General Terms and Conditions
DEFINITIONS
Authorised Users: means any person authorised by you to use the Services and the Documentation.
Commencement Date: means the date specified in any Order Form or, if no date is specified in an Order Form or where no Order Form exists, the date you first access the Services.
Confidential Information: means any information, know-how or material in any form, whether provided before or after the Commencement Date, obtained by a party pursuant to these Terms and which is by its nature confidential, is designated by the disclosing party as confidential or which the recipient ought reasonably know is confidential, but does not include any information to the extent the receiving party can show the relevant information:
(a) is part of or legitimately enters the public domain;
(b) is already or becomes in the unrestricted possession of the receiving party without there having been any breach of a third party’s obligations of confidentiality;
(c) has been independently developed by the receiving party (as evidenced by records in its possession);
(d) is not intended to be confidential as evidenced by the written agreement of the disclosing party; or
(e) legally must be disclosed, or is required to be disclosed pursuant to the listing rules of any applicable stock exchange.
Contract Year: means each 12 month period during the Term commencing on the Commencement Date and each anniversary of the Commencement Date.
Customer Data means: the data, information or materials inputted by you, Authorised Users or us on your behalf for the purposes of using the Services or facilitating your use of the Services, but does not include the Branded Section, or any of our software, algorithms or data comprising or used to run the Services.
Documentation: means any documents we make available to you from time to time (as amended by us from time to time) which set out a description of the Services and the user instructions for the Services, including the documentation available at masterspec.co.nz, the domain set out in the Order Form, or such other site we notify you of from time to time.
Fees: means any amounts payable for the Services, as set out in an Order Form or on the Website (as may be varied in accordance with these Terms). If there is no Order Form, or the Order Form does not specify the Fees, the Fees are the amounts shown on our Website for the relevant Services (including 'add-ons' such as access to Standards New Zealand's Online Library).
Intellectual Property Rights or IPRs: means all intellectual property rights including current and future, registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks (including logos and get-up), trade secrets, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
Masterspec Tools and Systems: Masterspec, MasterKey and Masterspec NextGen2 (and any modified or renamed versions) and any other service or product that we provide.
MiProducts Services means the services described in Schedule 3 and provided in accordance with these General Terms and Schedule 3.
Order Form: means a document issued by us to you when you purchase Services from us. The Order Form may be an invoice, quotation or similar document, and it will set out the key commercial terms (such as the Fees and Term of the Services) agreed between the parties.
Product Information Review Services means the services described in Schedule 4 and provided in accordance with these Terms and Schedule 4.
Product Listing Services: means the services described in Schedule 5 and provided in accordance with these General Terms and Schedule 5.
Product Partner Services: means the services described in Schedule 2 and provided in accordance with these General Terms and Schedule 2.
Renewal Period: means the period for which these Terms will renew under clause 3.1, as specified in the Order Form. If no renewal period is specified in the Order Form, the Renewal Period is 12 months.
Services: means the Subscription Services, Product Partner Services, MiProducts Services, Product Information Review Services and / or Product Listing Services (as the context required).
Services Terms: means the specific terms applicable to each of the Services as set out in the Schedules.
Subscription Services: means the 'Software as a Service' subscription services, being access to and use of the Masterspec Tools and Systems specified in the Order Form (or if there is no Order Form, the Masterspec Tools and Systems we agree to provide to you), which are provided by us to you under these General Terms and in accordance with Schedule 1. The software, features and functionality of the Masterspec Tools and Systems are more fully described in the Documentation available at masterspec.co.nz. The Subscription Services include access to add-on services you elect to receive when you sign-up to receive Services (such as access to Standards New Zealand's Online Library) or which you subsequently elect to receive (and we agree to provide).
Term: means:
(a) subject to (b) and (c) below, the initial term of the Services as specified in the Order Form (or if no initial term is specified, an initial term of 12 months) together with all Renewal Periods; or
(b) in respect of the Standard Listing services comprised in the Product Listing Services, the period in which your Standard Listing is included in the MiProducts database; and
(c) in respect of the MiProducts Services only, the period in which you use or access the MiProducts Services.
Website: means masterspec.co.nz, or such other site we notify you of.
You/your: means the customer specified on the Order Form or, if there is no Order Form, the person or entity on whose behalf these Terms are accepted.
Your Documents: documents produced by you using the Services including any we host.
1 INTERPRETATION
1.2 In the interpretation of these Terms, the following provisions apply unless the context otherwise requires:
1.2.1 Headings are inserted for convenience only and do not affect the interpretation of these Terms.
1.2.2 A reference to 'dollars' or '$' means New Zealand dollars and all amounts payable under these Terms are payable in New Zealand dollars.
1.2.3 A reference to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision.
1.2.4 A reference to any document or these Terms is to that document or these Terms as amended, novated, supplemented or replaced.
1.2.5 A reference to a clause, part, schedule or attachment is a reference to a clause, part, schedule or attachment of or to these Terms.
1.2.6 An expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or governmental agency.
1.2.7 Where a word or phrase is given a defined meaning, another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning.
1.2.8 A word which indicates the singular also indicates the plural, a word which indicates the plural also indicates the singular, and a reference to any gender also indicates the other genders.
1.2.9 A reference to the word 'include' or 'including' is to be interpreted without limitation.
2 ORDER FORMS AND SCHEDULES
2.1 The Schedules to these Terms set out specific terms that apply to each type of Service. If you are not being supplied with a type of service listed in a Schedule, that Service Schedule will not apply (unless you subsequently purchase or access those Services, in which case those terms will apply from the earlier of the date we issue an Order Form for them (if applicable) and / or the date you first access the Services).
3 DURATION OF THESE TERMS
3.1 These Terms will commence on the Commencement Date and:
3.1.1 subject to clause 3.1.2 below, will continue for the initial term specified in the Order Form. The Term of these Terms will automatically renew for successive terms equal to the Renewal Period, unless either party gives the other written notice of non-renewal at least 30 days before the expiry of the then-current term; or
3.1.2 in respect of the MiProducts Services only, continue for the Term.
4 DATA
4.1 Both parties will comply with the Privacy Act 2020 in the performance of their obligations under these Terms and the supply and use of the Services.
4.2 As between the parties, you will own all right, title and interest in and to all of the Customer Data and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data. We recommend that you maintain your own backup of Customer Data.
4.3 Our Privacy Policy, available at masterspec.co.nz/Privacy/7344/ or such other website address as may be notified to you from time to time, sets out how we collect, use, disclose and otherwise process personal information, including any personal information contained in Customer Data.
4.4 You acknowledge and agree that:
4.4.1 we may:
(a) use Customer Data and information about you and your Authorised Users’ use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
(b) use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights;
4.4.2 our rights under clause 4.4.1(a) above will survive termination of expiry of these Terms; and
4.4.3 title to, and all IPRs in, Analytical Data is and remains our property.
4.5 You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Customer Data or other material provided by you or an Authorised User to us, or our processing of the Customer Data or other material, infringes the rights of that third party (including IPRs and privacy rights) or that the Customer Data or other material is objectionable, incorrect or misleading.
4.6 Except as stated otherwise in these Terms, you are responsible for procuring all third party licences, authorisations and consents required for you and your Authorised Users’ use of Services, including to use, store and input Customer Data into, and process and distribute Customer Data through, the Services.
4.7 Without limiting any other right or remedy available to us under these Terms or at law, we may restrict or suspend your access to and use of the Services and/or delete, edit or remove the relevant Customer Data if we consider that you or any of your Authorised Users have:
4.7.1 undermined, or attempted to undermine, the security or integrity of the Service or Documentation;
4.7.2 used, or attempted to use, the Service or Documentation:
(a) for improper purposes;
(b) in a manner, other than for normal operational purposes, that reduces the operational performance of the Service;
(c) to transmit or store any Customer Data that breaches or may breach these Terms or any third party right (including IPRs and privacy rights), or that is or may be objectionable, incorrect or misleading; or
(d) otherwise breached these Terms or any requirements in any Documentation.
5 ACCESS TO THE SERVICES
5.1 Where applicable, we will use reasonable endeavours to ensure that the Services and Documentation are accessible at all times, except for:
5.1.1 planned maintenance (which we will use reasonable endeavours to give advance notice of);
5.1.2 unplanned or emergency maintenance, provided that we have used reasonable endeavours to give you as much advance notice as reasonably possible; and
5.1.3 downtime caused by outages or maintenance of the Services or infrastructure used to supply the Services.
5.2 We will also take reasonable steps to ensure that Your Documents held by us online are kept secure and remain accessible to you during the Term. However, we do not warrant that access to the Services or to Your Documents held by us online will be free from delay, interruption or restriction. We are not liable for any direct or indirect costs, losses or claims if access to the Services, Documentation or Your Documents is interrupted, restricted or delayed.
5.3 We do not warrant that:
5.3.1 the Services are error-free, accurate, up-to date;
5.3.2 the Services, Documentation and/or the information obtained by you through the Services will meet your requirements; or
5.3.3 our Services, Documentation, Website, third party services and websites referenced or linked to in the Services are free from any viruses or other defects.
5.4 The Services may interoperate or interface with or reference third party services, including the Standards New Zealand's Online Library. We do not make any warranty or representation about any third party services or features, including in relation to their availability, functionality, fitness for purpose or accuracy. Without limiting the foregoing, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make that feature available to you and you are not entitled to any refund, discount or other compensation.
5.5 You acknowledge that the Services may link to third party websites or feeds that are connected or relevant to the Services. We make no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third party website, or any transactions completed, and any contract you enter, with any such third party. If you would like to link your website to our Website, you must first obtain our written consent.
5.6 You are responsible for ensuring the Services meet your individual requirements (including any material provided, accessed or referenced as part of the Services, including on any websites or otherwise).
6 INTELLECTUAL PROPERTY
6.1 You acknowledge and agree that we and/or our licensors own all IPRs in the Services, our Website, the Documentation and all underlying systems, algorithms, templates and data (and databases) used to run or deliver the Services (Our IPRs). We grant you a non-exclusive, non-transferable licence to use, during the Term, Our IPRs solely for the purposes of receiving the Services in accordance with these Terms, provided that in doing so, you will adhere to such guidelines relating to the use of Our IPRs we provide to you. You may not reproduce or alter, or engage any party to reproduce or alter, Our IPRs without our prior written consent.
6.2 We acknowledge and agree that you or your licensors own all IPRs in the Customer Data, Your Documents, except where Your Documents incorporate Our IPRs.
6.3 Except as expressly stated herein, these Terms do not grant you any rights to, under or in, Our IPRs, or any other rights or licences in respect of the Services or the Documentation.
6.4 Each party confirms that it has all the rights in relation to its IPRs that are necessary to grant all the rights it purports to grant under, and in accordance with, these Terms.
6.5 If you provide us with ideas, comments or suggestions relating to the Services, all IPRs in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us, and we may use or disclose the feedback for any purpose.
7 CONFIDENTIALITY
7.1 Each party undertakes that it shall keep the other party's Confidential Information confidential and shall not at any time during or after the Term disclose to any person any Confidential Information of the other party, except as permitted by clause 7.2.
7.2 Each party may disclose the other party's Confidential Information:
7.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with these Terms. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's Confidential Information comply with this confidentiality clause; and
7.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.3 No party shall use the other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with these Terms.
7.4 Unless otherwise agreed by the parties, we may make public announcements or press releases in respect of our relationship with you, including listing you as our customer on our Website or other marketing material, and you grant us a non-exclusive licence for the Term to use your logos and trade marks for this purpose.
7.5 We will keep Your Documents confidential. We may however engage in anonymised analysis of material in Your Documents to improve and extend the services we provide, and may share the results of such analysis with our business partners.
8 FEES
8.1 Any Fees for our provision of the Services to you must be paid by you in accordance with the payment terms and in the manner specified in the Order Form. If there is no Order Form or the Order Form does not specify payment terms, you must pay us the Fees for:
8.1.1 Subscription Services monthly in advance;
8.1.2 Product Listing Services (PTS listings only) annually in advance; and
8.1.3 any other Services, monthly in arrears.
8.2 Unless otherwise specified in the Order Form, any Fees are payable:
8.2.1 for Services payable monthly (in advance or arrears), by the 20th of the month in which the invoice is rendered; and
8.2.2 for Services payable annually in advance, by the 20th of the month following the month in which the invoice is rendered.
8.3 If we have not received payment by the due date, without prejudice to any other rights and remedies we may have:
8.3.1 we may, without any liability, restrict or disable your use and/or access to the Services and shall be under no obligation to provide any or all of the Services while any invoice(s) remain unpaid; and
8.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of our primary trading bank from time to time, commencing on the due date and continuing until fully paid.
8.4 All amounts and Fees stated or referred to in these Terms:
8.4.1 shall be payable in New Zealand dollars;
8.4.2 are non-cancellable and non-refundable; and
8.4.3 are exclusive of GST.
8.5 We shall be entitled to increase any Fees for the Services from time to time after first giving you 30 days’ prior notice (which may be given by updating the fees on our Website). If you do not wish to pay the increased Fees, you may terminate these Terms on at least 14 days’ notice, provided we receive the notice before the effective date of the Fees increase. If you do not terminate these Terms in accordance with this clause, you are deemed to have accepted the increased Fees.
9 VARIATIONS
9.1 We may make changes to the Services and Documentation from time to time (such as releasing upgrades or new versions of our proprietary software comprised in the Services, or updating user guides or policies within the Documentation).
9.2 We may vary these Terms at any time. You should review the most current form of these Terms regularly. We will post the most current form on the Website. We will notify you of the change by email or by posting a notice on the Website. Unless stated otherwise, any change takes effect from the date set out in the notice, provided that such change cannot take effect prior to the date of the notice. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Services from the date on which these Terms are changed, you agree to be bound by the changed Terms. These Terms were last updated on 16 September 2023.
10 TERMINATION AND SUSPENSION
10.1 We may terminate these Terms immediately if you are in breach of any of your obligations under these Terms.
10.2 Termination may be of these entire Terms or any Service, system or tool provided to you.
10.3 On termination of these Terms for any reason:
10.3.1 all licences we grant you under these Terms, including in respect of Our IPRs, shall immediately terminate; and
10.3.2 you shall immediately:
(a) cease all use of the Services and/or the Documentation;
(b) cease all direct or indirect use of Our IPRs, including any references to Our IPRs in Your Documentation, your websites or any other medium or collateral; and
(c) deliver to us or destroy (without retaining copies) all materials and items bearing Our IPRs and all other Confidential Information;
10.3.3 you will immediately pay us any outstanding Fees and, in respect of Services supplied but for which no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt;
10.3.4 we may destroy or otherwise dispose of any of the Customer Data. We may, if requested by you prior to the termination of these Terms, agree to make available to you for download the Customer Data in our possession, for a period we specify, subject to you paying the applicable Fees we specify; and
10.3.5 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination shall not be affected or prejudiced.
10.4 Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Services, Documentation (including suspension of all licences we grant you under these Terms) and/or delete, edit or remove the relevant Customer Data if:
10.4.1 we reasonably consider that you or your personnel have undermined, or attempted to undermine, the security or integrity of the Service or any underlying systems;
10.4.2 we reasonably consider that you or your personnel have used, or attempted to use, the Services:
(a) for improper purposes;
(b) in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Services; or
(c) transmitted, inputted or stored any Customer Data that breaches these Terms or any third party right (including IPRs and privacy rights), or that is objectionable, incorrect or misleading; or
10.4.3 you or any of your personnel have otherwise breached these Terms.
10.5 All clauses of these Terms that are intended, either expressly or by implication, to survive expiry and termination shall remain in full force and effect.
11 DISCLAIMERS, WARRANTIES AND INDEMNITY
11.1 We do not endorse any products profiled in our Masterspec branded specification sections or referenced in any part of the Services, Documentation or our Website.
11.2 You will notify us as soon as possible if you identify any errors or ambiguities in the Services or information made available through the Services.
11.3 You will not:
11.3.1 resell, provide third parties access to, or otherwise commercially exploit the Services, Documentation or any part of them;
11.3.2 access all or any part of the Services or Documentation in order to build a product or service which provides similar functionality to or otherwise competes with the Services;
11.3.3 access, store, distribute or transmit any viruses or other malware, or any material during the course of your use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; or
(b) is otherwise illegal or causes damage or injury to any person or property,
and we reserve the right, without liability or prejudice to our other rights, to disable your access to the Services, Documentation and any other material, if you or an Authorised User breaches this clause.
11.4 Each party warrants that:
11.4.1 in complying with these Terms, it will not breach any other contract, any judgment or court order;
11.4.2 it has all necessary government and regulatory approvals, consents, permits and licences to perform its obligations under these Terms; and
11.4.3 it will comply with all applicable laws insofar as such laws are relevant to the provision or receipt of the Services.
11.5 You will defend, indemnify and hold harmless us against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection:
11.5.1 with your use of the Services and/or Documentation; and
11.5.2 any actual or alleged claim by a third party that any material provided by you or an Authorised User, or our processing of any of your data, content or other material, infringes the rights of that third party (including IPRs and privacy rights) or that the data, content or other material is objectionable, incorrect or misleading;
provided that:
11.5.3 you are given prompt notice of any such claim;
11.5.4 we provide you with reasonable co-operation in the defence and settlement of such claim, at your expense; and
11.5.5 you are given sole authority to defend or settle the claim.
11.6 We are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
11.7 Except as set out in these Terms, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms.
11.8 Applicable law in some jurisdictions may give you warranties, remedies or guarantees that cannot be excluded or modified by contract. Nothing in these Terms is intended to exclude such warranties, remedies or guarantees, however, our liability for any breach of such warranty or guarantee is, to the extent permitted by law limited, at our option, to:
11.8.1 supplying the Services again; or
11.8.2 paying the costs of having the Services supplied again.
11.9 The parties acknowledge and agree that where both parties are in trade, the Services are supplied and acquired in trade, and accordingly the parties agree to contract out of the provisions of the Consumer Guarantees Act 1993 and sections 9, 12A, 13, and 14(1) of the Fair Trading Act 1986.
11.10 Nothing in these Terms limit:
11.10.1 your payment obligations under these Terms;
11.10.2 your liability under any indemnity given under these Terms; or
11.10.3 any liability which cannot legally be limited.
11.11 Subject to clause 11.10:
11.11.1 our total aggregate liability to you under or in connection with these Terms is limited in the aggregate to any Fees paid or payable by you for the Services in in the Contract Year in which the event giving rise to liability occurred; and
11.11.2 we will not be liable under or in connection with these Terms for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms.
12 FORCE MAJEURE
12.1 We shall have no liability to you under these Terms if we are prevented from or delayed in performing our obligations under these Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party), failure of a utility service or transport or telecommunications network (including cloud services or infrastructure on which the Service is hosted), act of God, war, riot, civil commotion, malicious damage, epidemic or pandemic, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
13 ASSIGNMENT AND OTHER DEALINGS
13.1 You shall not assign, novate, transfer, subcontract, delegate or deal in any other manner with any of your rights and obligations under these Terms without our prior written consent.
13.2 We may at any time assign, novate, transfer, subcontract, delegate or deal in any other manner with any or all of our rights and obligations under these Terms without further consent.
14 DISPUTES
14.1 Before taking any court action, a party must use reasonable endeavours to resolve any dispute under, or in connection with, these Terms through good faith negotiations.
14.2 Each party must, to the extent possible, continue to perform its obligations under these Terms even if there is a dispute.
14.3 This disputes clause does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
15 WAIVER
15.1 A waiver of any right or remedy under these Terms or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
15.2 A failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Terms or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16 RIGHTS AND REMEDIES
16.1 The rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
17 SEVERANCE
17.1 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms.
17.2 If any provision or part-provision of these Terms is deemed deleted under clause 17.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
18 ENTIRE AGREEMENT
18.1 These Terms (including the Order Form and Schedules) constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.2 We will issue Order Forms. No terms of trade, invoice terms, purchase orders or similar documents issued by you will be deemed to be an Order Form or otherwise form part of these Terms and will be of no force or effect unless they are signed by our authorised representative and expressly state that they will apply notwithstanding this clause.
19 CONFLICT
19.1 If there is an inconsistency between any documents which are part of these Terms, the order of precedence will be as follows:
19.1.1 any Order Form;
19.1.2 the applicable Service specific terms (Schedules);
19.1.3 these General Terms and Conditions.
20 NO PARTNERSHIP OR AGENCY
20.1 Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
20.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
21 THIRD PARTY RIGHTS
21.1 These Terms are not intended to confer a benefit on any person or class of persons who is not a party to it.
22 NOTICES
22.1 If we need to contact you, we may do so by email set out in an Order Form or by posting a notice on the Website. You agree that posting a notice on the Website satisfies all legal requirements in relation to written communications. You may give us notice under or in connection with these Terms by email to gen@masterspec.co.nz, with ‘Legal Notice’ in the subject line.
22.2 Notices delivered by hand are served when delivered; by first class post (or equivalent) are served two business days after posting; and by email are served when transmitted (without ‘bounce-back’ or other error message).
23 GOVERNING LAW AND JURISDICTION
23.1 These Terms are governed by New Zealand law and the New Zealand courts have exclusive jurisdiction.
SCHEDULE 1: SUBSCRIPTION SERVICES TERMS
1 If you access or use the Subscription Services, the terms set out in this Schedule 1 will apply in addition to the terms of the General Terms and Conditions.
2 All capitalised terms not defined in this Schedule 1 have the meaning given to them in the General Terms.
3 We:
3.1 will perform the Subscription Services substantially in accordance with the Documentation.
3.2 grant you a non-exclusive, non-transferable non-sublicensable licence to access and use, and to permit the Authorised Users to access and use:
(a) the Subscription Services during the Term solely for your internal business operations and only for production of project documents; and
(b) prepare, reproduce, print, download, and use a reasonable number of copies of the Documentation as may be necessary for your and your Authorised Users' use of the Subscription Services;
3.3 we reserve the right to decline to register or to suspend, limit, cancel or disable your access to the Subscription Services without prior notice if we:
(a) reasonably believe that you or any Authorised Users breach any of the Terms or your use of the Subscription Services is improper;
(b) consider it necessary due to technical or security issues; or
(c) are requested to do so by a government or law enforcement agency.
4 You:
4.1 must, and must ensure that your Authorised Users, use the Subscription Services in accordance with these Terms and the Documentation (including any acceptable use policies included in the Documentation);
4.2 must only use the Subscription Services on a computer terminal, laptop, tablet, or other electronic device, accessed via your authorised login(s);
4.3 must ensure that you use the most-up-to date version of the Subscription Services;
4.4 acknowledge that the Subscription Services are designed for online use and not for use solely on local drives;
4.5 acknowledge that the Subscription Services will not always be available or uninterrupted;
4.6 must not modify, adapt, translate, de-compile, reverse compile, disassemble, reverse engineer, create derivative works from or otherwise reduce to human-perceivable form all or any part of the Subscription Services except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Terms;
4.7 must use best endeavours to prevent any unauthorised access to, or use of, the Subscription Services and/or the Documentation and, in the event of any such unauthorised access or use, you must promptly notify us;
4.8 must use best endeavours to prevent any unauthorised access to, or use of, the Product Listing Services and/or the Documentation and, in the event of any such unauthorised access or use, you must promptly notify us;
4.9 are responsible for maintaining the confidentiality of your Masterspec account and password and for restricting access to your account, and you agree to accept responsibility for all activities that occur under your account or password;
4.10 must ensure that:
(a) the Authorised Users use the Subscription Services and the Documentation in accordance with these Terms and you shall be responsible for its Authorised Users' acts and omissions as if they were your acts and omissions; and
(b) your network and systems comply with the relevant specifications provided by us from time to time (including any specifications or minimum requirements specified in the Documentation);
4.11 are solely responsible for any additions, alterations or variations that you make to the Subscription Services, including as incorporated into Your Documents;
4.12 will not use the Subscription Services for the provision of a commercial document preparation service;
4.13 understand and acknowledge that the Masterspec Tools and Systems utilise and interface with CAD software developed and owned by third party vendors. You undertake that you will not use the Masterspec Tools and Systems or the Subscription Services in breach of any restrictions in your licence agreements with such third party vendors; and
4.14 acknowledge that where you elect to receive access to the Standards New Zealand's Online Library as part of the Subscription Services:
(a) your use of the Standards New Zealand's Online Library is subject to the terms available at Terms And Conditions (as updated from time to time), except that your use of the Standards New Zealand's Online Library runs for as long as you continue to pay us the subscription fees for your use of the Standards New Zealand's Online Library; and
(b) the subscription fees for your use of the Standards New Zealand's Online Library is included in the Fees.
5 Either party may terminate the Subscription Services by giving the other one month’s written notice at any time after 12 months from the Commencement Date.
SCHEDULE 2: PRODUCT PARTNER SERVICES TERMS
1 If the Order Form states that you are to receive the Product Partner Services or we otherwise provide you with Product Partner Services, the terms set out in this Schedule will apply in addition to the terms in the General Terms.
2 All capitalised terms not defined in this Schedule 2 have the meaning given to them in the General Terms.
3 In this Schedule 2 the following definition applies:
3.1 Branded Section: means the section(s) in the Masterpec specification system with branding/logos of the manufacturers and/or product partners who have listed their products with us.
4 You will:
4.1 ensure that the Branded Sections are accurate and contain up to date technical information;
4.2 provide us will all necessary information when Branded Sections are required to be amended to reflect changes to the relevant products and/or their installation requirements;
4.3 cooperate with us in the production and updating of Branded Sections for each of the listed product subjects; be solely responsible for the contents of the Branded Sections, including any summaries of the Branded Sections drafted or amended by us, provided you have approved the material drafted or amended by us;
4.4 indemnify us against any claims made against us directly or indirectly by any third party arising from:
(a) any person’s use or reliance on information contained within the Branded Sections or accessed via internet links to your website;
(b) the failure of or defect in any product profiled in the Branded Sections or accessed via internet link to your website; and
(c) any alleged breach of IPRs or any other proprietary rights, arising from the information provided by you and included in the Branded Sections or accessed via internet links to your website;
4.5 agree that we are not liable in contract, tort (including negligence) or otherwise, for any loss, damage or claim (including, without limitation, consequential loss or damage) suffered by you arising directly or indirectly from our inclusion of the product information in the Branded Sections; and
4.6 grant to us a non-exclusive, royally-free licence to use (and to sublicense the use to any Masterspec subscribers) any of your IPRs contained within the Branded Sections we produce under these Terms.
5 Amendments to the Branded Section in accordance with clause 6.1 are included in the Fees, unless the amendments take us eight or more hours to complete, in which case you must pay us for the work in excess of eight hours at the rates outlined in the Partner Schedule.
6 We will:
6.1 prepare draft Branded Sections and draft updated Branded Sections prior to each annual renewal date or other date as a result of changes made in accordance with clauses 4.2 and 5 4.3 for each of the listed product subjects and submit these to you for verification and approval (such approval not to be unreasonably withheld or delayed);
6.2 include the approved Branded Sections in appropriate Masterspec specification systems;
6.3 include internet links to your website in the Branded Sections. While we will take reasonable steps to ensure that the internet links are active, we are not responsible for ensuring the availability of any internet links;
6.4 offer a service in compiling and developing overall specification systems for the building and construction industry; and
6.5 retain the copyright of all Branded Sections and all other specification text we prepare for you.
7 The right to have your branded product listed in the relevant product type or category of the Branded Sections is not exclusive. You acknowledge that other parties’ products may be listed in the Branded Sections and those products may be the same as or similar to your products.
8 Either party may terminate the Product Partner Services by giving the other one month’s written notice at any time after 12 months from the Commencement Date.
9 On termination of these Terms for any reason:
9.1 we may remove your Branded Sections and all references to you, your branded product from Masterspec specification systems, our Website and any other Masterspec material; and
9.2 you must not purport to be Masterspec product partner or publish or otherwise distribute the Masterspec specifications whether via your website or otherwise.
SCHEDULE 3: MIPRODUCT SERVICES TERMS
1 If you access or use the MiProduct Services, the terms set out in this Schedule 3 will apply in addition to the terms and conditions of the General Terms.
2 All capitalised terms not defined in this Schedule 3 have the meaning given to them in the General Terms.
3 We will publish via the Website:
3.1 directory listings of New Zealand building and construction industry businesses, associations and other participants (known as Industry Suppliers); and
3.2 high-level information about the products, materials and services of such Industry Suppliers, standard product listings (Standard Listings) and product technical statements of Masterspec product partners (PTS).
4 If you wish to purchase any of the products, materials or services referenced in paragraph 3.2, you must contact the relevant Industry Supplier directly. We do not act as the agent of any Industry Supplier in relation to such products, materials or services.
5 We are not responsible for:
5.1 the conduct or performance of any Industry Suppliers;
5.2 the quality, suitability, safety, legality or availability of any of their products, materials or services; or
5.3 ensuring the accuracy of Industry Suppliers' listings, advertisements and product information, Standard Listings and PTS on the Website.
(Our Website provides a venue for Industry Suppliers to list and advertise their products, materials and services.)
6 Any dealing between you and an Industry Supplier or advertiser on the Website is solely between you and that third party and we are not responsible or liable for any part of any dealing.
7 The inclusion of Industry Suppliers' listings, advertisements and product information (including PTS and Standard Listings) on the Website will not amount to our endorsement of that listing, advertisement, product information, Standard Listings and PTS.
8 The MiProduct Services and Website are made available free of charge. We may suspend or withdraw or restrict the availability of all or any part of the MiProduct Services and Website for business and operational reasons. We will endeavour to use reasonable endeavours to give you reasonable notice of any suspension or withdrawal.
SCHEDULE 4: PRODUCT INFORMATION REVIEW SERVICES TERMS
1 If the Order Form states that you are to receive the Product Information Review Services or we otherwise provide you with Product Information Review Services, the terms set out in this Schedule will apply in addition to the terms in the General Terms and Conditions.
2 All capitalised terms not defined in this Schedule 4 have the meaning given to them in the General Terms.
3 In this Schedule 4 the following definitions apply:
3.1 Product Review Report: means a report prepared in accordance with clause 5.1
3.2 Product Technical Information: means the information about your product provided to us in accordance with clause 4.1.
3.3 Regulations: means Building (Building Product Information Requirements) Regulations 2022.
4 You:
4.1 will provide us with the Product Technical Information in relation to the relevant product;
4.2 will ensure that the Product Technical Information is accurate and up to date;
4.3 will be solely responsible for the contents of the Product Technical Information;
4.4 will notify us of any changes in Product Technical Information or quality assurance measures associated with the relevant product prior to marketing the product to third parties or making it publicly available;
4.5 warrant that the product is compliant in all aspects with the Product Technical Information;
4.6 indemnify us against any claims made against us directly or indirectly by any third party arising from:
(a) any person’s use or reliance on information contained within the Product Technical Information or accessed via internet links to your website;
(b) the failure of or defect in any product profiled in the Product Technical Information or accessed via internet link to your website; and
(c) any alleged breach of IPRs or any other proprietary rights, arising from the information provided by you and included in the Product Technical Information or accessed via internet links to your website;
4.7 agree that we are not liable in contract, tort (including negligence) or otherwise, for any loss, damage or claim (including, without limitation, consequential loss or damage) suffered by you arising directly or indirectly from your reliance on the Product Review Report;
4.8 agree that the Product Review Report:
(a) must only be used for your internal business purposes; and
(b) must not be shared with any third party, published or otherwise distributed (whether via your website or otherwise) without our prior written consent;
4.9 acknowledge that our assessment set out in the Product Review Report is based solely on our experience as a construction specification publisher, and is not an authority on whether the product, in fact, complies with the information requirements set out in Schedules 1 or 2 (as relevant) of the Regulations.
5 We will:
5.1 provide you with a Product Review Report setting out whether we consider the relevant product complies with the information requirements set out in Schedules 1 or 2 (as relevant) of the Regulations as at the date of the Product Review Report; and
5.2 retain the copyright of the Product Review Report prepared for you.
6 Either party may terminate the Product Information Review Services by giving the other five business days' written notice at any time after from the Commencement Date.
SCHEDULE 5: PRODUCT LISTING SERVICES TERMS
1 If the Order Form states that you are to receive Product Listing Services or we otherwise provide you with Product Listing Services, the terms set out in this Schedule will apply in addition to the terms in the General Terms and Conditions.
2 All capitalised terms not defined in this Schedule 5 have the meaning given to them in the General Terms.
3 In this Schedule 5 the following definition applies:
3.1 PTS: means an expanded product listing, based on the MiProducts template, which delivers comprehensive product information to the specifier via the Masterspec specification system.
3.2 Standard Listing: means a standard product listing, which includes basic products details, but not detailed product technical specifications.
4 You:
4.1 will provide product information for each product in the form of a PTS or Standard Listing to be listed on the MiProducts database and submit these to us for publishing;
4.2 are responsible for ensuring the contents of the PTS and Standard Listings are accurate and up to date;
4.3 are solely responsible for the contents of the PTS and Standard Listings, including any amendments to the product information and PTS and Standard Listings you make as a result of any feedback we provide to you;
4.4 indemnify us against any claims made against us directly or indirectly by any third party arising from:
(a) any person’s use or reliance on information contained within PTS or Standard Listings or accessed via internet links to your website;
(b) the failure of or defect in any product profiled in the PTS or Standard Listings or accessed via internet link to your website; and
(c) any alleged breach of IPRs or any other proprietary rights, arising from the information provided by you and included in the PTS or Standard Listings or accessed via internet links to your website;
4.5 agree that we are not liable in contract, tort (including negligence) or otherwise, for any loss, damage or claim (including, without limitation, consequential loss or damage) suffered by you arising directly or indirectly from our inclusion of the PTS or Standard Listings in the MiProducts database;
4.6 grant to us a non-exclusive, royally-free licence to use (and to sublicense the use to any MiProducts database user) any of your IPRs and content contained within the PTS or Standard Listings we produce or publish under these Terms;
4.7 acknowledge that the right to have your PTS and Standard Listings listed in the MiProducts database is not exclusive. You acknowledge that other parties’ products PTS and Standard Listings may be in the MiProducts database and those products may be the same as or similar to your products;
4.8 must not act in a manner that will negatively impact our goodwill, brand or reputation;
4.9 must use best endeavours to prevent any unauthorised access to, or use of, the Product Listing Services and/or the Documentation and, in the event of any such unauthorised access or use, you must promptly notify us;
4.10 are responsible for maintaining the confidentiality of your MiProducts supplier account and password and for restricting access to your account, and you agree to accept responsibility for all activities that occur under your account or password.
5 We:
5.1 will provide you with the MiProducts template for PTS and required information fields for Standard Listings;
5.2 will include the approved PTS in the MiProducts database;
5.3 will include internet links to your website in the PTS and Standard Listings. While we will take reasonable steps to ensure that the internet links are active, we are not responsible for ensuring the availability of any internet links;
5.4 retain the copyright of all PTS and Standard Listings prepared for or by us for use in the MiProducts database;
5.5 reserve the right to decline to register or to suspend, limit, cancel or disable your access to your MiProducts supplier account or any of your MiProducts listings without prior notice if we:
(a) reasonably believe that you or any Authorised Users breach any of the Terms or your use of the Product Listings Services is improper;
(b) if we consider it necessary due to technical or security issues;
(c) if we are requested to do so by a government or law enforcement agency; or
(d) withdraw or restrict the availability of all or any part of the Product Listing Services and Website for business and operational reasons;
5.6 reserve the right to remove your Standard Listing or PTS from the MiProducts database without prior notice if we reasonably believe that your Standard Listing or PTS is inaccurate or out-of-date.
6 The Standard Listing services are made available free of charge. We may suspend or withdraw or restrict the inclusion of free Standard Listings in the Product Listing Service at any time for business or operational reasons, including removing Standard Listings from the MiProducts database and/or Website. We will use reasonable endeavours to give you advance notice of any suspension or withdrawal.
7 On termination of these Terms for any reason we may remove your PTS and / or Standard Listings and all references to you and your product(s) (including internet links) from the MiProducts database, our Website and any other Masterspec material.