Opmetrix Terms of Use

These Terms of Use are intended to explain our obligations as a service provider and Your obligations as a customer. Please read them carefully.

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

These Terms are not intended to answer every question or address every issue raised by the use of the Opmetrix Application. Opmetrix reserves the right to change these terms at any time. It is likely the terms of use will change over time. It is Your obligation to ensure that You have read and understood the most recent terms available on the Website.

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By using the Application You acknowledge 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 Application. You are deemed to have agreed to these Terms on behalf of any entity who use the Application.

These Terms were last updated on 17 June 2019 (Version 1.3).

1. DEFINITIONS

“Agreement”

means these Terms of Use.

“License Fee”

means the monthly license fee (excluding any taxes) payable by You in accordance with the fee schedule set in Your signed Purchase Order

“Application”

means the Opmetrix program made available to Your device via the appropriate Application Store as well as the Opmetrix CMS module, also referred to as Opmetrix HQ module, installed by Opmetrix.

“Confidential Information”

includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Application 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 and any of your staff, contractors, employees authorised with Your authority into the Opmetrix System.

“Intellectual Property Right”

means any patent, trademark, 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.

“Opmetrix”

means Opmetrix Limited and all current and future global subsidiaries of Opmetrix Limited including, without limitation, Opmetrix Pty Ltd (an Australia registered entity.)

The Opmetrix Logo is a registered TradeMark and will be included in the Opmetrix ApplicationF as well as print and email templates.

“Opmetrix CMS, “Opmetrix HQ”

means the web based module utilised by You.

“Subscriber”

“You; Your”

means the User of the Application.

2. USE OF SOFTWARE

Opmetrix grants You the right to access and use the Application. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement.

3. YOUR OBLIGATIONS

3.1.   Payment obligations:

An invoice for the License Fee will be issued each month starting from the commencement date. All invoices will include the License Fee for the proceeding one-month period of use. Part months will be invoiced on a pro-rata basis for the number of remaining days in the month of commencement. Opmetrix will then continue invoicing You monthly until this Agreement, or licenses used, is terminated in accordance with clause 8.

All Opmetrix invoices will be sent to You, or to a Billing Contact whose details are provided by You, by email. You must pay or arrange payment of all amounts specified in any invoice by the due date for payment and are payable within 10 days of the invoice date. You are responsible for payment of all local taxes in addition to the License Fee.

3.2.   General obligations:

You must only use the Application for Your own lawful business purposes, in accordance with these Terms of use.You may use the Application 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 terms of this Agreement.

3.3.   Access conditions:

You must ensure that all usernames and passwords required to access the Applications are kept secure and confidential. You will reset Your password and take all other actions that Opmetrix reasonably deems necessary to maintain or enhance the security of Opmetrix’s computing systems and Your access to the Applications. As a condition of these Terms, when accessing and using the Application, You must:

3.3.1.      not attempt to undermine the security or integrity of Opmetrix’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;

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

3.3.3.      not attempt to gain unauthorised 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 Application is hosted;

3.3.4.      not transmit, or input into the Application and/or Opmetrix CMS, 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

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

3.4.   Usage Limitations:

Use of the Application may be subject to limitations. Any such limitations will be advised.

3.5.   Communication Conditions:

As a condition of these Terms, You must not use any electronic communication method for posting or disseminating any material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).

GDPR. The EU General Data Protection Regulation (GDPR) came in to force on 25th May 2018.Where applicable, You must ensure that all data is processed in a fair and transparent manner such that it does not breach any personal rights of your employees

 

3.6.   Indemnity.

You indemnify Opmetrix against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have with Opmetrix.

4. CONFIDENTIALITY AND PRIVACY

4.1.   Confidentiality:

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

4.1.1.      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.

4.1.2.      Each party’s obligations under this clause will survive termination of these Terms.

4.1.3.      The provisions of clauses 4.1.1 and 4.1.2 shall not apply to any information which:

4.1.3.1.            is, or becomes, public knowledge other than by a breach of this clause;

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

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

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

4.2.   Privacy:

Opmetrix maintains a privacy policy that sets out the parties’ obligations in respect of personal information. You should read that policy at Privacy Policy and You will be taken to have accepted that policy when You accept these Terms.

5. INTELLECTUAL PROPERTY

5.1.   General:

Title to, and all Intellectual Property Rights in the Application, and any documentation relating to the Application remain the property of Opmetrix.

5.2.   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 Opmetrix License Fees when due. You grant Opmetrix 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 Application and for any other purpose related to provision of services to You.

5.3.   Backup of Data:

You must maintain copies of all Data inputted into the Application. Opmetrix adheres to its best practice policies and procedures to prevent data loss, however does not make any guarantees that there will be no loss of Data. Opmetrix expressly excludes liability for any loss of Data no matter how caused.

5.4.   Third-party applications.

Opmetrix shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.

6. WARRANTIES AND ACKNOWLEDGEMENTS

6.1.   Authority:

You warrant that where You have registered to use the Application 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 Application 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.

6.2.   Acknowledgement:

You acknowledge that:

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

6.2.2.      Opmetrix has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Application on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:

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

6.2.2.2.            You are responsible for authorising any person who is given access to information or Data, and You agree that Opmetrix 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

6.2.2.3.            You will indemnify Opmetrix against any claims or loss relating to:

6.2.2.3.1.                  Opmetrix’s refusal to provide any person access to Your information or Data in accordance with these Terms,

6.2.2.3.2.                  Opmetrix’s making available information or Data to any person with Your authorisation.

6.2.3.      The provision of, access to, and use of, the Application is on an “as is” basis and at Your own risk.

6.2.4.      Opmetrix does not warrant that the use of the Application will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Application, 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 Application. Opmetrix is not in any way responsible for any such interference or prevention of Your access or use of the Application.

6.2.5.      It is Your sole responsibility to determine that the Application meets the needs of Your business and is suitable for the purposes for which it is used.

6.2.6.      You remain solely responsible for complying with all applicable accounting, tax and other laws. It is Your responsibility to check that storage of and access to your Data via the Application will comply with laws applicable to you (including any laws requiring you to retain records).

6.3.   No warranties:

Opmetrix gives no warranty about the Application. Without limiting the foregoing, Opmetrix does not warrant that the Application 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.

6.4.   Consumer guarantees:

You warrant and represent that You are acquiring the right to access and use the Application 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 Application or these Terms.

7. LIMITATION OF LIABILITY

7.1.   To the maximum extent permitted by law, Opmetrix excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, 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 Application

7.2.   If You suffer loss or damage as a result of Opmetrix’s negligence or failure to comply with these Terms, any claim by You against Opmetrix arising from Opmetrix’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the License Fees paid by You in the previous 12 months.

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

8. TERMINATION

8.1.   License Fees

These Terms will continue for the period covered by the License 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 License 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. If You terminate these Terms You shall be liable to pay all relevant License Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms.

8.2.   Breach:

If You:

8.2.1.      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;

8.2.2.      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

8.2.3.      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,

Opmetrix may take any or all of the following actions, at its sole discretion:

8.2.4.      Terminate this Agreement and Your use of the Application;

8.2.5.      Suspend for any definite or indefinite period of time, Your use of the Application;

8.2.6.      Suspend or terminate access to all or any Data.

8.2.7.      Take either of the actions in sub-clauses (8.2.4), (8.2.5) and (8.2.6) of this clause 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 License Fees due in relation to any of Your Billing or any of Your Organisations (as defined at clause 3) is not made in full by the relevant due date, Opmetrix may: suspend or terminate Your use of the Application, the authority for all or any of Your Organisations to use the Application, and/or Your rights of access to all or any Data.

8.3.   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 of this Agreement You will:

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

8.3.2.      immediately cease to use Application.

Expiry or termination:

Clauses 3.1, 3.7, 4, 5, 6, 7, and 8 survive the expiry or termination of these Terms.

HELP DESK

Technical Problems:

In the case of technical problems associated with Opmetrix, please contact our Service Desk on the numbers listed below;

64 3 374 6490          New Zealand

61 2 8210 5174         Sydney

61 3 9018 7995         Melbourne

61 7 3040 4428        Queensland

61 8 7200 3088        Western, South Australia & Northern Territory

The Service Desk is manned during the hours of 08:30 to 18:00 New Zealand time, Monday to Friday except public holidays. Outside of these hours you are able to leave a voice message or alternately you can email support@opmetrix.com.

After Hours Support

After hours voice messages and emails to the Service Desk team will be responded to at our earliest convenience however may not be replied to until the next business day.

Support Exemptions

Service Desk support will cover troubleshooting of hardware, software and network connectivity as related to the usage of Opmetrix. The following is a list of support requests not covered by the Service Level Agreement and will incur additional charges.

Server Shift (customer supplied Opmetrix server, where a new server is replacing an old)
Data loss recovery
Opmetrix customization

In these instances, an estimated cost will be provided to the customer and your authorization by email is required before commencement of work.

Server Platform Support

Where You provide the server to which Opmetrix is installed, You are responsible for server management, Anti-virus\Malware protection and data protection via regular backup strategies.

Where Opmetrix is provided via an Opmetrix Cloud Services server, Opmetrix is responsible for server management.

GENERAL

Entire agreement:

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

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.

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.

No Assignment:

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

Governing law and jurisdiction:

If the information or Data You are accessing using the Application is solely that of a person who is a tax resident in New Zealand or Australia at the time that You accept these terms then New Zealand or Australia law governs this Agreement and You submit to the exclusive jurisdiction of the courts of New Zealand or Australiafor all disputes arising out of or in connection with this Agreement. If the information or Data You are accessing using the Application is solely that of a person who is a tax resident in Australia at the time that You accept these terms then Australian law governs this Agreement and You submit to the exclusive jurisdiction of the courts of Australia for all disputes arising out of or in connection with this Agreement.

For all Opmetrix Sites trading outside of New Zealand and Australia:

With respect to any legal action or proceedings which may be brought with respect to these Terms and Conditions or any transaction contemplated by these Terms and Conditions (each, a Relevant Action), each party irrevocably:

submits to and accepts, for itself and in respect of its assets, generally and unconditionally the non-exclusive jurisdiction of courts exercising jurisdiction in New Zealand in connection with matters concerning these Terms and Conditions; and (b) waives any objection it may have now or in the future to the venue and any claim it may have now or in the future that the Relevant Action has been brought in an inconvenient forum.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 this Agreement will be binding on the parties.

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 Opmetrix must be sent to admin@opmetrix.com or to any other email address notified by email to You by Opmetrix. Notices to You will be sent to the email address which You provided when setting up Your access to the Application.

Rights of Third Parties:

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

End.