uReview may amend these Terms at any time by posting an amended or updated version on the Site. If the Client does not accept the amended or updated Terms, it may terminate the Terms by 10 days’ notice in writing to uReview, provided that notice expires within 30 days of the posting of the amended or updated Terms. To avoid doubt, no refund of Fees will be payable in respect of that termination. If the Client continues to use the Services or the Application after the expiry of 30 days from the posting of amended or updated Terms the Client will be deemed to have accepted the amended or updated Terms.
1.1 Definitions: in these Terms:
“Application” means the appraisal and analysis tool known as “uReview” as updated from time to time by uReview in its discretion and made available via the Site as part of the Services.
“Appraisal” means a series of questions for Appraisal Participants created by the Client using the Application that may be related to a review of a specific employee’s performance, a general employee survey, a survey of customers or other matters. Appraisal Participants can respond to those questions using the Mobile Application or by logging onto the Application at the Website.
“Appraisal Data” means the raw data collected by uReview from Appraisal Participants in respect of an Appraisal.
“Appraisal Participant” means an individual (who may bean employee or customer of the Client) selected by the Client to participate in an Appraisal.
“Anonymous Appraisal” means an Appraisal which the Client has selected (using the Application) before it is carried out will be an “Anonymous Appraisal”.
“Commencement Date” means the date when:
a. the Client has completed the account registration process in respect of the Application and agreed to these Terms;
b. uReview has received payment of the applicable Fees; and
c. uReview has confirmed in writing its acceptance of the Client.
“Confidential Information” means all information (whether that information is oral, written or embodied in any other physical or electronic form) which is obtained directly or indirectly from another party under or in connection with these Terms, and which is marked or stated to be confidential or which by its nature is reasonably intended to be confidential.
“Client” means the person which has registered to receive the Services and who has been accepted as a client by uReview.
“Client Data” means:
a. all information provided by the Client to the Application, including all Appraisal questions created by the Client; and
b. all information generated by the Application in respect of the Client, including all Appraisal Data except that derived from an Anonymous Appraisal and all aggregated information and analysis of the Appraisal Data.
“Fees” means the charges payable by the Client as set out in the fee table attached to these Terms or if no hard copy of these Terms has been signed by the parties means the fee table set out on the Site (which in either case may change from time to time by notice to the Client).
“Intellectual Property” means any and all intellectual and industrial property rights throughout the world including rights in respect of, or in connection with: copyright (including future copyright and rights in the nature of, or analogous to, copyright); trade marks; inventions (including patents); any confidential information; service marks; designs; and whether or not existing now and whether or not registered or registrable and includes any right to apply for the registration of those rights and includes all renewals and extensions.
“Mobile App” means the uReview mobile application that can be downloaded from the app stores notified by uReview which enables Appraisal Participants to complete Appraisals on their handheld devices.
“uReview” means uReview Limited, a New Zealand company (company number 4620359)with its registered office at 9 Austin Road, Greenhithe, Auckland.
“Related Company” has the meaning given to it in the Companies Act 1993.
“Sales Tax” means goods and services tax, value added tax or equivalent tax payable under any applicable law.
“Services” means the provision of access to the Application over the Site in accordance with these Terms and any other services which uReview agrees to provide the Client in respect of the Application from time to time.
“Site” means the website operated by uReview at the following url: ureview2.wpengine.com.
“Year” means a 12 month period starting from the Commencement Date or any anniversary of that date.
1.2 Interpretation: In these Terms, unless the context requires otherwise:
a. clause and other headings are for ease of reference only and do not affect the interpretation of these Terms;
b. words importing the singular include the plural and vice versa; and
c. a reference to :
i. a party includes that party’s permitted assigns;
ii. $ or dollars is reference to New Zealand currency;
iii. person includes a body corporate, unincorporated association or a partnership;
iv. including and similar words do not imply any limitation; and
v. a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
2.1 Term: These Terms commence on the Commencement Date and will continue for a period of 12 months (Initial Term). Unless either party gives notice prior that to the expiry of the Initial Term (or any subsequent renewal term) that it wishes these Terms to expire, these Terms will automatically renew for a further 12 months from the date of their scheduled expiry.
3.1 Services: In exchange for the Fees, uReview must provide the Services to the Client.
3.2 Right of use: The Client may access and use the Application made available by uReview as part of the Services by logging on to its user account at the Site during the Term. The Client’s right to access and use the Application is non-exclusive, non-transferable, and subject to these Terms. The Client does not obtain the right under these Terms to run the Application on its own computer or any right to view or access the source or object code of the Application.
3.3 Updates to Application: The Client accepts and agrees that uReview may amend, update, and/or modify the Application at any time in its discretion.
3.4 No joint accounts or sub-licensing: Each organisation using the Application must register as a separate Client. No joint accounts or accounts for combined firms are permitted. A Client is not permitted to sub-licence or permit any other party (including any Related Company) to exercise its rights under these Terms.
4. CLIENT’S USE OF APPLICATION
4.1 Compliance: The Client must comply with all operating procedures, guidelines or acceptable use policies notified to it by uReview from time to time.
4.2 Authorisation of Appraisal Participants: The Client may use the Application to select up to the maximum number of Appraisal Participants applicable to the type of subscription it has purchased. Once selected, uReview must contact the Appraisal Participants via the email address provided to invite them to complete the Appraisal using the Mobile App. The Client must ensure that it has obtained the prior consent of each Appraisal Participant to be contacted by uReview.
4.3 Number of Appraisals: The Client must not use the Application to carry out more than the maximum number of Appraisals applicable to the type of subscription it has purchased.
4.4 Access conditions: The Client must ensure that all usernames and passwords required to access the Application are kept secure and confidential. The Client must immediately notify uReview of any unauthorised use of any passwords or any other breach of security.
4.5 Deletion of Client Data: The Client must ensure that all Client Data is deleted from the Application once it is no longer necessary to retain it.
4.6 General Purposes: The Client must only use the Application and the Mobile App for its internal business purposes.
4.7 Acceptable use: The Client must not use the Application or Mobile App for any illegal purpose or activities, or for the transmission or storage of material which is unlawful, defamatory, harassing, invasive of any individual’s privacy, abusive, harmful, threatening, vulgar, pornographic, obscene, otherwise objectionable, or offends religious sentiments, promotes racism, or contains viruses or that which may infringe the Intellectual Property of any third party.
4.8 Specific restrictions: When accessing and using the Application or Mobile App, the Client must:
a. not attempt to undermine the security or integrity of uReview’s computing systems or networks or, where the Application is hosted by a third party, that third party’s computing systems and networks;
b. not use, or misuse, the Application or Mobile App in any way which may impair the functionality of the Application, Mobile App or Site, or other systems used to deliver the Application or impair the ability of any other user to use the Application, Mobile App or Site;
c. not attempt to view, access or copy any materials or data other than those which relate to the Client and which the Client is authorised to access;
d. not transmit, or input into the Application, Mobile App or Site, any files that may damage any other person’s computing devices or software;
e. not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Application, Mobile App or operate the Site (except as is strictly necessary to use either of them for normal operation) nor communicate the same to any person nor directly or indirectly allow or cause a third party to do so; and
f. notify uReview if it becomes aware that a person may have unauthorised access, possession or use of any part of the Application, Mobile App or Site
4.9 Consequences of unauthorised use: If the Client fails to pay any amount owed to uReview (including the Fees) under these Terms by the due date or if there are reasonable grounds to believe that the Client has breached any other provision of these Terms, uReview may take one or more of the following actions in its absolute discretion:
a. limit or suspend the provision of all or any part of the Services to the Client;
b. limit or suspend the Client’s access to the Application or any part of the Application;
c. limit or suspend an Appraisal Participant’s access to the Mobile App or any part of the Mobile App;
d. terminate these Terms immediately by notice to the Client in writing; and/or
e. delete, edit or remove any of the relevant material or information.
5.1 Fees payable in advance: The Client must pay all Fees to uReview in advance. If the Client wishes to upgrade its subscription type, it must pay the additional Fees applicable to the new subscription type prior to being granted access.
5.2 Invoice: uReview must provide the Client an electronic invoice in respect of the Fees. The Client must pay invoices within 7 days of the date of invoice or before the first day of the period to which the invoice relates, whichever is earlier (“Due Date”).
5.3 Fees are non-refundable: All Fees are non-refundable and if these Terms are terminated prior to the scheduled expiry date for any reason, no portion of the Fees will be repaid to the Client.
5.4 Taxes: All amounts payable under these Terms by the Client (including the Fees):
a. do not include any Sales Tax which, if applicable and if uReview is required to account for must be paid by the Client in addition to such amounts; and
b. must be paid gross without deduction of any withholding taxes and, if subject to any withholding taxes, the Client must ensure that such sum is paid to uReview as will after deduction of any withholding tax, be equivalent to the amounts due.
6. uREVIEW’S OBLIGATIONS
6.1 Reasonable care and skill: uReview must exercise reasonable care and skill in providing the Services.
6.2 Application availability: Although uReview intends that the Application should be available during normal business hours in New Zealand, it is possible that on occasions the Application or Site may be unavailable to permit maintenance or other development activity to take place. uReview will use reasonable efforts to publish in advance details of that activity on the Site.
7.1 Client Confidentiality: The Client must preserve the confidentiality of any Confidential Information of uReview or any other person obtained in connection with these Terms or its receipt of the Services and must only use such Confidential Information for the purpose for which it was disclosed.
7.2 Exceptions: Clause 7.1 will not apply to any information which:
a. is or becomes public knowledge other than through a breach of these Terms;
b. is received from a third party who lawfully acquired it and who is under no obligation regarding its disclosure;
c. is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
d. is required to be disclosed by applicable law.
8. USE OF CLIENT DATA AND APPRAISAL DATA
8.1 Anonymous Appraisals: If the Client uses the Application to carry out an Anonymous Appraisal, despite any other provision of these Terms, uReview must:
a. not (either during the course of these Terms or after expiry or termination for any reason) disclose the raw Appraisal Data in respect of the Anonymous Appraisal to the Client; and
b. only make available to the Client aggregated Client Data in respect of the Anonymous Appraisal which does not include the name or contact details of any Appraisal Participant.
8.2 Client Data Confidential: uReview must use its best efforts to keep all Appraisal Data and Client Data held on the Application confidential and not to disclose it to third parties except:
a. to service providers working with uReview on the operation and ongoing development of the Application, Mobile App and/or Site;
b. in connection with a purchase or proposed purchase of the shares, business or assets of uReview; or
c. where required by law or any court, or in response to a request by a legitimate law enforcement agency.
8.3 Backups of Client Data: While uReview will take standard industry measures to back up all Client Data stored on the Application, the Client agrees to keep a separate back-up copy.
9. INTELLECTUAL PROPERTY
9.1 Application, Mobile App, and Site: All Intellectual Property in the Application, Mobile App and Site and any modifications to the Application, Mobile App or Site after the Commencement Date are owned solely by uReview and/or its licensors (if any).
9.2 Client Data: Subject to clause 9.1, the Client will own all Intellectual Property in the Client Data. The Client grants uReview a worldwide, non-exclusive, royalty free, sub-licensable, irrevocable licence to use, copy, modify, make available and communicate the Client Data for any purposes in connection with the provision of the Services and/or the operation and development of the Application, Mobile App and use of Client Data pursuant to these Terms.
9.3 Indemnity: The Client indemnifies uReview against any liability, claims, costs (including the actual legal fees charged by uReview’s lawyers) arising from any demand or claim by a third party that uReview’s use of any Client Data under these Terms:
a. infringes a third party’s Intellectual Property rights or privacy rights;
b. is defamatory, objectionable, obscene or harassing;
c. is unlawful in any way; or
d. is otherwise in breach of these Terms.
10. WARRANTIES AND ACKNOWLEDGEMENTS
10.1 Client has all rights and permissions: The Client warrants that it has all rights and has obtained all permissions necessary for uReview to contact the Appraisal Participants and use the Appraisal Data and Client Data in accordance with these Terms.
10.2 Appraisal Participant consent: Without limiting clause 10.1, the Client warrants that prior to selecting an Appraisal Participant within the Application, it has:
a. informed the Appraisal Participant about uReview, the Services, the Application, Mobile App and Appraisal to be conducted;
c. obtained the Appraisal Participant’s express consent to participate in the Appraisal.
10.3 Consumer guarantees: The Client warrants and represents that it is receiving the Services for the purposes of a business and that accordingly the Consumer Guarantees Act 1993 does not apply.
10.4 Compliance with laws: The Client warrants that it will comply with all applicable laws in respect of its use of the Services, the Application and information derived from the Application.
10.5 No other warranties: uReview gives no warranty in respect of the Services, the Application, Mobile App and/or Site except as expressly set out in these Terms. All implied or statutory conditions or warranties (including any warranty under the Sale of Goods Act 1908) are excluded.
11.1 Terminating by Client: The Client may terminate these Terms at any time by 30 days’ notice in writing to uReview, provided that no refund of Fees will be payable.
11.2 Termination without cause: uReview may terminate these Terms at any time for its convenience by 30 days’ notice in writing to the Client.
11.3 Termination by uReview for cause: uReview may terminate these Terms immediately by notice in writing if the Client:
a. is in breach of these Terms; or
b. becomes insolvent, goes into liquidation or has a receiver or manager appointed over any of its assets or makes any arrangement with its creditors, or becomes subject to any similar insolvency event in any jurisdiction.
11.4 Accrued rights: Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. Clauses that are intended to survive termination will continue in full force and effect.
12. CLIENTS RIGHTS FOLLOWING TERMINATION
12.1 Download of Client Data: The Client may access and download its Client Data in a *.csv format from within the Application at any time. In addition, within 30 days of termination or expiry of these Terms for any reason, uReview must, on request, promptly provide the Client with a copy of its Client Data in *.csv format.
13.1 uReview is Agent: The Client agrees that except as set out in clause 13.2, in collecting, holding and processing personal information in its provision of the Service, uReview is acting as an agent on behalf of the Client for the purposes of the Privacy Act 1993 and any other applicable privacy law. uReview must hold and process any personal information in accordance with the Client’s instructions as set out in these Terms or as otherwise agreed in writing. The Client must ensure uReview’s use of that personal information complies with the Privacy Act 1993 and any other applicable privacy law.
13.2 uReview is responsible: Despite clause 13.1, uReview is responsible (subject to the Client’s compliance with clause 10.2) for its use of Appraisal Data collected in respect of Anonymous Appraisals and for compliance with the Privacy Act 1993 and any other applicable privacy law in respect of that use of that Appraisal Data.
14. CONSENT TO EMAILS AND SMS
14.1 Consent: The Client agrees to receive emails and/or SMS messages from uReview with updates and information about the Services and/or the Application as well as information and offers about its other products and services.
15. LIMITATION OF LIABILITY
15.1 Excluded losses: uReview will not be liable for any loss of profit, loss of use of the Services or the Application, loss of data (including Client Data), loss of revenue or loss of production, even if the event was foreseeable or the possibility had been brought to the attention of uReview.
15.2 Indirect loss and loss caused by another: uReview will not be liable for:
a. any consequential indirect or special damage or loss of any kind; or
b. any failure to comply with these Terms or any loss or liability arising out of the actions or omissions of the Client or any Appraisal Participant.
15.3 Limitation on Liability: Despite any other provision of these Terms the total aggregate liability of uReview for all claims arising under or in connection with these Terms, the Services, Application, Mobile App and Site (including all claims for damage to property, personal injury or death) in any Year is limited to the total Fees paid by the Client under these Terms in the preceding Year, except in the first Year of these Terms, when it is limited to the total Fees paid by the Client prior to the first event giving rise to liability.
15.4 Time bar: uReview will not be liable to the Client in respect of any claim unless the Client has notified uReview of that claim within 12 months of the event giving rise to that claim being reasonably discoverable.
15.5 Force majeure: uReview will not be liable to the Client for any failure to comply with these Terms or delay in complying with these Terms to the extent caused by events beyond the reasonable control of uReview.
15.6 Separate Limitations: Each of the limitations and exclusions of liability set out in this clause 15 is a separate limitation or exclusion and applies regardless of whether liability arises in contract, tort (including negligence), breach of statutory duty, equity or otherwise. To the extent any particular limitation or exclusion is not permitted under applicable law, that limitation of exclusion will be deemed not to apply but will not affect any of the remaining limitations or exclusions under this clause 15.
16.1 Rights of third parties: No person other than the Client and uReview has any right to a benefit under these Terms or will have any right to enforce these Terms.
16.2 Waiver: All of uReview’s rights will remain in full force despite any delay in enforcement.
uReview will not be deemed to have waived any right unless that waiver is in writing and signed by a duly authorised officer of uReview. Any waiver will apply only to the particular matter in respect of which it is given.
16.3 Assignment: The Client must not assign or purport to assign (whether in whole or in part) its interest under these Terms without the prior written consent of uReview. Any transfer of shares, issuing of new shares, options or other arrangement which results in a change in effective control of the Client will be deemed to be an assignment for the purposes of this clause 16.3. uReview may assign its rights and obligations under these Terms (and may transfer its shares, issue new shares of make other arrangements): (i) to a Related Company at any time; or (ii) to a third party as part of the sale of all or a significant part of uReview’s shares, business or assets.
16.4 Subcontracting by uReview: uReview may subcontract the provision of the Services at any time in its discretion, including any hosting of the Application or Client Data.
16.5 Entire Agreement: These Terms express the complete agreement between the Client and uReview with respect to the Services and the Application. There has been no representation made by either party to the other except as expressly set out in this document.
16.6 Notices: Any notice to be given pursuant to these Terms must be in writing addressed to the party to whom it is given and left at or sent by e-mail to the address of that party as it may from time to time notify to the other and will be deemed to be served on the day so left or transmitted by e-mail.
16.7 Severability: If any provision of these Terms is, or becomes, unenforceable, illegal or invalid for any reason, these Terms will remain in full force apart from that provision which will be deemed deleted.
16.8 Governing Law and Jurisdiction: These Terms, the Services and the Client’s use of the Application will be governed by, and construed in accordance with, the laws of New Zealand. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of New Zealand with respect to any legal action, suit or proceeding or any other matter arising out of or in connection with these Terms.