the products featured as accurately as possible. The device you use to view our website may impact on the display of our products. Measurements provided on our website are approximate only. We do not guarantee that the colour, texture or detail of the product shown on your screen will accurately reflect the actual product. We reserve the right to change any aspect of our product information (including price) at any time without notice.
Prices: Prices are displayed in New Zealand dollars, inclusive of goods and services tax (GST) where applicable. We have made every effort to provide accurate pricing information on our website. Where the pricing error is reasonably obvious we may cancel any orders through our website.
Stock Availability: Products displayed on our website are subject to availability. We endeavour to provide accurate stock availability information on our website, however occasionally a product may appear to be “in stock” when it is not available.
Terms of Sale
In addition to the above General Website Terms and Conditions, the following terms and conditions of sale apply to all purchases by you through our website. This includes items that can be downloaded for free. By completing a purchase order or downloading items from our website you are stating that you agree to be bound by all of these terms and conditions.
Acceptance of Orders: Dispatch of orders is subject to stock availability and you will be advised if a product is unavailable. To the maximum extent permitted by law, we will not be liable to any person if we decline to fulfil, or are unable to fulfil, an order.
Prices: We will charge you the retail price shown on the website at the time you submit your order, together with any additional handling and delivery fees.
Payment: Payment for products online can be made by credit card (NZ$) through our secure payment gateway.
Delivery: We currently ship internationally. If you live outside New Zealand, you are responsible for all duty and customs charges incurred in shipping your goods. Due to restrictions, we may not be able to ship to some countries and will advise if we cannot fill your order. Delivery charge will be advised at time of order. You must make sure that the delivery address and receiver’s name for your order are accurate and complete (including any business name if you ask us to deliver to a work address) because we may be unable to change these details once the order has been placed. We cannot take responsibility for any orders that go missing due to incorrect delivery information provided by you, or because you have not chosen a safe delivery address. Delivery will be deemed to have been made when the goods arrive at the delivery point agreed with you, or, if you are to arrange delivery, when the goods are available for collection by you.
We will notify you when your order has been dispatched. Once an order is sent, it normally takes 2-5 business days to be delivered to New Zealand addresses. International shipping times can vary greatly so we will provide you with tracking information that will enable you to check on the progress of your parcel.
We use New Zealand Post. Deliveries are made during standard weekday business hours and a signature is not required on delivery. If you wish to request a particular location at your delivery address for the parcel to be left please enter a brief note in the delivery instructions field. New Zealand Post are unable to guarantee full compliance with these instructions, but where possible will endeavour to fulfil your request. Unfortunately, requests to deliver at a certain day or time cannot be accommodated.
You must notify us within 10 days of the dispatch date (as stated in the email we send confirming dispatch) if you have not received an item. It is your responsibility to take care of the goods when they have been delivered in accordance with the instructions you have given us.
Liability: If you buy goods or services from us for personal use, the guarantees set out in the Consumer Guarantees Act 1993 will apply to those goods or services. If you buy goods or services for business use, then we exclude all warranties, representations or conditions in relation to the goods and/or services provided by us implied by law, trade, custom or otherwise and our liability for any claim, damages, loss or expense related to the supply or use of goods or services is limited to the cost paid by you for those goods or services and we will not be liable, whether in contract, tort (including negligence) or otherwise for any business losses including indirect, consequential or special loss or damage, loss of profits, loss of data, loss of savings and loss of opportunity.
Returns: Please choose carefully, as we do not refund if you change your mind or if you made a mistake when ordering from the website. If the product returned is faulty, we will meet our obligation to provide a remedy under the “Consumer Guarantees Act”. We do not offer exchanges.
Cancellations: If you wish to cancel your order, please contact us as soon as possible. It is not possible to cancel your order once it has been dispatched. This includes digital downloadable files.
Product damage: Should any damage be found after signing for the products due to the damage being concealed (i.e. not obvious due to packaging) you must notify Sarah McGuinness Ltd within 24 hours of delivery. We can discuss replacement or refund options, and collection of the damaged item and return it to us.
Digital file use: Digital products are for personal use only, and not for commercial use (you can not alter and then re-sell the images). Digital products, such as the posters, are available as a compressed file to download. No physical item will be shipped.
We regularly update these terms and conditions as the group evolves. Revision notices are posted in the Member Area on the Well-Gold website and members are responsible for regularly reviewing any updates. The intention is to ensure the group continues to thrive and be a place of learning, growth and support.
Kite Support Terms and Conditions
”We” are The KITE Program Limited a limited liability company incorporated in New Zealand.
- What information we collect
- We collect Personal Information including:
- your name;
- your contact details (including email address); and
- some basic information about your personal circumstances (such as the industry you work in).
- Upon accessing the App, your Device transmits certain information. This information is saved in log files and includes:
- operating system, information about your Device;
- IP-address and date and time of access; and
- information related to your use of the App.
- We collect Personal Information including:
- How we collect information
- We collect Personal Information in three (3) ways:
- the Personal Information described in clause 1 may be collected when you create an Account, or otherwise when you provide your Personal Information directly to us within the App;
- your organisation may provide us with Personal Information about you, including the Personal Information described in clause 1, and your organisation must ensure that they are authorised to disclose that information to us in accordance with applicable privacy and data protection laws; and
- we automatically collect the information described in clause 2 through cookies (or similar technologies) and other software within the App. Cookies are small files stored in a browser-related file on your Device when you use the App. You have the option to disable cookies by changing your browser settings.
- Analytical data
- We may combine and analyse the information that we have collected. Where possible we will use de-identified information. This means the information is collated in such a way so that it no longer reflects or represents any individual User.
- However, it is possible that data analytics will create new personal information. For example, we may apply insights from data analytics to a User to understand that User’s preferences and behaviour.
- Where we store information
- The security of your Personal Information is important to us. We follow generally accepted standards to protect the Personal Information submitted to or collected or created by us, both during transmission and once it is received.
- Personal Information may be transferred and securely stored on servers outside of New Zealand. All Personal Information that we store on servers located outside of New Zealand will remain in our effective control at all times.
- In addition, our employees and the contractors who provide services related to our information systems are contractually obliged to respect the confidentiality of any Personal Information we hold.
- What we do with the information we collect
- We process Personal Information:
- to carry out our obligations under the End User Agreement;
- to provide and tailor the App, Content and Features;
- to identify you when you sign-in to your Account and verify that your Account is not being used by others;
- to enforce compliance with our End User Agreement; and
- to comply with laws,
- We collect Personal Information in three (3) ways:
and such processing is necessary for the performance of the contract between you and us.
- We process Personal Information:
- to carry out our obligations under any Master Agreement between us and your organisation;
- to comply with our obligations to our third-party service providers;
- to analyse usage of the App, or carry out research and analysis, so we can improve the App; and
- to personalise the App for Users,
and such processing is necessary for the purposes of a legitimate interest pursued by us, and we have assessed that our interests are not overridden by the interests or fundamental rights and freedoms of the person to whom the Personal Information relates.
- We may also use Personal Information collected for such other purposes that are compatible with the original purpose described above, or that you otherwise consented to from time to time.
- We also process Personal Information to communicate with you in relation to the App from time to time, including to respond to your contact request and any related communication. You can unsubscribe from any communications from us by contacting us as directed in any such communications.
- Third party services
- We use third party services for providing a better experience for Users and for improving our App. In the process of doing so, the third party service provider may have access to Personal Information as described below. However, third parties do not have the right to use the Personal Information for their own use.
- We use a third party provider to:
- send newsletters and updates about the Services. Using such a third party provider requires that we upload your contact details such as an email address to their server. You can always unsubscribe by following the directions within the Services; and
- send emails when you use the Services, such as when you activate your account or reset your password. Using such a third party provider requires that we upload your contact details such as an email address to their server.
- Retention of information
- We will delete your Personal Information once:
- the purpose for collection of that information is no longer relevant; and
- we are no longer required to comply with any legal obligation that necessitates the retention of that information.
- Despite 1, we may retain a copy of Personal Information (in a static form, not accessible online) for archival purposes only.
- We will delete your Personal Information once:
- Your rights
Privacy Act 1993 (NZ)
- AS we are a New Zealand based company, you have the right under the Privacy Act 1993 (NZ) to access and/or correct your Personal Information held by us.
- Please note that in certain circumstances we may withhold access to your information where we have the right to do so under the Privacy Act, for example, where disclosing the information may reveal the identity of a third party.
- If you are an EU based person you have the right, under the GDPR, to:
- access and correct your Personal Information;
- in certain circumstances, have your Personal Information erased;
- restrict the processing of your Personal Information;
- move, copy or transfer your Personal Information easily for your own purposes across different services in a safe and secure way; and
- object to processing where we rely on our legitimate interests as the lawful basis for processing.
- Please note that in certain circumstances we may refuse to respond to a rights request where it we have the right to do so under the GDPR, for example, where a request is manifestly unfounded or excessive.
Exercising your rights
- Changes to this policy
- Governing law
KITE – Software as a Service Agreement
This Software as a Service Agreement is dated from 26 March 2020.
- The Kite Program Limited (Supplier)
- The purchaser of Kite Support (Client)
- The Supplier has developed and provides a Software as a Service application, known as Kite Support, for use in the enhancement and development of employee wellbeing.
- The Client is an employer who wishes to utilise Kite Support as part of its human resources and health and safety obligation and offering to its employees.
- The parties have agreed on the terms that the Client will purchase subscriptions to use Kite Support for its employees and enter into this Agreement to record those arrangements.
Operative Part 1 Terms and Definitions
Agreement means this Agreement;
Analytical Data means the data relating to the usage of the Service;
Business Day means a business day in Christchurch, New Zealand
Confidential Information means the terms of this Agreement and any information this is not public and was obtained by either party from the other pursuant to this Agreement;
Fees means the Initial Fee and the Subscription Fees payable pursuant to this Agreement; Initial Fee means any fee paid upfront.
Intellectual Property Rights includes all copyright and all rights existing anywhere in the world relating to patents, trademarks, confidential information, know how and all other rights relating to intellectual activity;
Start Date means the date being date of access to Kite Support;
Service means the Kite Support;
Subscription means a licence to use the Service by one person;
Subscription Fee means the fee to access each Subscription per user per year;
Underlying Systems means all systems, networks, software and hardware used to provide the
Website means www.thekiteprogram.com
2.1 In this Agreement reference to the plural includes reference to the singular, and vice versa.
2.2 In this Agreement reference to any statutory provision includes any statutory provision which amends or replaces it and any subordinate legislation made under it.
2.3 Headings inserted in this Agreement are for convenience of reference only and do not affect the interpretation of this Agreement.
3.1 The Supplier will use reasonable efforts to provide the Services to the Client and their personnel:
- in accordance with this Agreement and New Zealand law;
- by way of a Subscription to the Service on the terms and conditions published on the Website;
- exercising reasonable care, skill and diligence;
- using suitably skilled, experienced and qualified personnel;
- Utilising the content chosen and developed by the Client to feature in the Service.
- The Supplier’s provision of the Services to the Client and their personnel is non-exclusive. Nothing in the Agreement prevents the Supplier from providing the Services to any other person.
- The Supplier will use reasonable efforts to ensure the Service is available on 24/7 basis. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. The Supplier will use reasonable efforts to publish on the Website and communicate with the Client via email advance details of any unavailability.
- At the request of the Client and subject to the Client paying the applicable fees, the Supplier may agree to provide to the Client with additional services on the terms of this Agreement.
- The Client and its personnel must only use the Services in connection with the Client’s business and HR purposes.
- The client or its personnel may not resell or make available the Services to any third party, or otherwise commercially exploit the Services.
- When accessing the Service, the Client and its personnel must:
- not impersonate another person or misrepresent authorisation to act on behalf of others or the Supplier;
- not attempt to undermine the security or integrity of the Underlying Systems;
- not use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service;
- not attempt to view, access or copy any material or data other than:
- that which the Client is authorised to access; and
- to the extent necessary for the Client and its personnel to use the Service in accordance with this Agreement;
4.1 The term of this Agreement will commence on the Start Date and will be subject to clause 4.2 end on the later of:
- one year from the Start Date; or
- when there are no employees of the Client holding a subscription to use the Service.
4.2 The Supplier may terminate this Agreement and the subscriptions provided to the Client’s employees on three (3) months written notice to the Client.
5.1 The Client’s personnel who the Client determines are to use the Service will each obtain a Subscription to use the Service.
5.2 The Client will as soon as possible following the Start Date operate the Service and invite users to obtain a subscription to the Service.
6 Analytical Data
6.1 The client agrees that the Supplier may obtain and retain the Analytical Data obtained from the use of the Service by the Client and their personnel, and use that Analytical Date for the purposes of its own internal research and development. The Supplier agrees that they will keep all Analytical Data confidential and will not permit any disclosure without first obtaining the written consent of the Client.
6.2 The title to and intellectual property in the Analytical Data remains the Supplier’s property.
7.1 The Client will pay 50% of the Initial Fee in cleared funds and without set-off to the Supplier within five (5) Business Days of receiving an invoice from the Supplier for the same. The remaining 50% will be payable on completion of development, and Client will pay this in cleared funds and without set-off to the Supplier within five (5) Business Days of receiving an invoice from the Supplier for the same. The product will be released to the Client upon receiving payment.
7.2 Upon any new Subscription being commenced for any of the Client’s employees, and on the first day of each subsequent month while that Subscription remains current the Client will make payment to the Supplier of the Subscription Fees payable in respect of that Subscription. There will be no apportionment for the first and last months for any Subscription with each month being of the same value.
7.3 The Supplier may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by the Supplier’s primary trading bank as at the due date (or, if the Supplier’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.
7.4 By giving at least 15 Business Days’ notice, the Supplier may increase the Fees once each Year (but not the first Year) by the percentage change in the New Zealand Consumer Price Index (or similar or equivalent index if that index ceases to be published) over the 12 months preceding the last quarterly publication of that index issued by Statistics New Zealand prior to the date of the notice.
7.5 If the Client does not wish to pay the increased Fees, it may terminate the Agreement on no less than 15 Business Days’ notice, provided the notice is received by the Supplier before the effective date of the Fee increase. If the Client does not terminate the Agreement in accordance with this clause, it is deemed to have accepted the increased Fees.
8 Intellectual Property
8.1 All Intellectual Property Rights in, the Services, the Kite Website, and all Underlying Systems is and remains the property of the Supplier. The Client must not contest or dispute the ownership, or the validity of those Intellectual Property Rights.
9.1 Each party must, unless it has the prior written consent of the other party:
- keep confidential at all times the Confidential Information of the other party;
- effect and maintain adequate security measures to safeguard the other party’s
Confidential Information from unauthorised access or use; and
- disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of this clause.
9.2 The obligation of confidentiality in clause 9.1 does not apply to any disclosure or use of Confidential Information:
- for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
- required by law (including under the rules of any stock exchange);
- which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
- which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or
- by the Supplier if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this clause.
10.1 Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.
To the maximum extent permitted by law:
(a) the Supplier’s warranties are limited to those set out in the Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to NZD$1,000; and
(a) the Supplier makes no representation concerning the quality of the Services and does not promise that the Services will:
i meet the Client’s requirements or be suitable for a particular purpose; ii be secure, free of viruses or other harmful code, uninterrupted or error free.
10.2 The Client agrees and represents that it is acquiring the Services, and entering the Agreement, for the purposes of trade. The parties agree that:
- to the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Services or the Agreement; and
- it is fair and reasonable that the parties are bound by this clause.
10.3 Where legislation or rule of law implies into the Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Agreement. However, the liability of the Supplier for any breach of that condition or warranty is limited, at the Supplier’s option, to:
- supplying the Services again; and/or
- paying the costs of having the Services supplied again.
11.1 The maximum aggregate liability of the Supplier under or in connection with the Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any year exceed the Fees paid by the Client to the Supplier.
11.2 Neither party is liable to the other under or in connection with the Agreement or the Services for any:
- loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
- consequential, indirect, incidental or special damage or loss of any kind.
- Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.
- Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.
12.1 Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.
12.2 Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute, provided where the Client has not paid the Fees reasonably considered owing by the Supplier for 30 Business Days from their due date for payment the Supplier may suspend or cancel the supply of the Services and any such suspension or cancellation is without prejudice to the rights to pursue the recovery of all outstanding Fees and costs arising in respect of their recovery.
12.3 This clause does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
13.1 Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:
- immediately notifies the other party and provides full information about the Force Majeure;
- uses best efforts to overcome the Force Majeure; and
- continues to perform its obligations to the extent practicable.
- No person other than the Supplier and the Client has any right to a benefit under, or to enforce, the Agreement.
- To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
- The Supplier is an independent contractor of the Client, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
- A notice given by a party under the Agreement must be delivered to the other party via email using the email address notified by the other party for this purpose.
- If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
- If modification under this clause is not possible the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.
- Any variation to the Agreement must be in writing and signed by both parties.
- The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the date of this Agreement. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement.
- Subcontracting and assignment:
- The Client may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of the Supplier, that consent not to be
unreasonably withheld. The Client remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
- Any change of control of the Client is deemed to be an assignment for which the Supplier’s prior written consent is required under this clause. In this clause change of control means any transfer of shares or other arrangement affecting the Client or any member of its group which results in a change in the effective control of the Client.
- The Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with the Agreement.
- The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Agreement by signing and emailing a counterpart copy to the other party.
KITE – End User Agreement
This is version 1.0 of this agreement (End User Agreement) and became effective on [date].
- Who we are and what this agreement does
You are being granted access to the App because the organisation you work for, contract to, or are otherwise engaged with (your organisation) has:
agreed to subscribe, under a [subscription agreement] (Master Agreement), for certain services provided by us including the App; and
requested that we provide you with access to the App.
In accordance with the Master Agreement, we have agreed to provide you with access to the App subject to you agreeing to be bound by this End User Agreement.
By clicking on the “accept” button, you agree to the terms of this End User Agreement in their entirety, which shall form a binding agreement between you and us.
Please read this End User Agreement carefully. If you do not agree to these terms, you must not access the App, or if you have, you must immediately cease any such access and use.
If you download the App onto any computer, mobile phone, tablet or other device (Device) not owned by you, you must have the owner’s permission to do so. You will be responsible for complying with these terms, whether or not you own the Device.
- Definitions and Interpretation
In this End User Agreement:
we, us and our means The Kite Program Limited (the provider of the App), and
User or you means the person who uses the App.
Other capitalised terms not otherwise defined have the meaning given to them in clause 17.
Where any provision of the Master Agreement is inconsistent with any provision of this End User Agreement then:
as it relates to your access to and use of the App, the terms of this End User Agreement shall prevail (but only to the extent of the inconsistency); and
as it relates to the access to and use of the services provided by us to your organisation, the terms of the Master Agreement shall prevail (but only to the extent of the inconsistency).
The ways in which you use the App may also be controlled by [Goggle Play and the App Store]’s rules and policies available [here], and those rules and policies will apply instead of the terms of this End User Agreement where there are inconsistencies between the two (but only to the extent of the inconsistency).
Under privacy and data protection laws, we are required to provide you with certain information about who we are, how we process your Personal Information and for what purposes and your rights in relation to your Personal Information and how to exercise them.
This End User Agreement shall commence on your acceptance of this End User Agreement and shall continue until the earlier of:
expiry or termination of the Master Agreement;
your organisation requesting that you no longer have access to the App (when we process that request);
when you request the cancellation of your Account at any time by following the prompts within the App (when we process that request).
Upon termination of this End User Agreement for any reason, you must cease using the App and follow all reasonable instructions from us in relation to cessation of such use.
Any termination of this End User Agreement shall not relieve either party of any obligation accrued prior to such termination, and shall be without prejudice to the rights and remedies with respect to default or breach of this End User Agreement prior to termination.
- How you may use the App
In return for accepting and complying with the terms of this End User Agreement, we grant you a limited, non-exclusive, non-transferable and revocable right to access and use the App strictly in accordance with the Master Agreement and this End User Agreement.
You agree that your right to use the App is subject to you:
complying with this End User Agreement;
following any directions we give you from time to time in relation to use of the App;
exercising at all times all reasonable care and diligence, and you must not pass any virus, worm, bug or other computer infection to us, or any third party providers; and
complying with all applicable laws and regulations that apply to your use of the App,
and your organisation must comply with the Master Agreement.
All rights not expressly granted under clause 5.1 are reserved by us and any other applicable third party providers of the App.
The Features we offer may include the ability for your organisation to receive notifications or reports on your use of the App, including updates on your progress with Kite programs or modules. We do not safeguard an interruption-free and latency-free end-to-end connection between you and your organisation.
You accept that the App and its Features may evolve and change over time. We reserve the right at any time to modify, adapt, suspend or discontinue, whether temporarily or permanently, your access to the App or any Features (or any part of them) with or without notice to you. To the extent permissible at law, we will not be liable to you or to any third party for any modification, adaptation, suspension or discontinuance of the App or any Features.
Some Features within the App are dependent on:
the capabilities of your Device, and you are solely responsible for the installation and configuration of the App on your Device;
your organisation enabling your access to that Feature, and your organisation is solely responsible for determining which Features you will have access to;
you enabling that Feature for the App on your Device, for example you have the ability to turn on or off  for the App on your Device;
your Device’s connection to the internet;
certain third party providers and the availability of their products and services, all of which may be subject to changes by those third parties,
accordingly, such Features may be modified or limited.
This End User Agreement does not grant to you any rights to use any other products or services offered by us, and you must not attempt to do so or assert otherwise.
- Prohibited uses
You agree not to otherwise modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell the App. Additionally, you agree:
to use the App for personal development purposes and not for any other purpose, including any commercial purpose;
not to use the App for any illegal purpose;
to ensure that any information you provide in connection with your Account and general use of the App is and will remain true, accurate and current, and that you will promptly notify us of any change in such information;
to keep your Account details and password strictly confidential and not share your Account password with any other person;
not to access, monitor or copy the App or its Content using any robot, spider, scraper or other automated means or any manual process for any purpose;
not to violate the restrictions in any robot exclusion headers within the App or bypass or circumvent other measures employed to prevent or limit access to the App;
not to take any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure;
not to deep-link to any part of the App for any purpose;
not to “frame”, “mirror” or otherwise incorporate any part of the App; and
not to attempt to modify, translate, adapt, edit, decompile, disassemble, reverse engineer or undermine the security or integrity of any software programs used by us in connection with the App.
We will take all reasonable steps to ensure that the App functions as intended. However, you acknowledge that your access to the App may be disrupted as a result of a malfunction, updating, maintenance or repair of the App or for any other reason within or outside our control.
To the extent permissible at law, we shall not be liable for any loss or damage caused or suffered as a result of any partial or total breakdown of, or inability to use, the App. We will use reasonable endeavours to promptly address (during normal business hours) technical issues that arise in relation to the App.
You agree that use of the App is at your own risk and that we do not warrant that the App will meet your specific requirements, or that use of the App will be uninterrupted, timely, secure, or error-free.
You shall be liable for all action taken by any person that has obtained access to your Account (whether they have authorised such access or otherwise) and agree to notify us immediately of any unauthorised use of your Account or other breach of privacy or security.
We will treat Personal Information as confidential information, and will make every reasonable effort to keep confidential information confidential and secure. We will not disclose your confidential information except:
for disclosures to your organisation where a Feature of the App allows your organisation access to such information;
to our personnel and any third-party service provider that we work with where necessary to operate the App;
if required or permitted by law; or
where you otherwise give us permission to do so.
Nevertheless, because internet transmissions cannot be guaranteed to be 100% secure in all aspects (including in relation to unauthorised use and disclosure of Personal Information), you acknowledge and agree that you use the App at your own risk, and you should only proceed to use the App if you accept this condition.
You must not share another person’s Personal Information within the App without that person’s explicit permission.
- Intellectual Property Rights
You agree that we own (or have obtained to rights to use) all Intellectual Property Rights associated with the App and its Content.
Copying, transmission, reproduction, replication, posting or redistribution of the App or its Content (or any part of them), is strictly prohibited without our prior written consent. To request permission, you may contact us at: firstname.lastname@example.org
- Limitation of liability
In no event or circumstances shall we be liable to any person, whether under contract, tort, strict liability, negligence or otherwise at law for any special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, or for any loss of profit, use, content, data, opportunity, revenue or business, whether caused by any User, us, our employees, agents or any other persons acting on its behalf.
To the extent permissible at law the total liability of us for any loss arising from or in connection with this End User Agreement, the App or its Content, will not in any circumstances exceed NZ$100 in aggregate. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
- Use of third parties
You agree that we may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the App and store and manage its Content.
This End User Agreement shall be governed by and construed in accordance with the laws of New Zealand, and the parties submit to the exclusive jurisdiction of the New Zealand courts for any matter arising under or relating to this End User Agreement.
We may transfer, assign or sub-license its obligations under this End User Agreement and its rights and obligations without your consent.
If any provision of this End User Agreement is found to be unenforceable or invalid, that provision shall be limited or removed to the minimum extent necessary so that this End User Agreement shall otherwise remain in full effect.
- Amendments to this End User Agreement
This End User Agreement may be amended or replaced from time to time to reflect changes in law or best practice, based on User feedback or to deal with additional Features which we may introduce.
We reserve the right to amend or replace this End User Agreement at any time, with or without prior notice to Users, by posting updated End User Agreement on the Website. Any updated End User Agreement become effective as soon as they are posted.
If an updated End User Agreement constitutes a material change, we will endeavour to communicate the change via:
a notification sent to the email address connected to your Account;
an in-App notification; or
an announcement on the Website.
Your continued use of the App following any amendment of this this End User Agreement constitutes your acceptance of the updated End User Agreement.
If you do not agree to the updated End User Agreement you must cease to use the App and cancel your Account.
- Updates to the App
From time to time We may update the App in accordance with the Master Agreement or to improve performance, enhance functionality, introduce new Features or address security issues.
Except for new Features (where clause 6.3.2 applies), if you choose not to install such updates or if you opt out of automatic updates you may not be able to continue using the App.
In this End User Agreement, the following terms have the following meanings:
Account means an account within the App set up by a User.
App means the personal development application provided by us, and unless the context requires otherwise includes all such applications we provide (including, without limitation any application provided through the Website).
Content means any content or materials including (but not limited to) still or moving images, videos, sound recordings or other audio-visual materials, artistic works, written works as well as the infrastructure used to provide such content.
Features means the features, functions, modules and programs available within the App.
Intellectual Property Rights means any intellectual property rights in existence now or coming into existence in the future anywhere in the world and includes (but is not limited to) rights in respect of copyright, trade marks (whether registered or unregistered), inventions, patents, designs (whether registered or unregistered), confidential information and know how.
Personal Information means any information relating to an identified or identifiable individual.
Website means the website at www.thekiteprogram.com, including parts or features of that website that can be used or accessed without requiring registration or logging into the App.