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Ubiquity Terms and Conditions

Ubiquity Software Limited ("Ubiquity") provides marketing and research products ("Products") and Services ("Services") collectively called Ubiquity Engage and Ubiquity Insight. The Products and Services are available for use by You ("You") or ("Your") or ("Member").

The Products and Services are provided to You under the terms and conditions set forth in these Terms and Conditions of Use and any rules or policies otherwise set forth on the website http://www.ubiquity.co.nz ("Site"), or notified to You from time to time by Ubiquity ("Us") or ("We") or ("Our").

The Terms and Conditions of Use set forth below and any rules or policies otherwise set forth on this Site comprise the entire agreement between You and Ubiquity and supersedes any and all prior agreements or understandings between the parties. In the event that there is any conflict between any such rules and policies set forth on the Site and these Terms and Conditions of Use, these Terms and Conditions of Use shall prevail.

Definitions

Confidential Information	Means the information identified in Clause 12;
Intellectual Property Rights	"Intellectual Property Rights" means all existing and future intellectual property rights throughout the world, including rights in relation to any copyright, trade marks (including service marks), inventions (including patents), designs, circuit layouts, trade secrets, trade dress and get up (including the right to apply for registration of any such rights), and any rights in or related to confidential information and know how including the whole or any part of any graphics, text, names, software, processes, music, videos, sounds, pictures, compilations, templates, page layout, design, digital conversion or other material;
Server	Means the server hardware and associated hardware provided or utilised by Us in providing the Products and Services;
Site	Means Our website and all related systems, files, materials, features, components and programs;
Ubiquity Engage and Ubiquity Insight	Means the Products and Services supplied by Us under these Terms and Conditions, including (without limitation) the provision of our proprietary computer software programs for the facilitation of marketing, research and event management activities, together with any documents, forms, templates, information or other materials developed or supplied by Us;
Your Data and Materials	Means any documents, forms, templates, information or other materials uploaded by you to the Server, including without limitation: a) Personnel Information; b) Customer Information; c) Business strategies and records; d) Transaction information; e) Object and Source codes; and f) Charts, diagrams, models and prototypes.

1. ACKNOWLEDGMENT AND ACCEPTANCE

Please read the following Terms and Conditions of Use carefully. By completing the registration process and/or by entering "accept" and clicking on "submit" at various places throughout the Site, You accept and agree to all of the terms and conditions set forth in these Terms and Conditions of Use, including all warranties and promises by You. You hereby acknowledge and warrant that You are 18 years of age or older.

2. PROVISION OF UBIQIUTY ENGAGE AND UBIQUITY INSIGHT

We will use reasonable endeavours to provide and maintain Ubiquity Engage and Ubiquity Insight. You acknowledge and agree that:

(a) Unless otherwise agreed by Us in writing, Ubiquity Engage and Ubiquity Insight does not and shall not include any design, development, modification and maintenance of Your Data and Materials other than that provided by Us as part of providing the Products and Services.
(b) The internetworking communications through Ubiquity Engage and Ubiquity Insight may not be secure and may be subject to interception or loss of data.
(c) You are responsible for Your network security.
(d) We do not guarantee or warrant that Your existing equipment, hardware or software is compatible with the Server.
(e) We will not be responsible for ensuring that You comply with any Intellectual Property Rights, privacy or other laws relating to Your Data and Materials or Your use of Ubiquity Engage and Ubiquity Insight. Such compliance will be Your sole responsibility.
(f) Ubiquity Engage and Ubiquity Insight contain certain system-mandated rules and limitations on its operation and Your use of Ubiquity Engage or Ubiquity Insight is subject to those rules and limitations

3. LICENCE TO USE UBIQUITY ENGAGE AND/OR UBIQUITY INSIGHT

We grant You a non-exclusive, non-transferable licence to use Ubiquity Engage and Ubiquity Insight on the following terms:

(a) You must keep intact all copyright and other proprietary notices on Ubiquity Engage and Ubiquity Insight;
(b) You must not sell, duplicate for reasons other than back up, modify, distribute or create derivative works from Ubiquity Engage or Ubiquity Insight and You must not permit others to do so;
(c) You must comply with these Terms and Conditions of Use; and
(d) You must only use Ubiquity Engage and Ubiquity Insight to manage and control Your own and/or Your clients marketing, research and event management activities
(e) You acknowledge that while all reasonable care has been taken in the production of Ubiquity Engage and Ubiquity Insight, it (or aspects of it) may not be suitable for Your particular circumstances or needs.
(f) Some parts of Ubiquity Engage and Ubiquity Insight may only be viewed on-line and some web pages may be available for download, as specified at the Site. You must not take any steps to defeat any system controls over the downloading of Ubiquity Engage and Ubiquity Insight.

4. YOUR DATA AND MATERIALS

You acknowledge that: (a) You are responsible for the design, development, modification, content, backup and maintenance of Your Data and Materials for use with Ubiquity Engage and Ubiquity Insight;
(b) You are responsible for ensuring that all necessary copyrights and permissions are obtained with respect to Your Data and Materials;
(c) We do not vet or approve Your Data and Materials available through Ubiquity Engage and Ubiquity Insight and that We do not accept any liability with respect to Your Data and Materials;
(d) You grant to Us an irrevocable perpetual licence to reproduce, publish, copy or transmit Your Data and Materials without charge for the sole purpose of supplying the Ubiquity Engage and Ubiquity Insight Products and Services to You; and
(e) You authorise Us to amend or delete any of Your Data and Materials where Your Data and Materials are, or are alleged to be, defamatory, in breach of copyright, illegal or are not appropriate in our opinion to be accessed by or through Ubiquity Engage and Ubiquity Insight.

To the fullest extent permitted by law, You access and use Your Data and Materials at Your own risk.

You accept responsibility for all of Your Data and Materials and indemnify Us against any liability, costs, losses, claims, or damages (including legal fees and disbursements on a solicitor and own client basis) incurred or suffered by Us in relation to Your Data and Materials, including but not limited to claims for defamation, infringement of Intellectual Property Rights or other proprietary rights or breach of privacy or confidence.

You own Your Data and materials. Ubiquity will never claim ownership, attempt to sell or to use Your Data except for the sole purpose of supplying the Products and Services to You.

5. YOUR RESPONSIBILITIES

You must: (a) Ensure that any information which You give to Us relating to Your use of Ubiquity Engage and Ubiquity Insight is complete and accurate (including, without limit, Your Data and Materials);
(b) Follow Our reasonable directions about the use of Ubiquity Engage and Ubiquity Insight;
(c) Use Ubiquity Engage and Ubiquity Insight for lawful purposes only;
(d) Not use Ubiquity Engage and Ubiquity Insight in a way which interferes with or disrupts the Server;
(e) Ensure that anyone else who uses Ubiquity Engage and Ubiquity Insight does so in a manner which is consistent with Your obligations under these Terms and Conditions;
(f) Not interfere with, disrupt or access any part of Ubiquity Engage and Ubiquity Insight, or any data areas on the Server for which You have not been authorised by Us in writing;
(g) Obtain and install at Your expense communication and computer equipment as is necessary to enable You to access Ubiquity Engage and Ubiquity Insight; and
(h) Comply with the operational rules (if any), Acceptable Use Policies (if any) and technical requirements as notified, published or adopted by Us.

6. BACKUP

We will backup Your Data and Materials in accordance with Our procedures for backing up Ubiquity Engage and Ubiquity Insight. In the event of equipment failure or data corruption, We will restore from the last known good backup. In the event of corruption of all of Our backups, or in the event that an old backup is used to restore data, You should be prepared to upload Your Data and Materials to the Service. Accordingly, You agree to maintain a recent copy of Your Data and Materials at Your premises at all times.

7. VARIATION OF UBIQUITY ENGAGE AND UBIQUITY INSIGHT PRODUCTS AND SERVICES

You acknowledge and agree that:

a) We may, with or without notice, modify, delete, or amend the Products or Services and/or Site provided hereunder.
b) We may further modify, delete or amend the Terms and Conditions of Use from time to time, including charging or varying a fee or fees for some Products or Services. In either event, We will notify You of any modification in fees by email or via the Site. If You do not accept the modification, deletion or amendment, You must terminate Your account at that time. Any use of the Site or the Products or Services by You after the notice is posted shall be deemed to be acceptance of the modification, deletion or amendment (as well as all other terms and conditions) to Ubiquity Engage and Ubiquity Insight, the Site or Terms and Conditions of Use.

8. SHARED ENVIRONMENT

Ubiquity Engage and Ubiquity Insight is provided through shared use of the Server with other customers. We will take all reasonable steps to ensure that design problems, errors or outages with any particular customer’s uses of Ubiquity Engage and Ubiquity Insight do not cause damage or outages in Our other customers’ use of Ubiquity Engage and Ubiquity Insight. Both parties acknowledge that:

(a) the risk of such damage and outages cannot be eliminated entirely;
(b) where an outage occurs, the procedure and timing for restoring Ubiquity Engage and Ubiquity Insight will be at Our discretion; and
(c) We may suspend Service to You where, in Our opinion, Your use of Ubiquity Engage and Ubiquity Insight is or is likely to adversely affect Our network or Our ability to supply Ubiquity Engage and Ubiquity Insight to Our other customers.

Provided that any outage or suspension shall be confined to the minimum duration necessary.

9. PAYMENT TERMS

(a) You agree to pay all charges to Your account, including any applicable taxes, at the rates in effect when the charges are incurred.
(b) We may change the fees and charges then in effect, or add new fees or charges, by giving You notice in advance, when the change affects You.
(c) If using a credit card You must provide valid credit card information.
(d) We will keep Your credit card information confidential, and ensure that credit card processing takes place in a secure environment.
(e) We may automatically renew and charge Your account for some Products or Services where You agree to Your credit card being charged.
(f) We reserve the right to terminate Your subscription at any time.

10. SUSPENSION

We may suspend, disconnect or discontinue Ubiquity Engage and Ubiquity Insight in whole or in part at any time without notice and without compensation if in Our reasonable opinion:

(a) it is necessary to safeguard the provision of Ubiquity Engage and Ubiquity Insight or the integrity of the Server;
(b) Ubiquity Engage and Ubiquity Insight or the Server fails or requires modification or maintenance;
(c) there is or has been unauthorised, unlawful or fraudulent use of Ubiquity Engage and Ubiquity Insight or Your use of Ubiquity Engage and Ubiquity Insight is causing or may potentially cause damage or interference to the Server;
(d) it is necessary to comply with a direction, order or request of any government authority or other competent authority; or
(e) You do not comply with any of the terms of these Terms and Conditions of Use.

Provided that the length of any suspension shall be confined to the minimum duration necessary.

11. REGISTRATION & PASSWORD

You shall provide current, complete, accurate information in the registration section of the Site and update and keep such information current as needed.

You shall provide a password in order to access the Products and Services and Your account. You are fully responsible for the safekeeping of Your password and for all use of or access to Ubiquity Engage and Ubiquity Insight by anyone using Your user identification and password.

We may, by notice in writing require you to immediately change any of your user identification or passwords.

You agree to notify Us immediately if You suspect any unauthorized use or disclosure of Your user identification or passwords. We may immediately terminate or suspend user identification or passwords if, in Our discretion, We consider this to be necessary or appropriate (for example, for the reasons described in clause 10)

12. CONFIDENTIAL INFORMATION

(a) All information, data, drawings, specifications, documentation or software which We may have disclosed or given to or may from time to time disclose or give to You relating to Ubiquity Engage and Ubiquity Insight ("the Confidential Information") is proprietary, secret and confidential to Us.
(b) You agree with Us that You will use the Confidential Information solely in accordance with the provisions of these Terms and Conditions and that You will not at any time during or after the expiry or termination of Your use of Ubiquity Engage and Ubiquity Insight, disclose the Confidential Information, whether directly or indirectly, to any third party without Our prior written consent.

13. INTELLECTUAL PROPERTY

(a) Title, ownership, rights, and all Intellectual Property Rights in any material provided or made available by Us, (including but not limited to Our software, graphics, design, layout, processes, compilations, templates and documentation that is incorporated into Ubiquity Engage and Ubiquity Insight, the Server or the Site) shall remain at all times with Us. You agree that You will not, at any time, in any way question or dispute the ownership by Us of these Intellectual Property Rights.
(b) You are responsible for obtaining all necessary permissions, authorisations, licences and consents in relation to the use of any textual, graphical, audio or other materials (including software) in Your Data and Materials, in relation to which a third party owns any Intellectual Property Rights.

14. PRIVACY

(a) We are committed to Our policy of protecting the privacy and confidential nature of Your Data and Materials. For more information on Ubiquity's Privacy Policy view the Privacy Policy which is located on the Site.
(b) We will not divulge or communicate or otherwise disclose any of Your Data and Materials, in whole or part to any third party or make use of any of Your Data and Materials without Your prior written consent.
(c) We agree that, except for systematic backups or automatic data replication as part of usual business processes, We will not make or permit the making of any copies or reproductions of Your Data and Materials without Your prior written consent.
(d) Upon termination of Your use of Ubiquity Engage and Ubiquity Insight, or at Your request, We will immediately destroy and/or delete Your Data and Materials uploaded by You to the Server except for that Data stored in backup

15. DISCLAIMER OF WARRANTIES

Except as provided in Clause 16, You expressly acknowledge and agree that use of Ubiquity Engage and Ubiquity Insight, the Products and Services and the Site is at Your sole risk. The Products and Services and the Site are provided on an "as is" and "as available" basis.

To the fullest extent allowed by law, We expressly disclaim all warranties and conditions of any kind, whether express or implied, including, but not limited to the warranties of merchantability, fitness for a particular purpose and non-infringement. The contents of the services or the site may contain bugs, errors, problems or other limitations. We assume no liability or responsibility for any errors or omissions in content.

We are not responsible for the contents that are entered from any source whether by You or Your clients, affiliates or any person or individual, system or end-user into any Product or Service. We do not warrant or make any representations regarding the reliability or accuracy of the registration information supplied to Us nor the responses or information supplied by end-users to You in response to Products or Services.

We do not warrant or make any representations regarding the use or the consequences of the use of any Product or Service, nor do We warrant the correctness, usefulness, reliability, accuracy or otherwise of any Product or Service.

We are not responsible for any damages, including without limitation, lost profits, business interruption or other loss resulting from use of or reliance in any way on Ubiquity Engage and Ubiquity Insight or any Product or Service.

It is solely Your responsibility to evaluate the accuracy, reliability, completeness and usefulness of any Product or Service or other information received while using the Products or Services or Site. We make no warranty that the Service or Site will meet your requirements or that the Service will be uninterrupted, timely, secure, virus-free, error-free, accurate or reliable; nor do We make any warranty as to any information that may be obtained through the Service or Site or that defects in the software for the Service will be corrected or that the Site is free of viruses or other harmful components.

You understand and agree that any material and/or data downloaded or otherwise obtained through use of the Service or Site is done at Your own discretion and risk and that You will be solely responsible for any damage to Your computer system or loss of data that results from the download of such material or data.

16. INTELLECTUAL PROPERTY WARRANTIES

16.1

We warrant that:

(a) We own Ubiquity Engage and Ubiquity Insight and the Products and Services and/or have the right and authority of all third party owners, head licensors and any sub-licensors to use all components of Ubiquity Engage and Ubiquity Insight and the Products and Services provided on the Site;
(b) none of Ubiquity Engage and Ubiquity Insight or the Products and Services infringes or will infringe the Intellectual Property Rights of any third party.

16.2

16.2.1

We agree to defend, indemnify and hold You harmless for any loss, damage or liability for any claimed infringement of any Intellectual Property Right asserted by any third person arising out of Your use of Ubiquity Engage and Ubiquity Insight in accordance with these Terms and Conditions, provided:

(a) that You immediately notify Us in writing of any such claim against You,
(b) that You authorise Us to assume sole control over the defence of any such claim thereafter, together with the right to settle or compromise such claim, and
(c) that You make available to Us all information, assistance and authority as may be requested by Us in order to enable Us to defend any such claim.
In the event any such claim is asserted, We may without limitation and at our option:
(d) obtain such rights and/or licenses from the claimant as may be necessary to enable You to continue using Ubiquity Engage and Ubiquity Insight, and/or
(e) modify Ubiquity Engage and Ubiquity Insight with respect to which such claim is asserted so as to avoid further claimed infringement by such person.

16.2.2

Notwithstanding Clause 16.2.1, We shall not be liable to You for any claim arising from or based upon the combination, operation or use of Ubiquity Engage and Ubiquity Insight with equipment, data or software not approved by Us, or from any alteration or modification of Ubiquity Engage and Ubiquity Insight not made by Us.

17. LIMITATION OF LIABILITY

Except as provided in clause 16:

(a) To the fullest extent permissible pursuant to applicable law, neither Us nor any subsidiaries, affiliates, officers or employees shall be liable for any direct, indirect, special, incidental, consequential or punitive damages arising out of Your access to, use of, inability to use, or reliance on Ubiquity Engage and Ubiquity Insight or the Products or Services even if We are advised of the possibility of such damages.
(b) If You are dissatisfied with Ubiquity Engage and Ubiquity Insight or the Products or Services, the materials available on or through Ubiquity Engage and Ubiquity Insight or the Products or Services or the Site, or with any of the Terms and Conditions of Use, Your sole and exclusive remedy is to discontinue using Ubiquity Engage and Ubiquity Insight and leave the Site immediately.
(c) Without prejudice to sub clauses (a) and (b), under no circumstances shall We be liable for more than the total amount of the charges paid in the twelve (12) months before any incident (or in case of a series of incidents arising from a common cause immediately preceding the first of such incidents) giving rise to a claim.
(d) No action regardless of form, may be brought by any Party more than two years after the cause of action arose.

18. INDEMNITY

You agree to indemnify Us against any costs, losses, claims, or damages (including legal fees and disbursements on a solicitor and own client basis) incurred or suffered by Us as a consequence of:

(a) Your default or failure to perform your obligations under these Terms and Conditions of Use:
(b) any act or omission for which You are responsible at law;
(c) Your use of the Site or Ubiquity Engage and Ubiquity Insight; or
(d) as provided in Clause 4 (Your Data and Materials) above

19. NO SPAMMING

You acknowledge and agree that Ubiquity merely provides Products and Services and is not the sender or originator of any communication from a Product or Service. Ubiquity may, from time to time send messages either via email or via the Site to You in order to ensure You are kept informed of changes or account information. From time to time, Ubiquity may solicit feedback on Products or Services provided by the Site.

You warrant and promise that You either have an ongoing business or personal relationship with or have obtained consents to send emails from the Site to Your own contacts. You further warrant that Your use of the Site, Product or Service will not violate any spamming, junk mail or other related laws or regulations prohibiting or discouraging unsolicited messages.

When email information is stored or entered into the Products or Services or established email lists, that information remains untouched and private in Your account. Your password protects that information. Ubiquity never discloses that information and if it ever wanted to, Ubiquity would get express approval from You first. However, if You have breached these Terms and Conditions of Use, Ubiquity will report such conduct to the appropriate authorities and turn over any and all information, including personally identifying information, to appropriate persons or entities. Ubiquity may suspend Your account without notice and all account credit and/or data may be forfeit.

20. OTHER PROHIBITED USES

You agree not to transmit through the Products or Services or the Site any pornographic, obscene, offensive, threatening, harassing, libelous, hate-oriented, harmful, defamatory, racist, illegal or otherwise objectionable material or content.

You shall not send any transmission that attempts to hide Your identity or represents You as someone else. Any attempt by You to transmit, publish or distribute material or content that promotes, provides or relates to instructional information about illegal activities or promotes physical harm or injury against any individual or group is strictly forbidden.

You specifically agree not to use the Products or Services or the Site to send any materials to any persons under 18 years of age unless and until You have taken and followed all necessary action and compliance pursuant to all applicable laws.

You agree not to upload or distribute in any way any files that contain viruses, corrupted files or any similar software or programs that may damage the operation of anyone else's computer, the Products or Services or the Site.

You agree not to interfere or disrupt networks connected to the Products or Services and the Site. Any attempt by You to gain unauthorised access to any computer system, including accounts, databases, servers, networks maintained by and for Ubiquity, is strictly forbidden. You agree to comply with all applicable laws relating to such conduct.

If You engage in any activity set forth in this paragraph or violate any of these Terms and Conditions of Use, Your account will be terminated and use of the Products and Services and Site prohibited. Any credit remaining on Your account will be forfeit and no further correspondence will be entered into. Ubiquity will report such conduct to the appropriate authorities and turn over any and all information, regarding such activity to appropriate persons or entities.

21. DATABASE AND STORAGE OF DATA

Data storage costs may be applicable for some Products or Services. Where data storage costs are applicable You will be made aware of these costs and have the opportunity to pay these costs. If for any reason payment is not received, data may be permanently deleted from the system with no further notice.

22. TERMINATION

22.1 Termination by Us

In addition to any express termination rights set out in these Terms and Conditions of Use, We may terminate your use of Ubiquity Engage and Ubiquity Insight at any time without cause, provided that where your subscription is terminated without cause, We will refund to you, on a pro rata basis, any charges you have paid in advance for the use of Ubiquity Engage and Ubiquity Insight and the Products and Services. We shall not be liable to You or any third party in any manner for termination of the Products or Services or the Site.

22.2 Termination by You

In the event You should become dissatisfied with the Products or Services or the Site, Your only recourse is to discontinue use of the Products or Services and the Site, terminate the account and give notice of these actions. Upon termination, Your right to use the Products and Services and the Site cease immediately and Ubiquity shall have no obligation whatsoever to forward any data to You.

23. JURISDICTION

These Terms and Conditions of Use and the relationship between You and Ubiquity, shall be treated as if entered into and executed in New Zealand and shall be governed and construed solely in accordance with the laws of New Zealand, without regard to conflict of law principles. You submit to the exclusive jurisdiction of the New Zealand Courts.

Ubiquity makes no representation that the materials and content on the Site or relating to the Products or Services are appropriate or available for use in locations other than New Zealand, and accessing them from territories where their contents are illegal is strictly forbidden.

Those who access the Products or Services or the Site from other locations do so on their own initiative and at their own risk and must ensure compliance with any applicable laws.

24. NATURE OF AGREEMENT

You agree that the registration procedure, account set-up and subsequent action of entering ‘ACCEPT’ into various areas of the Site constitute agreement to these Terms and Conditions of Use. Further, these Terms and Conditions of Use are the entire and only agreement between the parties and supersede any prior or other understandings, representations or warranties. You agree that each use of the Products or Services and the Site reaffirms Your acknowledgment and agreement to these Terms and Conditions of Use.

25. GENERAL PROVISIONS

The failure by Ubiquity to enforce any right or provision under these Terms and Conditions of Use shall not constitute a waiver of that provision or any other provision. If any provision of these Terms and Conditions of Use shall be determined to be invalid or unenforceable by a court of competent jurisdiction, the other provisions of these Terms and Conditions of Use shall remain in full force and effect.

26. MARKETING

Ubiquity may add your organisation’s logo to one or more of the Ubiquity Engage and Ubiquity Insight websites as part of general marketing.

You may at any time contact Ubiquity and ask for your organisations details to be removed from one or all of the websites. Your details will be removed promptly and without question.

To visit the Ubiquity Engage help section click here.