Terms of use

Created by Rocky Webster, Modified on Wed, 16 Aug, 2023 at 12:07 PM by Rocky Webster

Effective from 9 April 2020

Agreement
1. These Terms specify the agreement between You and FinCap regarding the Services. They set out Our obligations as a service provider and Your obligations as a customer. Please read them carefully.
2. These Terms apply from the time that FinCap provides You with access to the Services. By using the Services You acknowledge that You have read and understood and agree to be bound by these Terms.
3. If You are using the Services on behalf of a business or entity, You represent to Us that You have authority to bind that business or entity to these Terms and that the business or entity accepts these Terms.
4. If You are using the Services on behalf of a business or entity, You are responsible for that business’ or entity’s personnel in relation to the Services.
5. The Services will be automatically renewed on an annual basis subject to Your right to cancel Your account or terminate the Services in accordance with clause 7 and Our right to suspend the Services or terminate the Terms in accordance with clause 8.
6. Whilst FinCap prohibits unauthorized conduct and content on the Services as indicated below, You may be exposed to such materials and You agree to use the Service at Your own risk.

Access to Services
1. FinCap grants You the right to access and use the Services. This right is non-exclusive, non-transferable, and limited by and subject to these Terms.

Changes to the Services
1. FinCap may modify the Services, the FinCap Materials and Technology and/or the manner in which the Services are delivered at any time. We will notify You if We make a significant change to the Services.

Restrictions on Use
1. You must only use the Services for Your own lawful purposes, and in accordance with these Terms and any notice sent by FinCap or condition posted on the Website.
2. You must not operate or use the Services if You are under the age of 16.
3. As a condition of access, when accessing and using the Services You must:
  1. not collect or attempt to collect any information or communication about any other users of the Service including by monitoring or by intercepting any process or communication initiated by the Service;
  2. not attempt to undermine the security or integrity of FinCap’s computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
  3. not attempt to gain unauthorized access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
  4. not transmit, or input into the Services, any files that may damage any other person's computing devices or software (including by introducing any malicious software or code);
  5. not input into the Services any content that may be offensive, or material or data in violation of any law (including data or other material protected by Intellectual Property Rights which You do not have the right to use);
  6. not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services; and
  7. not grant or assign rights in the Services in any way.

Fees
1. The Services are made available to You free of charge unless otherwise agreed by the Parties in writing.

Your Account Information
1. You agree to provide us with accurate and complete registration and account information and to maintain and promptly update that information in the event of any changes to ensure it is current at all times.
2. You agree to keep Your login details confidential and secure and will not share them with others.
3. You are solely responsible for all activity in connection with access to the Services through Your account or using Your login.
4. If You know or suspect that Your login information has or is likely to become used in an unauthorized way You must immediately change Your password. If You are unable to change Your password, You must immediately notify FinCap. We may request that You change Your password(s) in connection with the Services at any time, and You will promptly comply with any such request and all reasonable directions We issue in relation to the Services.

Cancellation
1. You can cancel Your account and/or terminate the Services at any time by email sent to clientvoices@fincap.org.nz.

Suspension and Termination
1. FinCap may, at its sole discretion terminate these Terms and/or Your use of the Services; or suspend for any definite or indefinite period of time, Your access to and use of the Services.
2. Where We take any action under clause 8.1, We will promptly notify You.

Consequences of Termination
1. Termination of these Terms is without prejudice to any rights and obligations of the Parties accrued up to and including the date of termination. On termination of these Terms You will immediately cease to use the Services.
2. Clauses 11, 14, 15, 16, 17 and 21 survive the expiry or termination of these Terms.

Service Availability and Support
1. In the event of an outage, FinCap will act to restore the Services.
2. While FinCap makes all efforts to prevent any disruption to the Services during any update or upgrade, there may be times when the Service is inaccessible for a period of time.
3. FinCap aims to answer most support issues within 48 hours but FinCap makes no guarantee on the period of time before support is provided.
4. In the event that urgent support is required, We will take all practical steps to assist. Email support (clientvoices@fincap.org.nz) is available 9 am - 4 pm, Mon-Fri.

Intellectual Property
1. You acknowledge and agree that FinCap or its licensor is and remains the owner of, and retains all Intellectual Property Rights in the FinCap Materials and Technology, the Services and any derivative works of them. Except for the right to access the Services provided for in these Terms, You do not obtain any rights in the FinCap Materials and Technology, the Services and any derivative works of them.
2. Each Party consents to the other Party's use of its brand for the purpose of promoting the use of FinCap’s services by other potential customers. There is no charge associated with such use and use must be in accordance with any brand use guidelines notified by the owning Party from time to time.

Data
1. You own the rights, title, interest and Intellectual Property Rights in the Customer Data. You grant FinCap the right, for the term of these Terms, to process any Customer Data as permitted by these Terms.
2. For all Customer Data you must ensure:
  1. You process any personal information in the Customer Data in compliance with Applicable Privacy Laws;
  2. You obtain any necessary third-party permissions or consents;
  3. You comply with any applicable third-party license terms; and
  4. The Customer Data does not incorporate any unlawful, illegal, fraudulent or harmful data.
3. FinCap does not pre-screen any content but reserves the right (but not the obligation) to refuse or remove any content available via the Service that violates the Terms.
4. On Your cancellation of Your account or termination of Services in accordance with clause 7 or Our termination of these Terms or Your access to the Services in accordance with clause 8, Your Customer Data will be held for 30 days and then permanently deleted unless applicable law requires retention. We will ensure any sub-processors with access to Your Customer Data will also permanently delete that Customer Data unless applicable law requires retention. Any Customer Data that is retained is subject to the confidentiality provisions of these Terms.
5. FinCap will permanently delete or de-identify Customer Data 30 days after it is soft deleted by You.

Privacy and Security
1. FinCap will only use or disclose the Customer Data for the following purposes:
  1. Registration and administration of Your staff accounts in relation to the Services;
  2. Assisting with access and correction requests; and
  3. Technical support and troubleshooting.
2. FinCap may also use or disclose de-identified Customer Data for statistical and research purposes, including:
  1. Supporting FinCap’s work in advocating for law and policy change;
  2. Improving the Services;
  3. Making fact-based media statements; and
  4. Academic and Government research.
3. FinCap will not attempt to re-identify any individual from Customer Data that has been de-identified. FinCap will ensure any third parties who are provided with de-identified Customer Data for research and statistical purposes will be bound by an equivalent obligation.
4. Taking into account the state of the art, the costs of implementation and the nature of the Services, FinCap will implement appropriate technical and organisational measures to protect Customer Data.
5. In the event of an actual or potential Privacy Breach FinCap will:
  1. Notify You without undue delay and within 24 hours of becoming aware of the actual or potential Privacy Breach;
  2. Provide reasonable information and cooperation to You; and
  3. Take reasonable and necessary measures to mitigate the actual or potential Privacy Breach and/or impact of its effects.
6. You will ensure staff permissions are regularly reviewed and changed as appropriate.

Confidentiality
1. Each Party's obligations under this clause will survive termination of these Terms. Unless the relevant Party has the prior written consent of the other or unless required to do so by law:
  1. Each Party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither Party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms;
  2. Each Party will inform all its employees, contractors and/or sub-processors engaged in processing the Confidential Information of the confidential nature of the Confidential Information; and
  3. Each Party will ensure that all such persons or parties referred to in 14.1.2 have signed an appropriate confidentiality agreement, are otherwise bound to a duty of confidentiality, or are under an appropriate statutory obligation of confidentiality.
2. Clause 14.1.1 will not apply to any information which:
  1. Is or becomes public knowledge other than by a breach of this clause;
  2. Is received from a third Party who lawfully acquired it and who is under no obligation restricting its disclosure;
  3. Is in the possession of the receiving Party without restriction in relation to disclosure before the date of receipt from the disclosing Party; or
  4. Is independently developed without access to the Confidential Information.

Warranties
1. Each Party warrants:
  1. It has full power, capacity and authority to execute, deliver and perform its obligations under these Terms; and
  2. Once executed, these Terms constitutes legal, valid and binding obligations and is enforceable in accordance with its terms.

Warranty Limitations
1. Other than the warranties in clause 15.1, FinCap makes no other warranty, representation or undertaking whatsoever in respect of the Services, including that FinCap does not warrant that the Services or any data will meet Your requirements or that they will be suitable for any particular purpose, will be compatible with any application, program or software not specifically identified as compatible or will be secure, uninterrupted or error-free. In addition, except where FinCap is liable under the Applicable Privacy Law, FinCap provides no guarantee or warranty in relation to data loss or data breaches.
2. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including warranties of merchantability, fitness for purpose, title and non-infringement.
3. The Consumer Guarantees Act 1993 does not apply to these Terms.

Limitation of Liability
1. Your use of the Services is at Your sole risk. The Services are provided on an "as is" and "as available" basis. To the greatest extent possible in accordance with applicable laws, We specifically disclaim any liability (whether based in contract, tort, strict liability or otherwise) for any direct, indirect, incidental or consequential damages arising out of or in any way connected with the access to or use of the Services.
2. In all cases where Our liability is not excluded:
  1. Our liability is limited to $100; and
  2. We will not be liable for any indirect, incidental, special or consequential damages, (including loss of profit, business, revenue, goodwill, anticipated savings, information or data).
3. Your only right with respect to dissatisfaction or problems with the Service is to cease to access and to use the Service.

Indemnity
1. You indemnify FinCap against all claims, costs, damage and losses arising from Your breach of any of these Terms or any obligation You may have to FinCap, including any third party claims and any costs relating to the recovery of any fees that are due but have not been paid.

Revisions
1. We may amend these Terms at any time without notice, by posting the revised version on the Website, by notifying you in accordance with clause 20 or by communicating it to You through the Services. Revised terms will be effective from the time they are posted, but will not apply retroactively. Your continued use of the Services after the posting of revised terms constitutes Your acceptance of such revised terms.

Notices
1. FinCap will deliver all notices under these Terms by email sent to the email address used by You to register for the Services. You will deliver any notice by email sent to clientvoices@fincap.org.nz.

Miscellaneous
1. Entire agreement: These Terms and the terms of any other notices or instructions We give to You under these Terms constitute the entire agreement between You and FinCap and govern Your use of the Services. These Terms supersede any prior agreements or earlier versions of these Terms between You and FinCap for the use of the Services as of the effective date indicated at the beginning of these Terms.
2. Delays: Neither Party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
3. No Assignment: You may not assign or transfer any rights to any other person without FinCap’s prior written consent.
4. Waiver: The failure by any Party to enforce any provisions of these Terms at any time shall not operate as a waiver of that provision in respect of the particular act or omission or any other act or omission.
5. Governing law: These Terms are governed by the laws of New Zealand, and each Party irrevocably submits to the non-exclusive jurisdiction of the New Zealand courts.
6. Interpretation: In these Terms, unless the context otherwise requires:
  1. The singular includes the plural and vice versa;
  2. A reference to materials means a reference to materials of any kind whether in the form of documentation, software or otherwise;
  3. A reference to either Party includes reference to its successors and permitted assigns and (where the context permits) its personnel and representatives;
  4. Any agreement not to do a thing also constitutes an agreement not to suffer or permit or cause that thing to be done;
  5. The words "includes" and "including" are to be read as being followed by the words "without limitation"; and
  6. A reference to any documentation and the Website includes as varied or substituted.

Defined Terms:

Applicable Privacy Law means all applicable New Zealand privacy law, including the Privacy Act 1993 (and any Act which repeals and replaces the Privacy Act 1993).
Customer Data means any data inputted by You or with Your authority into the Services.
Confidential Information means these Terms, the FinCap Materials and Technology and any other FinCap commercially sensitive materials and proprietary methodologies, the Customer Data, any personal information and material marked “Confidential” or with a similar marking, or information which, by its nature and the circumstances in which it was disclosed, a reasonable person ought to know is confidential.
FinCap, We, Our and Us means National Building Financial Capability Charitable Trust (New Zealand Registered Charity registration number CC54862) trading as FinCap, and includes its successors and assigns, related companies, related charities, officers, directors, trustees, employees and agents.
FinCap Materials and Technology means the materials and technology used by FinCap in relation to the Services including design and architecture, methodologies and tools, software and products.
Intellectual Property Right means any patent, trade mark, trade secret, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
Parties means You and FinCap.

Privacy Breach means, in relation to Confidential Information held by You or FinCap:
1. unauthorised or accidental access to, or disclosure, alteration, loss, or destruction of, the Confidential Information; or
2. an action that prevents the relevant Party from accessing the Confidential Information on either a temporary or permanent basis.

Services means the cloud based client management system called Client Voices supplied by FinCap.
Terms means these terms of service.
Website means FinCap’s website at https://www.fincap.org.nz
You means you as the customer of the Services and Your has a corresponding meaning.