dbonair
A Service from Webspeed Limited
User License and Terms of Use for the dbonair Facility
SECTION (A) LICENSE AGREEMENT
This is a license agreement (The Agreement) between the Client user (The Client) and Webspeed Limited (Webspeed), for the use of the dbonair facility (Facility).
Using with the Facility constitutes agreement to be bound by the terms of this Agreement. Read this agreement carefully before using the Facility.
User Responsibilities, Rights and Restrictions
Webspeed grants the Client the right to access and transact with the Facility. The Client may only publish data that the Client has a legal right and authority to use.
The Client is fully responsible for ensuring security and appropriate use of the Client's user names, passwords and other security features relating to the Facility. The Client shall take all steps to ensure that these are kept confidential and secure and not revealed to any other person.
The Client is responsible for any unauthorised use of the Facility through the Client's usernames, and for all losses or charges, including losses or charges that may result from unauthorised or fraudulent use.
The Facility may not be used to:
• Conduct any fraudulent activity or criminal offense
• Send, receive, upload, download, use or reuse any material that is offensive, abusive, indecent, defamatory or obscene or menacing or in breach of copyright, confidence, privacy or any other rights
• Send unsolicited advertising or promotional material
• Cause annoyance to anyone with material that may have damaging or contamination effects
• Interfere or attempt to interfere with any other person's use of the Facility
Intellectual Property Rights
Intellectual property rights in any software supplied by Webspeed for the Client's use are, and remain, the property of Webspeed.
The Client may not:
• Disassemble, reverse engineer or decompile or in any other way interfere with the software
• Copy or modify the software
• Create any new software partly or wholly based on the Facility software
• Transfer, assign or sub-license your right to use the software or attempt to do so.
Termination
This Agreement will automatically terminate without notice if the Client fails to comply with any provisions of the Agreement.
Upon termination of the Facility service by the Client or Webspeed, the Client immediately forgoes any rights to use the Facility. The Client shall immediately pay to Webspeed all costs and expenses and all arrears of charges or other payments outstanding. The Client must also take all steps to ensure that intellectual property, user names and password remain confidential at all times, including after termination of the Agreement.
SECTION (B) TERMS & CONDITIONS
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| 1 | Constitution of Contract
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| 1.1 | Any contract between Webspeed and the Client shall be upon terms specified in these Terms and Conditions (Agreement).
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| 2 | Supply of Services and License
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| 2.1 | Webspeed shall use all reasonable endeavours to maintain a mobile data publishing facility (Facility) for use by the Client.
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| 2.2 | For the duration of the contract, Webspeed may allow end users to publish data for, and retrieve data on, mobile devices.
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| 3 | Client's Obligations
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| 3.1 | The Client shall supply to Webspeed all necessary data required for the successful establishment and operation of the Facility.
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| 3.2 | This data will be substantially clear and free of errors.
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| 3.3 | Required data shall be supplied in a timely manner and in the form specified by Webspeed.
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| 3.4 | The Facility is for the purpose of making data available to mobile devices and is not a backup service. Should the facility suffer irretrievable data loss the Client may be required to restore their data from copies made by the Client for their own backup purposes.
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| 4 | Intellectual Property Rights
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| 4.1 | Except where it is shown that Webspeed or its agents have been negligent, Webspeed shall have no liability for any infringement of intellectual property rights arising from the use of any know-how, techniques, media, data, information or programme not provided by Webspeed; or the modification of the Facility by any party other than Webspeed; or an allegation of infringement of intellectual property rights arising from information, data, or content supplied to Webspeed by the Client or any representative or agent of the Client.
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| 5 | Webspeed's Liability
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| 5.1 | Though Webspeed will undertake its best endeavours to ensure an uninterrupted and error-free service, Webspeed does not warrant that the Facility or any service related to it will be uninterrupted or error free; nor does Webspeed make any warranty as to the results to be obtained from use of the data or any service related to it.
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| 5.2 | Webspeed shall not be liable to the Client for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with the Agreement, the Facility, its use, application, support, or otherwise, except to the extent to which it is unlawful to exclude such liability and except where it is alleged that Webspeed or its agents have been negligent.
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| 5.3 | In the event that any exclusion or provision contained in this Agreement shall be held to be invalid for any reason and Webspeed becomes liable for loss or damage that it would otherwise have been lawful to limit, such liability shall be limited to the amount of Webspeed's monthly charge applied to any affected database(s).
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| 5.4 | The Client releases and discharges Webspeed from any and all claims and demands arising out of, or in connection with the design or maintenance of the Facility including without limitation any and all claims for libel and invasion of privacy.
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| 5.5 | Where the Client is a business (as "business" is defined by the Consumer Guarantees Act 1993), it is agreed that it is purchasing all services from Webspeed for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply.
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| 5.6 | Where the provisions of the Consumer Guarantees Act 1993 apply, the provisions of these Terms and Conditions will be read subject to the application of that Act, and in the case of any conflict the provisions of that Act will apply.
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| 6 | Force Majeure
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| 6.1 | Neither party shall be under any liability to the other in respect of anything which may constitute breach of the Agreement arising by reason of force majeure, namely, circumstances beyond the control of the party.
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| 7 | Termination
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| 7.1 | Either party may terminate the Agreement immediately if any of the following events shall occur, namely:
• If the defaulting party is in breach of any term, condition or provision of the Agreement or required by law.
• If the defaulting party, being a body corporate shall present petition or have a petition presented by a creditor for its winding up, or shall convene a meeting to pass a resolution for voluntary winding up, or shall enter into any liquidation (other than for the purposes of a bonafide reconstruction or amalgamation) or shall call a meeting of its creditors, or shall have a receiver of all or any of its undertakings or assets appointed, or shall be deemed by the Insolvency Act to be unable to pay its debts.
• If the Client, being a firm or partnership shall be dissolved or in any case shall commit any act of bankruptcy or have a receiving order made against him/it or shall make or negotiate for any composition or arrangement with or assignment for the benefit of his/its creditors.
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| 7.2 | On termination by Webspeed, howsoever arising, the Client shall pay to Webspeed all costs and expenses and all arrears of charges or other payments arising from any Client-specific deliverables including support and the use of the system by the Client's authorised users under this Agreement.
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| 8 | Assignment
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| 8.1 | The benefit of this agreement shall not be dealt with in any way by the Client or Webspeed (whether by assignment, sublicensing or otherwise) without the Client or Webspeed's written consent.
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| 9 | Waiver
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| 9.1 | Failure or neglect by either party to enforce at any time any of the provisions in this Agreement shall not be construed as, nor shall be deemed to be a waiver of that party's rights hereunder. Nor will it affect in any way the validity of the whole of any part of this Agreement, nor prejudice the party's rights to take subsequent action.
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| 10 | Severability
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| 10.1 | In the event that any of these terms, conditions or provisions shall be determined invalid, unlawful or unenforceable to any extent, such term, condition or provision shall be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.
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| 11 | Webspeed Limited's Rights
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| 11.1 | Any express statement of a right of Webspeed under this Agreement is without prejudice to any other right of Webspeed expressly stated in this Agreement or arising at law.
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| 12 | Entire Agreement
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| 12.1 | The Agreement constitutes the entire agreement between the parties for the subject matter referred to herein. Any prior arrangements, agreements, representations or undertakings are superseded. No modification or alteration of any clause of this Agreement will be valid except in writing signed by each party.
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| 13 | Disputes
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| 13.1 | Any dispute arising as to any matter provided for in this document or its implementation is to be referred in the first instance to the chief executives of the respective parties who must endeavour to resolve such dispute in the spirit of achieving broad equity in respect of the agreement and its purposes.
Failing agreement between them, but only as a last resort if such agreement is not possible, the matter in dispute is to be referred to an independent referee appointed by the President of the Wellington District Law Society, who must promptly resolve such dispute and whose decision on the matter is final and binding on the parties.
In resolving such dispute, the referee is not acting as an arbitrator and, accordingly, the provisions of the Arbitration Act 1996 do not apply. While any such dispute remains unresolved the parties agree to continue the performance of the agreement to the extent that such performance is possible given the nature of the dispute.
Any information or material or settlement proposals disclosed or made during the preceding dispute resolution proceedings are made on a without prejudice basis and the parties agree to use their best endeavours to ensure that all such information, material and proposals and the existence of any dispute between them is kept strictly confidential.
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| 14 | Law
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| 14.1 | The parties hereby agree that this Agreement shall be construed in accordance with New Zealand Law and subject to the exclusive jurisdiction of the New Zealand Courts.
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SECTION (C) - PAYMENT OF FEES
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| 15 | Payment
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| 15.1 | Irrespective of the plan Client has elected to operate under, the Client agrees to pay Webspeed fees for use no later than close of business on the fifth business day following Webspeed invoice date.
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| 15.2 | Should the Client terminate this Agreement for whatever reason, the Client shall remain liable to pay Webspeed all fees and remaining term contract monies due, not excluding any time spent and materials used to date, in addition to any and all costs and expenses incurred by Webspeed as a result of the Client's default, termination or rescheduling of the supply of services to the Client.
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