EVA Cloud Terms of Use

These Terms are binding on any use of the Service and apply to You from the time that Designertech provides You with access to the Service.

Designertech reserves the right to change these Terms at any time, effective upon the posting of the modified terms and Designertech will make every effort to communicate these changes to You via email or notification via the EVA Website. It is likely these Terms will change over time. It is Your obligation to ensure that You have read, understood and agree to the most recent Terms available on the EVA Website.

By registering to use the Service you are confirming to Designertech that that You have read and understood these Terms and have the authority to act on behalf of any person for whom You are using the Service. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Service.

1. DEFINITIONS

"Access Fee" means the monthly fee (excluding any taxes and duties) payable by You in accordance with the fee schedule set out on the EVA Website (which Designertech may change from time to time on notice to You).

"Confidential Information" means all information exchanged between the parties in relation to these Terms and the Services, whether in writing, electronically or orally, but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.

"Data" means any data inputted by You or with Your authority into the EVA Website.

“Designertech” means Designer Technology Limited of Auckland, New Zealand.

"EVA Website" means the Internet site at the domain evareceptionist.com.

"Intellectual Property Right" means any patent, trade mark, 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.

"Invited User" means any person or entity, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time.

"Service" means the online Visitor Management services made available (as may be changed or updated from time to time by Designertech) via the EVA Website.

"Subscriber" means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.

“Terms” means these terms of use.

“You" means the Subscriber, and where the context permits, an Invited User.

“Your" has a corresponding meaning.

 2. USE OF SOFTWARE

Designertech grants You the right to access and use the Service via the EVA Website with the particular sites, terminals and features available to You according to Your chosen subscription type. This right is non-exclusive, non-transferable, and limited by and subject to these Terms. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable laws:

1. the Subscriber determines who is an Invited User and what level of user role access to the relevant organisation and Service that Invited User has;

2. the Subscriber is responsible for all Invited Users’ use of the Service;

3. the Subscriber controls each Invited User’s level of access to the relevant organisation and Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason.

3. YOUR OBLIGATIONS

1. Payment:

a.       Invoices:

Work undertaken in the performance of a Project will be invoiced to you on a monthly basis, regardless of whether the work is partially or fully completed. Products supplied will be invoiced on delivery. Rental equipment will be invoiced to you on a monthly basis.  For customers paying the Access Fee by Credit Card, an invoice for the Access Fee will be issued each month; Designertech will continue invoicing You each month until the Service is terminated in accordance with clause 8. All Designertech invoices will be sent by email to You, or to a Billing Contact whose details are provided by You.

b.       Requirement to pay

Payment for monthly services must be made to us by the 20th of the month following the month in which our invoice is issued. Payment for Products must be made by the date specified on the invoice.

c.       When payment is deemed to be made

Payment is made only when funds have cleared through the banking system into our bank account.

d.       No set off, deduction, etc.

Subject to clause 3.1 (e), you agree to pay each invoice in full, without deduction by way of set-off, counterclaim, or any other legal or equitable claim.

e.       Disputed invoices

If you have a bona fide dispute in relation to an item on any invoice, you must pay the undisputed portion of the invoice as soon as it becomes due, and the matter in dispute will then be resolved by agreement within 10 working days if possible, failing that, the parties will enter into a dispute resolution process dispute will be dealt with under clause 9.9 (Disputes).

f.        Interest may be charged on unpaid amounts

If payment is not made in full by the due date (other than where there is a dispute pursuant to clause 3.1 (e) we are entitled to charge you interest until we have received payment in full. Interest on the unpaid overdue balance will be calculated on a daily basis at the interest rate then applicable to an overdraft on our account with our principal bankers, plus 2% p.a. We may also charge you costs (including collection costs and legal costs on a solicitor-client basis) and suspend delivery of further Products and Services until the account (and interest) is paid. The charging of interest does not constitute a grant of credit and is in addition to our other rights and remedies arising out of the default.

g.       Payments may become immediately due

Notwithstanding the above, all payments shall immediately become due to us if:

i.  You refuse to accept delivery of any Products;

ii. You sell or otherwise dispose of any Products which have not been paid for, without our consent;

iii. You become insolvent, or commit any act of bankruptcy;

iv. A receiver, liquidator or statutory manager is appointed over any of your assets or undertaking;

v. You make or attempt to make an arrangement or composition with your creditors

2. General obligations:

You must only use the Service and the EVA Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by Designertech or other terms posted on the EVA Website. You may use the Service and the EVA Website on behalf of others or in order to provide services to others but if You do so you must ensure that You are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all of these Terms that apply to You.

3. Access conditions:

a. You must ensure that all usernames and passwords You require to access the Service are kept secure and confidential. You must immediately notify Designertech of any unauthorised use of Your passwords or any other breach of security relevant to the Services or the EVA Website and Designertech will reset Your password and You must take all other actions that Designertech reasonably requires to maintain or enhance the security of Designertech’s computing systems and networks, the EVA Website, the Services and Your access to the Services.

b. When accessing and using the Services, You must:

i. not attempt to undermine the security or integrity of Designertech's computing systems or networks, the EVA Website, the Services and, where the Services are hosted by a third party, that third party's computing systems and networks;

ii. not use, or misuse, the Services in any way which may impair the functionality of the Services or the EVA Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or the EVA Website;

iii. not attempt to gain unauthorised access to:

• any materials other than those to which You have been given express permission to access on the EVA Website; or

• to the computer system on which the Services are hosted;

iv. not transmit in relation to the Services, or input into the EVA Website, any files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and

v. not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the EVA Website except as is strictly necessary to use either of them for normal customer operation.

4. Usage Limitations:

Use of the Service may be subject to limitations, including but not limited to the number of calls You are permitted to make against Designertech‘s application programming interface. Any such limitations will be advised to You.

5. Indemnity:

You indemnify Designertech against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You have to Designertech, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.

4. CONFIDENTIALITY AND PRIVACY

1. Confidentiality:

Unless the relevant party has the prior written consent of the other or unless required to do so by law:

a. Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms and the Services. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information of the other available to any person, or use that Confidential Information for its own benefit, other than as contemplated by these Terms (including the Privacy Policy).

b. Each party's obligations under this clause will survive termination of these Terms.

c. The provisions of clauses 4.1.a. shall not apply to any information which:

i. is or becomes public knowledge other than by a breach of these Terms;

ii. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

iii. is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or

iv. is independently developed without access to the Confidential Information.

2. Privacy:

Designertech maintains a privacy policy which is accessible through the EVA Website. You should read that policy and You will be taken to have accepted that policy when You accept these Terms.

5. INTELLECTUAL PROPERTY

1. General:

Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of Designertech (or its licensors).

2. Ownership of Data:

Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the EVA Access Fee when due. You grant Designertech a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of the Services to You and the operation of these Terms.

3. Backup of Data:

You must maintain copies of all Data inputted into the Service. Designertech adheres to its common industry practice, policies and procedures to prevent data loss, including a daily system data back-up regime, but Designertech does not make any guarantees that there will be no loss of Your Data. Designertech expressly excludes all liability for any loss of Data no matter how caused.

6. WARRANTIES AND ACKNOWLEDGEMENTS

1. Authority:

You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.

2. Acknowledgement:

You acknowledge that:

 a. You are authorised to use the Services and the EVA Website and to access the information and Data that You input into the EVA Website, including any information or Data input into the EVA Website by any person you have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the EVA Website and the Services (whether that information and Data is Your own or that of anyone else).

b. Designertech has no responsibility to any person other than You and nothing in these Terms confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the EVA Website on behalf of or for the benefit of anyone other than yourself:

i. You are responsible for ensuring that You have the right to do so;

ii. You are responsible for authorising any person who is given access to information or Data, and you agree that Designertech has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and

iii. You will indemnify Designertech against any claims or loss relating to:

                i. Designertech’s refusal to provide any person access to Your information or Data in accordance with these Terms; and

                ii. Designertech making available information or Data to any person with Your authorisation.

c. The provision of, access to, and use of, the Services is on an "as is" basis and at Your own risk.

d. Designertech does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Designertech is not in any way responsible for any such interference or prevention of Your access or use of the Services.

e. It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.

           

f. You remain solely responsible for complying with all applicable privacy and other laws. It is Your responsibility to check that storage of and access to your Data via the Software and the EVA Website will comply with laws applicable to you (including any laws requiring you to retain records).

3. No warranties:

Designertech gives no warranty about the Services. Without limiting the foregoing, Designertech does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.

4. Consumer guarantees:

You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the EVA Website or these Terms.

7. LIMITATION OF LIABILITY

1. Subject to and without limiting clause 5.3. and clause 6. if You suffer loss or damage as a direct result of Designertech’s negligence or failure to comply with these Terms, any claim by You against Designertech for this will be limited in respect of any one incident, or series of connected incidents, to the Access Fees paid by You in the previous billing period.

2. Without limiting clauses 5.3., 6 and 7.1.:

a. To the maximum extent permitted by law, Designertech and its staff, directors and contractors exclude all liability and responsibility to You (and any other person) under all legislation, in contract, tort (including negligence), or otherwise arising from the relationship between the relevant parties, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or the EVA Website.

b. If You are not otherwise satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 8.

8. TERMINATION

1. No-fault termination:

These Terms will continue for the period covered by the Access Fee paid or payable under clause 3.1. At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Access Fee when due, unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period.

2. Breach:

If You:

a. breach any of these Terms (including, without limitation, by non-payment of any Access Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;

b. breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 3.4 or any payment of Access Fees that are more than 30 days overdue); or

c. You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction, then Designertech may take any or all of the following actions, at its sole discretion:

d. terminate Your use of the Services and the EVA Website;

e. suspend for any definite or indefinite period of time, Your use of the Services and the EVA Website;

f. suspend or terminate access to all or any Data;

g. take any of the actions in sub-clauses (d), (e) and (f) of this clause 8.2. in respect of any or all other persons whom You have authorised to have access to Your information or Data. For the avoidance of doubt, if payment of any invoice for Access Fees due in relation the use of the Services by You and by anyone that You have authorized to have access to Your information or Data) is not made in full by the relevant due date, Designertech may: suspend or terminate the use of the Services and/or access to all or any information or Data by You and by anyone that You have authorized to have access to Your information or Data.

3. Accrued Rights:

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 You will:

a. remain liable for any accrued charges and amounts which become due for payment before or after termination; and

b. immediately cease to use the Services and the EVA Website.

4. Expiry or termination:

Clauses 3.1, 4, 5, 6, 7, 8 and 9 survive the expiry or termination of these Terms.

9. GENERAL

1. Entire agreement:

These Terms, together with the EVA Privacy Policy and the terms of any other notices or instructions given to You under these Terms, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Designertech relating to the Services and the other matters dealt with in these Terms.

2. Waiver:

If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.

3. 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.

4. No Assignment:

You may not assign or transfer any rights to any other person without Designertech’s prior written consent.

5. Governing law and jurisdiction:

These Terms and our agreement with You is governed by the laws of New Zealand and You submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with these Terms.

6. Severability:

If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of these Terms will be binding on the parties.

7. Notices:

Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Designertech must be sent to eva@designertech.co.nz or to any other email address notified by email to You by Designertech. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.

8. Rights of Third Parties:

A person who is not a party to these Terms has no right to benefit under these Terms, or any right to enforce any provision of these Terms.

9. Disputes:

Representatives

a.       If the parties cannot resolve any dispute concerning these Terms, the Products or the Services, then either party may initiate the dispute resolution procedure set out in this clause 9.9 by giving written notice to the other party and naming its representative. The party receiving the notice must within 10 days give written notice to the other party naming its representative. Each representative must have authority to settle the dispute.

Negotiation

b.       Within 14 days after the parties have been advised of each other’s representatives, the representatives must enter into negotiations to try to resolve the dispute.

Mediation

c.       If the dispute is not resolved within the following 14 days then the parties must immediately refer the dispute to mediation.

d.       The mediation must be conducted in terms of the LEADR New Zealand Inc. Standard Mediation Agreement. The mediation must be conducted by a mediator (and at a fee) agreed by the parties. Failing agreement between the parties, the mediator will be selected and his/her fee determined by the Chair for the time being of LEADR New Zealand Inc.

Arbitration

e.       Any dispute covered by this clause 9.9 which cannot be settled by mediation within 14 days of the matter being referred to mediation, will be submitted to arbitration before a single arbitrator appointed by the President of the New Zealand Law Society, in accordance with the Arbitration Act 1996. The decision of the arbitrator will be final and binding.

Court

f.        Nothing in this clause 9.9 will preclude either party from taking immediate steps to seek urgent equitable relief before a New Zealand Court.  

10. Publicity: 

You hereby consent to inclusion of your name and logo in client lists that may be published as part of EVA Receptionist’s marketing and sales efforts.

PRIVACY AND INFORMATION POLICY

This Privacy and Information Policy (Policy) outlines how Your Information is collected as a result of You using this Website and the EVA Service and the purposes for which that Information is used or disclosed to others. This Policy forms part of the Terms of Use and should be read in conjunction with those Terms of Use.

By agreeing to the Terms of Use You will also be agreeing to this Policy and this Policy will apply to You from the time You have access to the EVA Service.

For additional information about the EVA Service, please review the Terms of Use.

Definitions:

The terms that are capitalised in this Policy are defined in the Terms of Use or as set out below:

“Information” means any information in any form and includes Personal Information and Data.

 “Personal Information” means information about an identifiable natural person as defined in the Privacy Act 1993.

No selling or renting of Your Personal Information:

Designertech does not sell or rent Your Personal Information to others.

How Your Information is collected:

EVA collects Your Information through Your use of the Service and the Website, including your registration details and information relating to Your use of the Website and the content You access.

Purpose, use and disclosure of Your Information:

Your Information will be collected, used and disclosed for the following purposes:

To provide You with the Service;

To verify Your identity for the purpose of providing You with access to, and use of, the Service;

To enforce or apply the Terms of Use;

To protect the rights, property, or safety of Designertech and its staff, Subscribers, or any other persons;

For internal research purposes;

To promote or market Designertech products and services to You;

For the conduct of proceedings before any court or tribunal;

To prevent or lessen a serious threat to public health or public safety; and

For any other purpose that You authorise.

Designertech may be required by law to disclose Your Information to Government agencies. Government agencies with statutory roles enabling them to request Information from us include the New Zealand Police, Inland Revenue Department and Ministry of Business, Innovation, and Employment. You can contact Designertech to ask whether Your Information has been provided to any Government agency.

Where Designertech contracts third parties to undertake various services, we may provide those third parties with Information required to fulfil those services. Designertech may also use third party customer relationship management services to manage customer communications and generate reports for internal use. We will require any third party to undertake strict precautions to protect any Personal Information against unauthorised use or disclosure.

Email:

By accepting the Terms of Use, You agree to Designertech sending You emails, including emails about Designertech’s products and services, newsletters, customary business communications and any other emails You elect to receive.

Designertech will immediately remove Your email address from any mailing list upon Your request. Designertech newsletters will contain clear and obvious instructions for how You can remove Yourself from the mailing list.

EVA does not store your credit card details:

If you choose to pay for the Services by credit card, Your credit card details are not stored by the Website and cannot be accessed by Designertech staff.

Your credit card details are encrypted and securely stored by Direct Payments Solutions Ltd (Payment Express) to enable Designertech to automatically bill your credit card on a recurring basis. Credit card payments are received by Designertech.

Review Direct Payment Solution’s Privacy Policy (http://www.paymentexpress.com/about/about_paymentexpress/privacy_policy.html)

This Policy may be updated from time to time:

Designertech reserves the right to change this Policy at any time. Any amended policy is effective upon the date on which the amended policy is posted on the Website. Designertech will make reasonable efforts to communicate any changes to You via email or notification via the Website.