1.1 In these Terms of Service:
(a) “Agreement” is the agreement contained in these Terms of Service, and includes any revisions to these Terms of Service You subsequently agree to under clause 18(5) and includes any Annexures to this Agreement, as amended from time to time;
(b) “Swibo” means Swibo Limited (New Zealand Registered Company number 5106281) and includes its successors and assigns, and/or the computer software, mobile phone application and/or balance board marketed as Swibo Tilt;
(c) “License” is the right to use the Service for the Term that is evidenced by this Agreement;
(d) “Licensee” is any organisation having been granted a license under this or any other agreement to access and use the Service;
(e) “Support Documentation” means the marketing and technical support documentation relating to the operation of the Service, as amended from time to time, which appears on the Website. Swibo will use its best endeavours to keep this information current and reflective of the services and products it offers, but offers no warranty as to its currency;
(g) “Registration Application” means account sign-up and subscription process;
(h) “Service” means the Swibo Tilt balance board, Swibo computer software service, Swibo Tilt mobile application software service and all software and technology used in its provision, and includes all services generated by or through it;
(i) “Website” means the Swibo website and related features at swibo.co.nz or swibo.com.au;
(j) “You” refers to you as the Licensee of the Service.
2. Formation of Agreement and Term
These terms and conditions form the Agreement between Swibo and organisations who use the Service. Please read these terms and conditions carefully as they are the basis of a legal agreement between us. By using the Service You acknowledge that You have read and understood these terms and conditions and agree to be bound by them. Both the organisation and any other persons, including but not limited to officers, directors, employees or agents, who are permitted to use the Service on behalf of the organisation, are subject to these terms, unless otherwise stated.
Any additional terms and conditions agreed with You outside of this Agreement will prevail to the extent of any inconsistency with these terms.
3. Grant of License to use Service
Swibo shall provide the Service for one 1 calendar month, with automatic renewals monthly thereafter (“the Term”). The Service shall be supplied by allowing You to access and use the Service through the Website or your own software system during the Term.
Subject to the terms of this Agreement, Swibo hereby grants You a limited, nonexclusive, personal, non-sub-licensable, non-assignable license to access and use the Service for the Term on any browser or other applicable device owned or controlled by You, subject to and in strict compliance with the restrictions described in this Agreement.
4. Restrictions on Use of License
Notwithstanding anything in this Agreement to the contrary, You agree that You shall not:
(a) Operate or use the Service in a manner that violates any applicable local, state, national or international law or governmental regulation, policy procedure or ordinance;
(b) Access or use the Service if this license has been terminated by Swibo;
(d) Sell, assign, rent, lease, distribute, export, import, or otherwise grant rights in the Service, including the granting of a sublicense to any other person or entity, unless otherwise agreed in writing with Swibo Ltd;
(e) Undertake, cause, permit or authorise the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or breaching the security of (“hacking”) the Service, its software or data;
(f) Collect any information or communication about any other Licensees or licensed users of the Service by monitoring, or by intercepting any process of or communication initiated by the Service or by developing or using any software or any other process or method that engages or assists in engaging in such activity;
(g) Attempt to hack the Service or any communication initiated by the Service or to defeat or overcome any encryption and/or other technical protection methods implemented by Swibo with respect to the Service and/or data and/or content transmitted, processed or stored by Swibo or other users of the Service;
5. Service Terms and Fees
You may be required to pay fees by arrangement with Swibo to ensure continued use of the Service. Such fees will be set by Swibo and will be communicated to You prior to them being incurred.
If You have queries that are not addressed in the Support Documentation the Licensee may email them to Swibo at email@example.com. Swibo will not charge You additional fees for support provided in response to such queries.
Swibo will use its best endeavours to respond to queries raised under clause 6.1, but nothing in this clause commits Swibo to a course of action or priority or to a timeframe for any response it may make to support queries.
Additional support may be provided by Swibo and such support services are outlined at Annexure 1, which will be amended from time to time at the sole discretion of Swibo.
Swibo warrants that it owns the software and databases used in the supply of the Service and that it will use reasonable skill, care and diligence in the provision of the Service.
Swibo warrants to You that the Service will perform substantially in accordance with any Online Documentation and any amendment thereof following the grant of the Licence to use the Service and during the Term. In this clause “substantially” does not extend to situations whereby a change is made to the Service without a corresponding update being made to the Online Documentation due to, for example, an oversight on the part of Swibo.
You acknowledge that to the extent that Your access to the Service is for use in Your business that the New Zealand Consumer Guarantees Act 1993 does not apply.
Other than the warranties expressly contained in this Agreement, those warranties implied by law and which are incapable of exclusion, restriction and modification, Swibo makes no other warranty, representation or undertaking whatsoever in respect of the Service.
8. Warranty Claims and Remedies
To make a claim under any of the warranties provided in clause 7 of this Agreement, You must provide notice to firstname.lastname@example.org indicating clearly in what way the Service fails to perform in accordance with the warranties provided under clauses 7.1 and 7.2 above.
Where the software does not perform substantially in accordance with the Support Documentation or any amended version thereof, the entire and exclusive liability of Swibo and its suppliers, and Your remedy shall be limited at Swibo’s option, to the re-supply of the Service, or the refund of fees You paid (if any) for the Term of supply of the Service.
Where You have mistakenly overpaid Swibo under the Agreement, or made any overpayment to Swibo as a result of any defect or error in any banking transaction initiated as part of the Swibo license payment process, Swibo will refund You within 14 days when You contact us by email at email@example.com.
No other refunds will be provided, including but not limited to refunds for failure to terminate Your subscription prior to renewal.
9. Limitation of Liability
The Swibo Service is provided “as is”. Other than those provided in clause 7 of this Agreement, there are no warranties, claims or representations made by Swibo, other than those expressly made in this Agreement, and whether implied or statutory with respect to the Service, including but not limited to warranties of quality, performance, non infringement of copyright, merchantability, or fitness for a particular purpose, nor are there any warranties created by a course of dealing, course of performance or trade usage.
While Swibo shall endeavour to provide a robust hardware and software network environment to enable provision of the Service to You, Swibo does not represent or warrant that the Service will always be available, accessible, non-interrupted, timely, secure, accurate, completely error-free or will operate without packet loss, nor does Swibo warrant any connection to or transmission from the Internet, or any quality of transmissions of data made through the Service and its associated software.
You acknowledge that the entire risk of ascertaining suitability or risk arising out of the use or performance of the Service remains with You, to the extent permitted by law.
In no event shall Swibo, its affiliates, parent companies, subsidiaries, officers, directors, employees or agents be liable to You or to any third party claiming through You, whether in contract or tort (including negligence, breach of statutory duty or otherwise), for any direct or indirect, incidental, special or consequential damages, (including without limitation loss of profit, business, revenue, goodwill or anticipated savings any loss of data, service interruption, or computer failure) arising out of the use or inability to use the Service including any damage resulting therefrom, even if Swibo has been advised of the possibility of such damages.
To the extent (if any) that Swibo is liable for damage or loss caused to You, the extent of that liability is limited to the fees paid by You (if any) for the Service used.
Your only right with respect to dissatisfaction or problems with the Service, other than as provided for in clause 8.2 above is to cease to access and to use the Service.
10. Force Majeure
Swibo will make all reasonable efforts to maintain the availability of the Service, but shall not be liable to You or any other party claiming through You in respect of anything which, apart from this provision, may constitute a breach of this Agreement arising by reason of force majeure, including circumstances beyond the control of Swibo which prevent or limit Swibo’s ability to perform its obligations under this Agreement.
Swibo, its employees, agents and subcontractors, will keep confidential all data and other information which comes into their possession as a result of the performance of this Agreement.
12. Intellectual Property
Swibo (and its licensors or suppliers, as the case may be) owns all proprietary and intellectual property rights, or has exclusive rights to use same, in the Service (including copyright (including but not limited to trade secrets, software, data format, text, graphics, and sound recordings), trademarks (including but not limited to logos, brands and get-up), trade names, business names and company names, domain names, websites, designs, and patents that are used in supplying the Service, whether they are registered or unregistered, and includes all rights to the registration of such rights, whether created before or after the date that these terms are accepted) and other material underlying and forming part of the Services. You may not without our prior written permission, in any form or by any means:
(a) Adapt, reproduce, reverse engineer, copy, store, distribute, perform, publish or create derivative software works from any part of the Service; or
(b) Commercialise or copy the Service.
13. Security and Data
Swibo shall provide a secure environment to protect the integrity and security of the Service and of Your data and will use all practical endeavours to prevent data loss, but Swibo provides no guarantee or warranty in relation to loss of data.
Any data entered by You using the Service remains Your property, and a copy of this information is available upon request to firstname.lastname@example.org, emailed to you within two weeks from the date such information is requested.
Any data entered by other users and licensees of the Service remains the property of those users and licensees, and this Agreement in no way whatsoever transfers ownership in that data to You.
Swibo will not access, use or make available Your data to any third party without Your prior consent. User information will be shared with a nominated medical professional for the purpose of fulfilling provision of the Service to that user.
Notwithstanding clause 13.4, You agree to allow Swibo to aggregate and use the metrics surrounding Your data for the purpose of analysing its business and technical performance, including but not limited to benchmarking and comparison.
You agree not to undertake, cause, permit or authorise the hacking of the Service or any part thereof (including data).
14. Service and Maintenance
Periodically, and for the purpose of Swibo performing routine maintenance, applying software updates and security patches and updates, the Service may be unavailable to You (“Outage”) from time to time.
Wherever practically possible You will be notified in advance by email of any such Outage, giving the time of the Outage and the estimated time of unavailability of the Service.
Swibo collects personal information from users through their use of the Services and the Website. Swibo will comply with its obligations under the Privacy Act 1993 (NZ).
While accessing and using the Service, You shall at all times comply with applicable obligations under the Privacy Act 1993 (NZ).
16. Goods and Services Tax
The parties agree that where the Licensee is based in New Zealand, then where dollar amounts are stated in this Agreement and its Annexures, those amounts are exclusive of New Zealand Goods and Services Tax of 15%.
You agree to indemnify Swibo, its officers, directors, shareholders, employees, agents and subcontractors from and against any and all damage, loss, cost, liability, tax and expense whatsoever (including all solicitor’s fees on a solicitor/client basis, all actual court costs and associated fees and expenses and all disbursements) incurred by them relating to a breach by You of any term of this Agreement.
All notices under this Agreement must be made in writing and must be served:
(a) By Swibo upon You by email sent to the email address used by You to register the Service;
(b) By You upon Swibo by email sent to email@example.com
You may not assign Your rights, interests or obligations under this Agreement to any person without first obtaining the written consent of Swibo.
The failure by any party to enforce any provisions of this Agreement at any time shall not operate as a waiver of that provision in respect of the particular act or omission or any other act or omission.
This Agreement shall be governed by the laws of New Zealand, and each party irrevocably submits to the non exclusive jurisdiction of the New Zealand courts.
From time to time Swibo may revise the terms of this Agreement by publishing them at swibo.co.nz. Through the continuation of use of the Service You agree to the revised terms, whereupon this Agreement shall be deemed altered and replaced by the revised Agreement.
Electronic Signatures: You acknowledge and agree that by clicking on the ACCEPT button (or similar buttons or links as may be designated by Swibo to show Your acceptance of this Agreement and/or Your agreement to access and use the Service), You are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Service. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
Jurisdictional Matters: By entering into this Agreement You explicitly warrant that You have verified in Your own jurisdiction if Your use of the Service is permitted.
ANNEXURE 1: Support Services
At this stage Swibo offers no additional support services, unless otherwise agreed directly between Swibo Ltd and the Licensee. This is subject to change upon the posting of an updated copy of this document to swibo.co.nz.