SMART PUZZLE

TERMS AND CONDITIONS OF SERVICE

PLEASE READ THESE SMART PUZZLE TERMS AND CONDITIONS OF SERVICE CAREFULLY.

These Smart Puzzle Terms and Conditions of Service set out the terms and conditions upon which Smart Puzzle Limited makes available the Smart Puzzle asset management service.

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

IF YOU ARE REGISTERING AS A USER:

If your organisation has subscribed to Smart Puzzle and you are registering with us as a user of Smart Puzzle under that subscription, then:

  • by clicking "I accept and have read the Smart Puzzle Terms and Conditions of Service" during the user registration process, you will be deemed to have accepted these Smart Puzzle Terms and Conditions of Service; and
  • if you do not accept these Smart Puzzle Terms and Conditions of Service, you may not be able to use or access Smart Puzzle.

IF YOU ARE A SUBSCRIBER:

If you are registering yourself, or a company or other organisation, to be a subscriber of Smart Puzzle, then:

  • you warrant and represent to us that you will be bound by, or that you have authority to bind that company or other organisation to, these Smart Puzzle Terms and Conditions of Service;
  • upon your clicking "I accept and have read the Smart Puzzle Terms and Conditions of Service" during the subscription process, you or your company or other organisation (as the case may be) will be deemed to have accepted these Smart Puzzle Terms and Conditions of Service; and
  • if you do not accept these Smart Puzzle Terms and Conditions of Service either yourself or on behalf of your company or other organisation, your authorised users or that company's or organisation’s authorised users may not be able to use or access Smart Puzzle.

  1. DEFINITIONS

    1. For the purposes of these Conditions, the following terms have the following meanings:
      • Conditions means these Smart Puzzle Terms and Conditions of Service;
      • Content means the information and content available via Smart Puzzle;
      • Smart Puzzle means the Smart Puzzle asset management service provided by us (as may be modified, enhanced, developed or improved from time to time) and accessible via https://app.smartpuzzle.co.nz/Account/Login or through www.smartpuzzle.co.nz or www.hiresmart.co.nz or such other website as we may determine from time to time;
      • Subscriber means a person, company or other organisation that has a Smart Puzzle subscription with us;
      • Subscriber Data means any data, reports or other information uploaded to Smart Puzzle or generated via Smart Puzzle, that is specific to the Subscriber;
      • Subscription Fee means a monthly subscription fee for the provision of Smart Puzzle as notified by us to the Subscriber or agreed between us and the Subscriber in writing prior to commencement of the Subscriber's subscription, as may be increased from time to time pursuant to clause 4.2;
      • User means a person who registers with us as a user of Smart Puzzle as authorised by the Subscriber; and
      • We or our or us means Smart Puzzle Limited.

  2. LICENCE TO USE SMART PUZZLE

    1. We grant to each User a licence to access and use Smart Puzzle solely in connection with the asset management and other business activities of the Subscriber. This licence is non-exclusive, non-transferable and non-sublicensable.
    2. The Subscriber's subscription may include limits on the number of Users who may register to use and access Smart Puzzle. The Subscriber's subscription may also include caps on the maximum amount of data that can be stored on Smart Puzzle. We may also impose restrictions on what particular types of Users may do, and what information they may access, when they use Smart Puzzle.
    3. The Subscriber will be responsible to us for all acts or omissions of its Users when they access or use Smart Puzzle, as if they were the acts or omissions of the Subscriber.
    4. Each User is responsible for keeping their registration login information, including their User account name and password issued to them, secret and secure. A User must not permit any other person to use their login information. A User must immediately notify us of any unauthorised use of their login information, and in such event we may take such actions as we deem reasonably necessary in order to maintain or enhance the security of Smart Puzzle, including by temporarily suspending the Subscriber's subscription or resetting any or all User passwords.
    5. Each User is responsible for making sure that their user registration details are kept up to date and are accurate. We are not responsible for any loss, damage, cost or expense arising as a result of any failure by a User to keep their user registration details up to date, or as a result of any inaccurate information provided by a User.
    6. We reserve the right to cancel or suspend any User’s access to or use of Smart Puzzle at any time and for any reason. We will endeavour to notify the Subscriber upon any User’s access or use being cancelled or suspended.
    7. To use Smart Puzzle, Users will need compatible devices and operating systems, and internet access. It is the Subscriber's responsibility to ensure that its software, hardware and systems are able to operate with Smart Puzzle, and meet any minimum specifications that may be notified by us to the Subscriber from time to time.
    8. The Subscriber must ensure that its information systems and networks on which Smart Puzzle will be accessed are reasonably secure, and that security measures are in place to prevent unauthorised access to Smart Puzzle to at least a reasonable industry standard.
    9. Users must not attempt to do any of the following things:
      1. use Smart Puzzle in any unlawful manner;
      2. damage, disable, interfere with or harm Smart Puzzle, or any network or system underlying or connected to Smart Puzzle, in any way whatsoever;
      3. modify, adapt, translate, reverse engineer or decompile any part of Smart Puzzle, or any software comprising or underlying Smart Puzzle, or in any manner attempt to derive the source code of any such software;
      4. use any robot, spider, site search/retrieval application, or other device or technological process to retrieve or index any portion of Smart Puzzle, except as expressly authorised by us in writing; or
      5. encourage, assist or direct any other person to do any of the things set out in paragraphs (a) to (d) above.
    10. The Subscriber and its Users acknowledge that:
      1. Smart Puzzle is of significant commercial value to us and our licensors;
      2. except to the extent we have otherwise agreed with the Subscriber in writing, these Conditions will govern the use by the Subscriber and its Users of all modified, enhanced, developed or improved versions of Smart Puzzle, regardless of whether or not the Subscriber has paid us to make those modifications, enhancements, developments or improvements;
      3. all copyright, trade marks, database rights and other intellectual property rights in Smart Puzzle (including in any modified, enhanced, developed or improved versions of Smart Puzzle, subject to clause 2.10(b)) are or will be owned by us or our third party licensors, and neither the Subscriber nor its Users will in any way question or dispute the ownership by us or our third party licensors of such intellectual property rights; and
      4. except as expressly stated in these Conditions, no right or licence is granted to the Subscriber or its Users in relation to Smart Puzzle or any Content.
    11. Neither the Subscriber nor its Users may do any of the following:
      1. copy any of the Content unless expressly permitted by us to do so;
      2. compile or extract the Content for the purpose of making such information available to others (whether as a directory or otherwise) with a view to a profit or for a fee or other consideration; or
      3. use any proprietary trade mark of us or our licensors in a manner that is reasonably considered by us or our licensors to be a misuse or appropriation of that trade mark.
    12. Nothing in clauses 2.10 or 2.11 will:
      1. give us any rights or interests in any Subscriber Data, other than to the extent necessary to provide Smart Puzzle (and the Subscriber grants to us a worldwide, royalty-free, sub-licensable, non-exclusive right and licence to use, copy, distribute and otherwise exploit the Subscriber Data for the term of the Subscriber’s subscription for Smart Puzzle to the extent necessary to provide Smart Puzzle), and any such rights or interests will remain with the Subscriber; or
      2. limit the Subscriber's right to use, copy or otherwise exploit its Subscriber Data in any way that it may see fit.

  3. SERVICE AVAILABILITY

    1. We will use reasonable endeavours to keep Smart Puzzle operational 24 hours a day, seven days a week. However, no warranty or representation is given that Smart Puzzle will be uninterrupted or error-free.
    2. Any bugs, errors, defects or unexplained outages within Smart Puzzle that a User becomes aware of (Faults) should be reported by telephone or email to our helpdesk. Details of our helpdesk will be specified on the website on which Smart Puzzle is made available. When notifying us of a perceived Fault, the User should (so far as they are able) provide us with a documented example of the perceived Fault. No warranty or representation is given by us that any bugs, errors, defects or unexplained outages within Smart Puzzle will be responded to or resolved within any particular time period, or that any resolution to a particular issue will be possible or practical from a technical or business administrative perspective.
    3. The Subscriber and its Users acknowledge that:
      1. the operation and availability of the systems and networks used by the Subscriber and its Users to access Smart Puzzle, such as computer systems and the Internet, may be unpredictable and prevent use of or access to Smart Puzzle; and
      2. there may be occasions where some or all of Smart Puzzle is unavailable, for example to permit maintenance, or due to unexpected or uncontrollable outages. We will use reasonable endeavours to notify Users in advance of any significant planned service outages.

  4. PAYMENT

    1. In consideration for the grant of licence under clause 2.1 and the provision of Smart Puzzle to Users on behalf of the Subscriber, the Subscriber agrees to pay to us the Subscription Fee.
    2. We may increase the Subscription Fee at any time, upon giving the Subscriber at least 30 Days prior written notice.
    3. There are a number of different Smart Puzzle subscription types, based on the number of Users permitted to use Smart Puzzle, or based on the maximum amount of data that can be stored on Smart Puzzle. We may additionally offer subscription types based on other parameters, for example the features and functionality within Smart Puzzle made available to particular Users or the Subscriber.
    4. The Subscriber will select the appropriate subscription type for the Subscriber when it first applies to subscribe to Smart Puzzle. The Subscriber can change its subscription type at any time (for example by selecting a subscription type that allows the Subscriber to have additional Users or a subscription type that changes the Subscriber’s data storage cap), but any such change may result in a change in the Subscription Fee. Any resulting increase in the Subscription Fee will take immediate effect, while any resulting reduction in the Subscription Fee will take effect from the start of the next monthly subscription period.
    5. Unless we have agreed otherwise with the Subscriber in writing:
      1. we will issue an invoice for the Subscription Fee on or before the start of each month of the Subscriber's subscription for Smart Puzzle, for the duration of the Subscriber's subscription; and
      2. the Subscriber will pay all invoices for the Subscription Fee within 30 days following receipt.
    6. We will send invoices for the Subscription Fee by email or other means agreed between us and the Subscriber, to the person designated by the Subscriber to receive invoices for the Subscription Fee.
    7. All Subscription Fees:
      1. are exclusive of any goods and services taxes, sales taxes or value added taxes which, where applicable, will be payable by the Subscriber to us in addition on the rendering by us of an appropriate tax invoice;
      2. will be paid by the Subscriber in New Zealand dollars to the credit of a bank account to be designated in writing by us; and
      3. will be paid by the Subscriber in full by the due date for payment, without set-off or deduction of any kind, failing which:
        1. we may charge the Subscriber interest on the outstanding amount at an annual rate equivalent to the standard interest rate charged by our bankers for commercial overdrafts, plus 3%. Interest will be calculated on a daily basis from the due date until the date of actual payment; and
        2. the Subscriber will reimburse us for all costs and expenses we incur in connection with any actions or proceedings for recovery of such amounts, including all reasonable accounting costs, legal and attorney costs (on a solicitor and own client basis), court costs, and debt collection costs.

  5. PRIVACY POLICY

    1. In the course of providing Smart Puzzle we may collect, use, disclose, and hold personal information about identifiable individuals, as well as other data about the Subscriber and its business affairs, employees, Users, and customers. This information will be used, disclosed and held by us in accordance with our Privacy Policy on page 9 of this document.
    2. The Subscriber and its Users acknowledge that they have read our Privacy Policy (on page 9) and accept its terms and conditions. They acknowledge that our Privacy Policy may be amended or reviewed from time to time and that their continued use of Smart Puzzle will constitute acceptance of any amendments or revisions to our Privacy Policy.
    3. If any User provides us with any personal information about any third party, then the Subscriber and that User warrant to us that the User has obtained all necessary consents and authorisations from that third party to enable us to collect, use, disclose and hold such personal information in accordance with our Privacy Policy.

  6. WARRANTIES AND LIABILITY

    1. We warrant and represent to the Subscriber that:
      1. we are entitled to provide Smart Puzzle subject to the terms of these Conditions; and
      2. to the best of our knowledge, the use and accessing of Smart Puzzle by the Subscriber and its Users will not infringe the copyright or other intellectual property rights of any third party, provided that no such warranty or representation is given to the extent that any such infringement arises as a result of our collection, copying and use of any Subscriber Data in connection with Smart Puzzle.
    2. the Subscriber warrants and represents to us that:
      1. it is acquiring the right to access and use Smart Puzzle 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 provision of Smart Puzzle or these Conditions; and
      2. our collection, copying and use of the Subscriber Data in connection with Smart Puzzle will not infringe the copyright or other intellectual property rights of any third party.
    3. The Subscriber and its Users acknowledge that:
      1. we are not responsible for any loss or corruption of any data or other information contained within or created using Smart Puzzle. The Subscriber is responsible for ensuring its own backup of any data accessed from Smart Puzzle by its Users;
      2. in entering into these Conditions, they do not rely on any representation, warranty, term or condition that is not expressly provided in these Conditions; and
      3. all conditions, warranties or other terms implied by statute or common law are excluded from these Conditions, to the fullest extent permitted by law.
    4. Without limiting the scope of clause 6.3 we do not give any warranty, representation or undertaking:
      1. about the efficacy or usefulness of Smart Puzzle, or about any fitness for a particular purpose or merchantability;
      2. that Smart Puzzle will be free from bugs, defects, errors or outages; or
      3. that any Content generated or accessible via Smart Puzzle will be accurate or complete.
    5. The Subscriber acknowledges that we do not give any warranty or guarantee that the use of Smart Puzzle will ensure compliance by the Subscriber with the Health and Safety at Work Act 2015, or any other health and safety or workplace legislation. Smart Puzzle is one of many tools that can be used by businesses to assist with compliance with their health and safety obligations, but it is the responsibility of the Subscriber to ensure that it complies with those obligations. We are not responsible for any failure to comply with such obligations arising from any use or accessing of, or any inability to use or access, Smart Puzzle.
    6. Without limiting clauses 6.3 to 6.5, our maximum liability to the Subscriber and its Users (whether in contract, tort, negligence or in any other way) arising out of any and all claims under these Conditions or relating to Smart Puzzle, will not in any circumstances exceed in aggregate the total Subscription Fee payable for the month in which such liability first arose.
    7. In no event will we be liable (whether in contract, tort, negligence or in any other way) to the Subscriber or any User for:
      1. loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of data or wasted management or staff time; or
      2. loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature,
      arising directly or indirectly from Smart Puzzle or these Conditions, even if we had been advised of the possibility of such loss, damage, cost or expense, and even if such loss, damage, cost or expense was reasonably foreseeable by us.
    8. Neither the Subscriber nor any User may bring any proceedings under these Conditions in relation to any act or omission of us, or any breach by us of these Conditions, more than two years following the date the Subscriber or such User (as the case may be) first became aware of the relevant act, omission or breach.
    9. The Subscriber agrees to defend, indemnify and hold harmless us and our officers, employees and agents against any and all liabilities, losses, damages, costs and expenses that may arise as a result of:
      1. any breach by the Subscriber or any of its Users of any of these Conditions; or
      2. any damage or injury to persons or property arising from the Subscriber or any of its Users accessing or using Smart Puzzle.
    10. None of the exclusions or limitations set out in these Conditions is intended to limit or exclude any form of liability that cannot be so limited or excluded under applicable law.

  7. TERM AND TERMINATION

    1. These Conditions will come into effect on the date that we first provide the Subscriber with access to Smart Puzzle via its Users, and will continue in full force and effect until the Subscriber’s subscription has been terminated under clauses 7.2 or 7.3.
    2. The Subscriber may elect to terminate its subscription at any time. To terminate its subscription, the Subscriber must notify us in writing or follow any other steps outlined on the website on which Smart Puzzle is made available for terminating its subscription.
    3. We may elect to terminate the Subscriber's subscription at any time upon giving the Subscriber at least 30 Days prior written notice. We may also elect to terminate the Subscriber’s subscription with immediate effect by giving written notice to the Subscriber if:
      1. the Subscriber or any User of the Subscriber is in breach of these Conditions;
      2. the Subscriber ceases or threatens to cease to carry on all or substantially all of its business or operations, is declared or becomes bankrupt or insolvent, is unable to pay its debts as they fall due, enters into a general assignment of its indebtedness or a scheme of arrangement or composition with its creditors, or takes or suffers any similar or analogous action in consequence of debt;
      3. a trustee, manager, administrator, administrative receiver, receiver, inspector under any legislation or similar officer is appointed in respect of the whole or any part of the Subscriber's assets or business; or
      4. an order is made or a resolution is passed for the liquidation of the Subscriber (other than voluntarily for the purpose of a solvent amalgamation or reconstruction).
    4. In the event of termination of the Subscriber's subscription under clauses 7.2 or 7.3:
      1. we will cease to provide Smart Puzzle, and the Subscriber and its Users will cease to use and access Smart Puzzle;
      2. we will retain any Subscriber Data in our possession for a minimum period of three months following termination, after which time that Subscriber Data may be destroyed or erased. Upon termination of its subscription the Subscriber will no longer be able to access the Subscriber Data via Smart Puzzle, but may request from us a copy of the raw Subscriber Data held by us, subject to paying any additional fees reasonably determined by us in order to cover the time spent by us in preparing such copy. Such copy will be provided in a format reasonably determined by us or otherwise agreed by us and the Subscriber in writing; Efinity will still have access to the information, Smart Puzzle cannot access information held.
      3. we may issue an invoice to the Subscriber for any Subscription Fees not yet invoiced covering the period up until the date of termination of the Subscriber’s subscription (and in the case of any part-month period, such Subscription Fees will be calculated on a pro-rata basis), and the Subscriber will pay such invoice within seven days;
      4. the Subscriber will not be entitled to a refund of any Subscription Fees paid by it;
      5. the provisions of clauses 4.7, 6.1 to 6.10, 7.4, 8.1 to 8.5 and any other clauses intended to survive termination, together with those other provisions of these Conditions that are incidental to, and required to give effect to those clauses, will remain in full force and effect; and
      6. subject to this clause 7.4 and except for any rights and remedies of the parties that have accrued before termination, including for any prior breach of these Conditions, no party will be under any further obligation to another party.

  8. GENERAL

    1. We will not be liable for any failure to provide Smart Puzzle due to an event of Force Majeure. For the purposes of this clause 8.1, Force Majeure includes any inability to obtain supplies or labour, industrial disputes, delays, act of God, fire, flood, storm, adverse weather conditions, or other matters beyond our reasonable control.
    2. These Conditions embody the entire agreement of the parties in relation to the subject matter of these Conditions and supersede all prior understandings, communications and representations between the parties, whether oral or written. The parties acknowledge that they do not rely on any representation, agreement, term or condition that is not set out in these Conditions.
    3. Neither the Subscriber nor any of its Users may assign, transfer or sub-contract any of their rights or obligations under these Conditions, without first obtaining our written consent.
    4. We reserve the right to change these Conditions at any time. In the event of a change, we will endeavour to notify the Subscriber and its Users by email, or by posting a notification of the change on the site where Smart Puzzle is located. The continued use of Smart Puzzle by the Subscriber or its Users following any such changes will be regarded by us as acceptance by the Subscriber or those Users of those changes. No other amendment to these Conditions will be effective unless in writing and signed by an authorised representative of us.
    5. These Conditions will be governed by the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.