Terms of Service
These Terms of Service 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 Service and apply to You from the time that Capella provides You with access to the Service.
BY REGISTERING TO USE THE SERVICE 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 SERVICE. YOU ARE DEEMED TO HAVE AGREED TO THESE TERMS ON BEHALF OF ANY ENTITY FOR WHOM YOU USE THE SERVICE.
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Authorised Users: those employees, agents and independent contractors of the User who are authorised by the User to use the Services, as further described in clause 3.53.9.
Business Day: any day which is not a Saturday, Sunday or public holiday in New Zealand.
Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 8.4.
User Data: the data inputted by the User, Authorised Users, or Capella on the User’s behalf for the purpose of using the Services or facilitating the User’s use of the Services.
Start Date: the date of this agreement as set out in the SaaS order form.
Initial Term: the initial term of this agreement as set out in the SaaS order form.
Normal Business Hours: 8.00 am to 5.00 pm NZDT, each Business Day.
Renewal Term: the renewal period as set out in the SaaS order form.
Service: the subscription services provided by Capella to the User under this agreement via the SaaS website or any other website notified to the User by Capella from time to time.
Software: the online software applications provided by Capella as part of the Services.
Fees: the fees payable by the User to Capella for the User Subscriptions, as set out in the SaaS order form.
Initial Term: the intial subscription term as set out in the SaaS order form.
Support Services Policy: the Supplier’s policy for providing support in relation to the Services as made available at www.capellaconsulting.co.nz/support/policy or such other website address as may be notified to the Customer from time to time.
User Subscriptions: the user subscriptions purchased by the User pursuant to the SaaS Order form which entitle Authorised Users to access and use the Services in accordance with this agreement.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Words in the singular shall include the plural and vice versa.
1.6 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.7 References to clauses and schedules are to the clauses and schedules of this agreement.
2.1 The Service requires a provisioned “Account” through which the Service may be accessed and used. In order to obtain a provisioned Account from Capella, you must:
i. acknowledge that you have read and accepted these Terms of Service,
ii. provide a valid e-mail address to which you have right and permission to access and read e-mail communications, and
iii. provide any other information required by Capella during the enrolment registration process.
2.2 You represent and warrant to Capella that the information provided by you in the order form is accurate and complete and that you will promptly notify Capella of any User changes required during the term of this Service.
2.3 If you are registering on behalf of an entity, you represent and warrant to Capella that you have full right, power, and authority to bind such entity as the User to these Terms, including without limitation the use of the Site, collection, storage, and use of hosted data.
2.4 You are responsible for maintaining the security of your Account and password necessary to access your Account. Capella cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
3 Use, Restrictions, and Responsibilities
3.1 User must use the Service at all times strictly in accordance with all policies, domestic and international laws and regulations, including without limitation those relating to the use of the Internet, electronic communications, anti-spam, privacy, obscenity, defamation and applicable export laws. Your use of the Service at all times is subject to Capella’s Acceptable Use Policy published at the Capella Site or otherwise furnished to the User and is incorporated in these Terms by reference. Capella reserves the right, but assumes no responsibility or obligation to monitor your conduct and use of the Service. Capella may, at its own discretion, take action to remediate any problems caused by violations (or alleged violations) of the Acceptable Use Policy, including but not limited to suspension to access (in part or in whole) the Service and/or suspension or termination of the User’s Account.
3.2 These Terms of Service are an agreement for use of the Service made available through the Site, and User is not granted a license to any software by these Terms. User will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service or any software, documentation, or data related to the Service (“Software”); modify, translate, or create derivative works based on the Service or any Software; or copy (except for archival purposes), distribute, pledge, assign, or otherwise transfer or encumber rights to the Service or any Software; use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels, or build a competitive product or service.
3.3 In the course of navigating the Site and using the Service, User may provide Capella with feedback, including but not limited to suggestions, observations, errors, problems, and issues regarding the Service and Site (collectively “Feedback”). You hereby grant to Capella a worldwide, irrevocable, perpetual, royalty-free, transferable, and sub-licensable, non-exclusive right to use, copy, modify, distribute, display, perform, create derivative works from, and otherwise exploit all such Feedback.
3.4 User must obtain, at their own expense, the appropriate Internet connections and equipment needed to access and use the Service. User also must use reasonable security precautions in connection with your use of the Service.
3.5 Subject to User’s purchase of the User Subscription packs in accordance with the SaaS order form, Capella grants a non-exclusive, non-transferable right to permit the employees, agents and independent contractors of the User who are authorised by the User (“Authorised Users”) to use the Services solely for the User’s internal business operations.
3.6 In relation to the Authorised Users, the User undertakes that:
3.7 the maximum number of Authorised Users that you authorise to access and use the Services shall not exceed the number of User Subscriptions you have purchased,
3.8 you will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services,
3.9 each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed in accordance with customer’s requirement of every 180 days and that each Authorised User shall keep his password confidential,
3.10 you shall permit Capella to audit the Services in order to establish the registered number of Authorised Users. Such audit may be conducted no more than once per quarter, at Capella’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the User’s normal conduct of business, and
3.11 if any of the audits referred to in clause 3.10 reveal that the User has underpaid User Subscription Fees to Capella, the User shall pay to Capella an amount equal to such underpayment as calculated in accordance with the prices set out in the order form within 10 Business Days of the date of the relevant audit.
3.12 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Capella via email.
3.13 The user subscription rights are granted to the User only, and shall not be considered granted to any subsidiary or holding company of the User.
3.14 User may, from time to time during the Initial Term or any subsequent Renewal Term, purchase additional User Subscriptions in excess of the number set out in the order form, and Capella shall grant access to the Services to such additional Authorised Users in accordance with the provisions of these Terms of Service.
3.15 If User wishes to purchase additional User Subscriptions, User shall notify Capella in writing, and User shall, within 30 days of the date of Capella’s invoice, pay to Capella the relevant fees for such additional User Subscriptions as set out in the order form. If such additional User Subscriptions are purchased by the User part way through the Initial Term or any Renewal Term (as applicable), such fees shall be pro-rated for the remainder of the Initial Term or then current Renewal Term (as applicable).
3.16 Capella respects the privacy of our Users and the privacy of their data. All user information contained within the electronic communications, attached documents, forms, newsletters, surveys and documents you may use or compose with the Capella Service are governed by the Capella Terms of Service. Although Capella owns the data storage, databases and the SaaS Site, you retain all rights to your data. All user data uploaded to an Account of the SaaS Service is stored in a personalized and secure location. We will not utilize, sell, or rent your data uploaded into our system and only the registered users of the account holder may gain access to the uploaded data.
4 Capella’s Obligations
4.1 Capella shall, during the Initial Term and Renewal Term, provide the Services to the User on and subject to these terms of service.
4.2 Capella shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
4.2.1 planned maintenance carried out during the maintenance window of 6:00pm to 10pm NZ time, and
4.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that Capella has used reasonable endeavours to give the User at least 6 Normal Business Hours’ notice in advance.
4.3 Capella will, as part of the Services and at no additional cost to the User, provide the User with Capella’s standard customer support services during Normal Business Hours in accordance with Capella’s Support Services Policy in effect at the time that the Services are provided. Capella may amend the Support Services Policy in its sole and absolute discretion from time to time. User may purchase enhanced support services separately at Capella’s then current rates and in accordance with the SaaS order form.
4.4 These Terms of Service shall not prevent Capella from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Terms of Service.
4.5 Capella warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
5 User’s Obligations
5.1 The User shall:
5.1.1 provide Capella with:
i. all necessary co-operation in relation to these Terms of Service, and
ii. all necessary access to such information as may be required by Capella, in order to render the Services, including but not limited to User Data, security access information and configuration services;
5.1.2 comply with all applicable laws and regulations with respect to its activities under these Terms of Service;
5.1.3 carry out all other User responsibilities set out in these Terms of Service in a timely and efficient manner. In the event of any delays in the User’s provision of such assistance as agreed by the parties, Capella may adjust any agreed timetable or delivery schedule as reasonably necessary;
5.1.4 ensure that the Authorised Users use the Services and the Documentation in accordance with these Terms of Service and shall be responsible for any Authorised User’s breach;
5.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for Capella, its contractors and agents to perform their obligations under these Terms of Service, including without limitation the Services;
5.1.6 ensure that its network and systems comply with the relevant specifications provided by Capella from time to time; and
5.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Capella’s Service, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the User’s network connections or telecommunications links or caused by the internet.
6 Charges and payment
6.1 The User shall pay the Fees to Capella for the User Subscriptions in accordance with the SaaS order form.
6.2 The User shall on the Start Date provide to Capella valid, up-to-date and complete credit card details or approved purchase order information acceptable to Capella and any other relevant valid, up-to-date and complete contact and billing details and, if the User provides:
6.2.1 its credit card details to Capella, the User hereby authorises Capella to bill such credit card:
i. on the Start Date for the Fees payable in respect of the Initial Term; and
ii subject to clause 12.1, on each anniversary of the Start Date for the Fees payable in respect of the next Renewal Term; or
6.2.2 its approved purchase order information to Capella, Capella shall invoice the User:
i on the start Date for the Fees payable in respect of the Initial Term; and
ii subject to clause 12.1 at least 30 days prior to each anniversary of the Start Date for the Fees payable in respect of the next Renewal Term, and
6.2.3 the User shall pay each invoice within 30 days after the date of such invoice.
6.3 If Capella has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Capella:
6.3.1 Capella may, without liability to the User, disable the User’s account and access to all or part of the Services and Capella shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
6.3.2 interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of Capella’s bankers in New Zealand at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
6.4 All amounts and fees stated or referred to in the SaaS Order form:
6.4.1 shall be payable in New Zealand dollars;
6.4.2 are subject to clause 10.3, non-cancellable and non-refundable;
6.4.3 are exclusive of goods and services tax, which shall be added to Capella’s invoice(s) at the appropriate rate.
6.5 Capella reserves the right to modify its pricing at the start of each Renewal Period upon 90 days’ prior notice to the User and will notify you by e-mail when this occurs.
7 Proprietary Rights
7.1 User acknowledges and agrees that Capella and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, the Terms of Service does not grant the User any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
7.2 Capella confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, these Terms of Service.
8.1 Capella and User may be given access to Confidential Information from each other in order to perform its obligations under these Terms of Service. A party’s Confidential Information shall not be deemed to include information that:
8.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
8.1.2 as in the other party’s lawful possession before the disclosure;
8.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
8.1.4 Is independently developed by the receiving party, which independent development can be shown by written evidence; or
8.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
8.2 Capella and User shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
8.3 Capella and User shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
8.4 Neither Capella nor User shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
8.5 User acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Capella’s Confidential Information.
8.6 Capella acknowledges that the User Data is the Confidential Information of the User.
8.7 This clause 8 shall survive termination of this agreement, however arising.
9.1 User shall defend, indemnify and hold harmless Capella against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the User’s use of the Services, provided that:
9.1.1 the User is given prompt notice of any such claim;
9.1.2 Capella provides reasonable co-operation to the User in the defence and settlement of such claim, at the User’s expense; and
9.1.3 the User is given sole authority to defend or settle the claim.
9.2 Capella shall, subject to clause 9.5, defend the User, its officers, directors and employees against any claim that the Services infringes any New Zealand patent effective as of the Start Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the User for any amounts awarded against the User in judgment or settlement of such claims, provided that:
9.2.1 Capella is given prompt notice of any such claim;
9.2.2 the User provides reasonable co-operation to Capella in the defence and settlement of such claim, at Capella’s expense; and
9.2.3 Capella is given sole authority to defend or settle the claim.
9.3 In the defence or settlement of any claim, Capella may procure the right for the User to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on  Business Days’ notice to the User without any additional liability or obligation to pay liquidated damages or other additional costs to the User.
9.4 In no event shall Capella, its employees, agents and sub-contractors be liable to the User to the extent that the alleged infringement is based on:
9.4.1 a modification of the Services by anyone other than Capella; or
9.4.2 the User’s use of the Services in a manner contrary to the instructions given to the User by Capella; or
9.4.3 the User’s use of the Services after notice of the alleged or actual infringement from Capella or any appropriate authority.
9.5 The foregoing states the User’s sole and exclusive rights and remedies, and Capella’s (including Capella’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
10 Limitation of liability
10.1 To the maximum extent permitted by law, Capella 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 Service or Website.
10.2 If You suffer loss or damage as a result of Capella’s negligence or failure to comply with these Terms of Service, any claim by You against Capella arising from Capella’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Fees paid by You in the previous 12 months.
10.3 If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 12.1.
10.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR PERSONAL INJURY OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY CAPELLA, CAPELLA AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND PROPERTY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE) OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THESE TERMS OR THE SERVICE, WHETHER BASED ON BREACH OF AGREEMENT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF CAPELLA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. You acknowledge and agree that the Service may be subject to limitations, delays, temporary outages, and other problems inherent to the use of the Internet or caused by computer equipment failures, telecommunications equipment failures, other equipment failures, electrical power failures, or acts of God, and that Capella is not responsible for any damage, harm, or losses resulting from such problems.
10.5 NO CLAIM MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER PARTY WITH RESPECT TO ANY EVENT, ACT, OR OMISSION THAT OCURRED MORE THAN TWO (2) YEARS PRIOR TO SUCH CLAIM BEING ASSERTED.
10.6 The limitations of damages and liability set forth above fundamental elements of the basis of the bargain between Capella and the User. The Capella Site and the Service would not be provided by Capella without such limitations.
11.1 Capella may, without notice to User, update and otherwise modify the Service in its sole discretion, including but not limited to providing updates or modifying features or functionality, or removing features or functionality (collectively “Updates”). These Terms apply to all such Updates.
12 Term and Termination
12.1 User may terminate these Terms of Service along with the Service at any time, by providing 30 days written notice prior to the commencement of the next renewal term either by sending an email message to firstname.lastname@example.org or by sending written notice to: Capella Consulting Limited, PO Box 6081, Wellington 6011, New Zealand. Termination notice will still be bound by term length designated on the signed order form. Orders will automatically renew unless written notice of termination is sent at least 30 days prior to the commencement of the next renewal term unless specifically designated on the order form.
12.2 Capella may terminate these Terms of Service, the Service, and the User’s access to the User’s Account at any time with or without cause, and with or without notice. Capella shall have no liability to User or any third party because of such termination.
12.3 Upon termination for any reason, Capella may destroy or otherwise dispose of any of the User data in its possession unless Capella receives, no later than ten days after the effective date of the termination of these Terms of Service, a written request for the delivery to the User of the then most recent back-up of the User Data. Capella shall use reasonable commercial endeavours to deliver the back-up to the User within 30 days of its receipt of such a written request, provided that the User has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The User shall pay all reasonable expenses incurred by Capella in returning or disposing of User Data.
13 Warranty Disclaimer
13.1 YOU USE THE SERVICE AT USER’S OWN RISK. CAPELLA DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND CAPELLA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. CAPELLA MAKES NO WARRANTY THAT (i) THE SITE OR THE SERVICE WILL MEET YOUR EXPECTATIONS, (ii) THE SITE AND SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (iii) ANY ERRORS IN THE SITE OR SERVICE WILL BE CORRECTED.
14.1 If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
14.3 No agency, partnership, joint venture, or employment is created as a result of these Terms, and User does not have any authority of any kind to bind Capella in any respect whatsoever.
14.4 Any disputes or claims arising out of or in connection with these Terms of Service (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of New Zealand. Both Capella and User irrevocably agree that the courts of New Zealand have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms of Service (including non-contractual disputes or claims).
14.5 You may not assign or transfer any rights to any other person without Capella’s prior written consent.
14.6 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.
14.7 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 Capella must be sent to email@example.com or to any other email address notified by email to You by Capella. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
14.8 A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.
14.9 Your use of the Service constitutes your electronic signature to these Terms of Service and your consent to enter into agreements with Capella electronically. User agrees that Capella may send in electronic form any notices or other communications relating to the Service (“Notices”) to you, at Capella’s option, to the e-mail address that you provided during registration (or such other e-mail address of which you notify Capella as provided in paragraph (2.1) above or by posting the Notice on the applicable Service or otherwise on the Site. The delivery of any Notice from Capella is effective when sent, regardless of whether or when you read the Notice or whether you actually receive the delivery. All agreements completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing.
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