IMPORTANT: These terms are binding on you. It is important that you read them carefully. These terms govern your access to the Site and use of the Services (as defined below). If you do not agree to be bound by these Terms you must not use any part of our Site or the Services.
1.1 The following words and phrases have specific meanings wherever you see them used in these Terms:
Confidential Information means any and all information of a confidential nature which is obtained by one party in relation to the other party in connection with these Terms and a Customer Agreement including without limitation any strategies, concepts, budgets, trading terms, plans, projections, methods, processes, systems, know how, trade secrets, computer software and programs, research data, client lists, intellectual property, business or financial information, employee, customer, financier or supplier information, or any dealings, transactions, affairs or any other information in any form. For the avoidance of doubt, Confidential Information includes all Bottomless Bots Intellectual Property and Customer Data.
Customer means the entity (e.g. a company or other organisation) which has entered into a Customer Agreement with Bottomless Bots.
Customer Agreement means an agreement under which an entity (e.g. a company or other organisation) engages Bottomless Bots to provide Services.
Customer Data includes information, data, and content (including personal information) owned, held, used or created by the Customer supplied by the Customer to Bottomless Bots.
Fees means the fees set out in a Customer Agreement or otherwise agreed with a Customer.
Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist attacks and wars).
GST means goods and services tax payable under the New Zealand Goods and Services Tax Act 1985 or as amended.
Intellectual Property Rights means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, utility models and rights in designs.
New Intellectual Property all Intellectual Property Rights, including (but not limited to) copyright, in all concepts, designs, drawings, specifications, plans, studies, reports, models, software and documentation collated, prepared or created in any medium by Bottomless Bots (or persons on behalf of the Bottomless Bots) in carrying out the Services and provided to the Customer as deliverables, but not including Bottomless Bots Intellectual Property.
Services means IT strategy, business strategy, digital transformation and cyber security advisory services and other services provided by Bottomless Bots from time to time.
Site means the website at www.trac.kiwi.
Terms means these terms of service.
Bottomless Bots means Bottomless Bots Limited, a company registered in New Zealand under company number 5407342, and our, us and we used in these Terms refers to Bottomless Bots.
Bottomless Bots Intellectual Property means all Intellectual Property Rights owned by or licensed to Bottomless Bots which are used in the provision of the Services, including (but not limited to) the Site, any generic material (e.g library code, standard text, stock imagery and the like) that has been used in the past by Bottomless Bots or which may need to be used in future and which does specifically identify the Customer, proprietary software, systems, technologies, strategies, manuals, know how, financial approaches, business processes and methodologies.
You means the person who accepts these Terms in accordance with clause 2 below, and, if clause 2.2 applies, the Customer on whose behalf you are acting.
2.1 These Terms are binding and apply to your use of the Site and any use of the Services by the Customer. By visiting the Site or using the Services, you irrevocably agree to these Terms and our enforcement of the Customer Agreement and these Terms against you.
2.2 Where the Services are used or to be used by a Customer entity (e.g. a company or other organisation), you confirm that you are authorised to agree to these Terms on that Customer entity’s behalf and you agree on behalf of that Customer entity that it is bound by these Terms. In that case, references to “you” in these Terms include both the person accepting these Terms and that Customer entity.
2.4 You warrant in respect of all personal information about any identifiable individual, which is contained in any Customer Data, that you have the right to collect and use that personal information for the purposes you are using it and to make it available to us and our third party service providers so that we can together deliver the Services. You further warrant that our and those third parties’ collection, storage, distribution, disclosure and other use of that personal information to deliver the Services will not breach any privacy, data protection or other similar law in any jurisdiction.
2.5 If you do not agree to be bound by these Terms, you must immediately stop accessing the Site and using the Services.
3.1 We may revise these Terms at any time by providing you with at least 30 days’ prior notice of the change, whether via the Site, by email or by any other messaging facility we may use. Continued use after that notice constitutes agreement to the changed terms.
3.2 These Terms were last updated on 25th February 2021 (25/02/2021).
4.1 We will use reasonable efforts to provide the Services:
4.1.1 in accordance with these Terms and New Zealand law;
4.1.2 exercising reasonable care, skill and diligence; and
4.1.3 using suitably skilled, experienced and qualified personnel.
4.2 Our provision of the Services to you is non-exclusive. We can provide the Services to any other person.
5.1 We will maintain and update the Site as and when we consider it appropriate to do so.
5.2 Where practicable, we will give you at least 7 days' notice of any scheduled maintenance that is likely to affect the availability of the Site. We reserve the right to suspend access at any time, without notice, to all of ay part of the Site and/or the Services where we consider it necessary for security or other emergency reasons. Neither you nor the Customer has any claim against us in such circumstances.
6.1 You agree to pay all applicable Fees.
6.2 Unless otherwise agreed in a Customer Agreement, Bottomless Bots will invoice you monthly for Services undertaken in the previous month.
6.3 All Fees exclude GST, which you must pay on taxable supplies under these Terms.
6.4 You agree to pay all Bottomless Bots invoices issued by the 20th of the month following the date of invoice in cleared funds without set-off or deduction.
7.1 You must comply with all applicable laws, regulations and rules when using the Site and Services, and with respect to any Customer Data you provide to us.
7.2 You must provide to us, or procure for us, such information and documentation as is reasonably necessary to enable us to perform our obligations under these Terms.
7.3 You must not use the Services:
7.3.1 in any way that is unlawful, illegal, fraudulent or harmful; or
7.3.2 in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
8.1 Bottomless Bots Intellectual Property Rights:
8.1.1 we own, or have a license to, all rights, title and interest, including all Intellectual Property Rights, in and to Bottomless Bots Intellectual property and any suggestions, enhancements, requests, recommendations, corrections or other feedback provided by Customers relating to Bottomless Bots Intellectual Property;
8.1.2 subject to these Terms, we grant you a worldwide, non-exclusive, non-transferable, non-sublicensable licence to us and copy Bottomless Bots Intellectual Property to the extent reasonably required to enable you to make use of the Services;
8.1.3 we own all rights, title and interest, including all Intellectual Property Rights in New Intellectual Property;
8.1.4 subject to you having paid all amounts due and payable to us in accordance with a Customer Agreement, we grant you a non-revocable, royalty free, non-exclusive license to use the New Intellectual Property to the extent reasonably required to enable you to make use of the Services;
8.1.5 we retain all right, title and interest in any source or HTML code, make-up files and Bottomless Bots proprietary software used by Bottomless Bots or its contractors and agents in providing the Services and the Site; and
8.1.6 your rights in relation to any licence in respect of Bottomless Bots Intellectual Property and New Intellectual Property is conditional upon, on each occasion, you having paid all amounts due and payable to Bottomless Bots in accordance with a Customer Agreement concerning the Services which produced the New Intellectual Property or made use of Bottomless Bots Intellectual Property.
8.2 Your Intellectual Property Rights:
8.2.1 you own all right, title and interest, including Intellectual Property Rights, in and to Customer Data; and
8.2.2 you grant us a royalty free, perpetual, worldwide, transferable, non-exclusive licence to use Customer Data for the term of a Customer Agreement to the extent reasonably necessary to enable Bottomless Bots to provide the Services.
8.3 Nothing in these Terms will operate to assign or transfer any Intellectual Property Rights from us to you or the Customer, or from you or the Customer to us.
8.4 If we reasonably determine, or any third party alleges, that the use of the Services by you in accordance with these Terms, including, but not limited to your use of the New Intellectual Property, infringes any person’s Intellectual Property Rights, we may at our own cost and expense:
8.4.1 modify or revoke the Services and/or the New Intellectual Property in such a way that they no longer infringe the relevant Intellectual Property Rights; or
8.4.2 procure for you the right to use the Services and/or New Intellectual Property in accordance with these Terms.
8.5 Where we provide any software to you to enable you to use the Services:
8.5.1 we retain all Intellectual Property Rights in that software (including both the human readable and machine readable parts);
8.5.2 you have no right to access the source or object code of the software other than in running the software to use the Services and you agree not reverse engineer, reproduce, duplicate, copy, sell, assign, sublicence, resell or exploit any portion of the software other than as strictly necessary for you (and not anyone else) to use the Services;
8.5.3 you will only use the software for the purposes it was provided;
8.5.4 all proprietary notices on or in the software are to be retained and not altered or removed; and
8.5.5 you will keep your copy of the software secure and not let anyone else access or use it and you will not use the software to provide services that are the same or equivalent to the Services, to anyone else.
9.1 We do not guarantee that the Site will be secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programmes and site in order to access the Site (if applicable). You should use your own virus protection software.
9.2 We will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Site or to your downloading of any material from the Site.
9.3 You must not misuse the Site by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to the Site, the server on which the Site is stored or any server, computer or database connected to the Site. You must not attack the Site (if applicable) via a denial-of-service attack or a distributed denial-of service attack.
10.1 We warrant to you that:
10.1.1 we have the legal right and authority to enter into and to perform our obligations under these Terms;
10.1.2 we will comply with all applicable legal requirements applying to the exercise of our rights and the fulfilment of our obligations under these Terms;
10.1.3 the use of the Services in accordance with these Terms will not breach any legal requirements applicable under New Zealand law;
10.1.4 we have or have access to all necessary know-how, expertise and experience to perform our obligations under these Terms.
10.2 You acknowledge that:
10.2.1 complex software is never wholly free from defects, errors and bugs, and Bottomless Bots gives no warranty or representation that the Site will be wholly free from such defects, errors and bugs;
10.2.2 we do not warrant or represent that the Site will be compatible with any device not approved by us; and
10.2.3 we do not give any representation, warranty or other assurance whatsoever as to the fitness for purpose, functionality, operation, continuation or use of any device that you may use to access the Site.
10.3 All of the parties' warranties and representations in respect of the subject matter of these Terms are expressly set out in these Terms. No further terms are implied.
10.4 You agree that you are using the Services for the purpose of a business and that the Consumer Guarantees Act 1993 (NZ) and any other similar consumer protection legislation in any jurisdiction does not apply to the Services or the Site.
11.1 We will indemnify and will keep indemnified you against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by you and arising out of any claim brought against the Customer by a third party to the extent that the claim alleges that your use of the Services infringes the third party's Intellectual Property Rights (a Bottomless Bots Indemnity Event).
11.2 You must:
11.2.1 upon becoming aware of an actual or potential Bottomless Bots Indemnity Event, notify us;
11.2.2 provide to us all such assistance as may be reasonably requested by us in relation to the Bottomless Bots Indemnity Event;
11.2.3 allow us the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Bottomless Bots Indemnity Event; and
11.2.4 not admit liability to any third party in connection with the Bottomless Bots Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Bottomless Bots Indemnity Event without our prior written consent,
and our obligation to indemnify you under clause 11.1 will not apply unless you comply with the requirements of this clause 11.2.
11.3 We will not be liable to you under a Bottomless Bots Indemnity Event to the extent that the third party's claim arises from the Customer's breach of the Customer Agreement or these Terms, use of the Services in a manner not reasonably contemplated by the Customer Agreement or these Terms, or any Customer Data or third party's data.
11.4 You agree to indemnify, and hold us and our respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, any tax, legal and/or accounting fees, arising out of or in connection with your access to or use of the Site, Services or your violation of these Terms.
12.1 The limitations and exclusions of liability set out in this clause 12 and elsewhere in a Customer Agreement and these Terms govern all liabilities arising under a Customer Agreement and these Terms or relating to the subject matter of a Customer Agreement and these Terms, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in a Customer Agreement and these Terms.
12.2 Neither party is liable to the other under or in connection with these Terms of a Customer Agreement for:
12.2.1 loss of profit, opportunity, revenue, savings, business, use, data (including Customer Data), or goodwill;
12.2.2 consequential, indirect, incidental or special damage or loss of any kind, including damage to the Customer’s systems; or
12.2.3 any losses arising out of a Force Majeure Event.
12.3 This clause 12 does not apply to limit your liability to pay the Fees for the Services.
12.4 Neither party will be responsible, liable, or held to be in breach of these Terms or a Customer Agreement for any failure to perform its obligations under these Terms or a Customer Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms or a Customer Agreement, or by the negligence or misconduct of the other party or its personnel.
12.5 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or a Customer Agreement .
12.6 Our aggregate liability to you under a Customer Agreement and these Terms will not exceed the total amount received by us under such Customer Agreement in the 12 month period preceding the commencement of the event giving rise to the liability.
13.1 We will maintain and keep in force during the term of a Customer Agreement insurance of such types and in such amounts as may be notified to you from time to time. [Certificates of insurance will be provided to the Customer upon request.]
14.1 In this clause 14, Disclosing Party means the party disclosing Confidential Information and Receiving Party means the party receiving the Confidential Information.
14.2 The Receiving Party must:
14.2.1 keep the Confidential Information strictly confidential;
14.2.2 not disclose the Confidential Information to any person without the Disclosing Party's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in a Customer Agreement and these Terms;
14.2.3 use the same degree of care to protect the confidentiality of the Confidential Information as the Receiving Party uses to protect the Receiving Party's own confidential information of a similar nature, being at least a reasonable degree of care;
14.2.4 act in good faith at all times in relation to the Confidential Information; and
14.2.5 not use any of the Confidential Information for any purpose other than media production through the use of the Services.
14.3 Notwithstanding clause 14.2, the Receiving Party may disclose the Confidential Information to its officers, employees, professional advisers, insurers, agents and contractors who have a need to access the Confidential Information for the performance of their work with respect to the permitted purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information.
14.4 This clause 14 imposes no obligations upon a Receiving Party with respect to Confidential Information that:
14.4.1 is known to the Receiving Party before disclosure under the Customer Agreement and these Terms and is not subject to any other obligation of confidentiality;
14.4.2 is or becomes publicly known through no act or default of the Receiving Party; or
14.4.3 is obtained by the Receiving Party from a third party in circumstances where the Receiving Party has no reason to believe that there has been a breach of an obligation of confidentiality.
14.5 The restrictions in this clause 14 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the securities of a party on any recognised stock exchange.
14.6 The provisions of this clause 14 will continue in force indefinitely following the termination of a Customer Agreement.
15.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under these Terms (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
15.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under these Terms, must:
15.2.1 promptly notify the other; and
15.2.2 inform the other of the period for which it is estimated that such failure or delay will continue.
15.3 A party whose performance of its obligations under these Terms is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
16.1 Any and all disputes arising out of these Terms, a Customer Agreement, or any termination, will be determined by binding arbitration in English under the Arbitration Act 1996 in Auckland, New Zealand, by one arbitrator who will be a lawyer knowledgeable in relevant technology matters appointed by the President for the time being of the Arbitrators and Mediators Institute of New Zealand Incorporated (AMINZ) on a request by either you or us.
16.2 The Arbitrator shall permit the parties and any witnesses to appear by videoconference that we will organise and pay for if reasonably necessary. The costs of arbitration shall be shared equally unless the arbitrator otherwise specifies (e.g. where the arbitrator determines that the dispute is frivolous or vexatious).
17.1 Assignment: We may assign or transfer our rights under these Terms or a Customer Agreement, at our sole discretion, without restriction. You may not assign or transfer your rights under these Terms or a Customer Agreement without our prior written consent, which may be withheld in our absolute discretion.
17.2 Notices: Any notices or other communications permitted or required under these Terms, including those regarding modifications to these Terms, will be in writing and given by us:
17.2.1 via email (in each case to the address that you provide); or
17.2.2 via the Site.
For notices made by email, the date of receipt will be deemed the date on which such notice is sent.
17.3 No waiver: No failure or delay by us to exercise any right or remedy provided under a Customer Agreement or these Terms or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy by us will prevent or restrict the further exercise of that or any other right or remedy.
17.4 Survival: The obligations of the parties under clauses 8 (Intellectual Property), , 11 (Indemnities), 12 (Liability), 14 (Confidential Information), 16 (Disputes) and this clause 17 shall survive the expiry or the termination of this Agreement.
17.5 Severability: If any provision or part-provision of these Terms is or becomes void, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision will be severable and deemed to be deleted, and will not affect the validity, legality or enforceability of the remaining provisions.
17.6 Governing Law: These Terms will be governed by and construed in accordance with New Zealand law. You agree to submit to the exclusive jurisdiction of the courts of New Zealand with respect to any claim or matter arising out of or in connection with these Terms or their termination.
If you have any questions or concerns in relation to the these Terms, please contact us.