Terms of Use

These Terms are binding on any use of products or services (the Service) and apply to You from the time that Magnetism provides You with access to the Service.

The Service will evolve over time based on user feedback. These Terms are not intended to answer every question or address every issue raised by the use of the Service. Magnetism reserves the right to change these terms at any time, effective upon the posting of modified terms and Magnetism will make every effort to communicate these changes to You via email or notification via the Website. It is likely the terms of use will change over time. It is Your obligation to ensure that You have read, understood and agree to the most recent terms available on the Website.

By registering to use the Service you acknowledge that You have read and understood these Terms and have the authority to act on behalf of any person for whom You are using the Service. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Service.

These Terms were last updated on 14th January 2022.

DEFINITIONS

"Agreement"

means these Terms of Use.

"Access Fee"

means the annual fee (excluding any taxes and duties) payable by You in accordance with the fee schedule set out on the Website (which Magnetism may change from time to time).

"Confidential Information"

includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.

"Data"

means any data inputted by You or with Your authority into the Service.

"Intellectual Property Right"

means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.

"Service"

means the Magnetism software made available as may be changed or updated from time to time by Magnetism.

"Website"

means the Internet site at the domain www.magnetismsolutions.com or any other site operated by Magnetism.

"Magnetism"

means Magnetism Solutions Limited which is a registered limited liability company in New Zealand.

"User"

means any person, other than the Subscriber, that uses the Service with the authorisation of the Subscriber from time to time.

"Subscriber"

means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.

"You"

means the Subscriber, and where the context permits, an Invited User. "Your" has a corresponding meaning.

SOFTWARE TERMS OF USE

Magnetism Software is designed for use by businesses and organisations either as standalone systems or components of a wider system. These Terms of Use are intended to explain our obligations as a software service provider and Your obligations as a customer. Please read them carefully.

These Terms are binding on any use of Magnetism software (the Service) and apply to You from the time that Magnetism provides You with access to the Service.

These Terms were last updated on 7 Sep 2021.

1. USE OF SOFTWARE

Magnetism grants You the right to access and use the Service. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Users, or any other applicable laws:

1.1 the Subscriber determines who is a User;

1.2 the Subscriber is responsible for all Users’ use of the Service;

2. YOUR OBLIGATIONS

2.1 Payment obligations:

Subscriptions are annual billing; an invoice for the annual Service Fee will be issued and dated on the date You subscribed to the Service and on each anniversary of this date. All invoices will include the Service Fee for the following 12 months of use. Magnetism will continue invoicing You annually until this Agreement is terminated in accordance with clause 7.

All Magnetism invoices will be sent to You, or to a Billing Contact whose details are provided by You, by email. You must pay or arrange payment of all amounts specified in any invoice by the due date for payment which shall be 14 days after the invoice date. You are responsible for payment of all taxes and duties in addition to the Service Fee.

2.2 General obligations:

You must only use the Service for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by Magnetism or condition posted on the Website. You may use the Service on behalf of others or in order to provide services to others but if You do so you must ensure that You are authorised to do so and that all persons for whom or to whom services are provided accept and comply with all terms of this Agreement that apply to You.

2.3 Access conditions:

2.3.1 As a condition of these Terms, when accessing and using the Service, You must:

2.3.1.1 not attempt to undermine the security or integrity of Magnetism’s computing systems or networks or, where the Service is hosted by a third party, that third party's computing systems and networks;

2.3.1.2 not use, or misuse, the Service in any way which may impair the functionality of the Service or other systems used to deliver the Service or impair the ability of any other user to use the Service;

2.3.1.3 not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Service is hosted;

2.3.1.4 not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Service.

2.4 Usage Limitations:

Use of the Service may be subject to limitations, including but not limited to monthly transaction volumes. Any such limitations will be advised.

2.5 Indemnity.

You indemnify Magnetism against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to Magnetism, including (but not limited to) any costs relating to the recovery of any Service Fees that are due but have not been paid by You.

3. CONFIDENTIALITY AND PRIVACY

3.1 Confidentiality:

Unless the relevant party has the prior written consent of the other or unless required to do so by law:

3.1.1 Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.

3.1.2 Each party's obligations under this clause will survive termination of these Terms.

3.1.3 The provisions of clauses 3.1.1 and 3.1.2 shall not apply to any information which:

3.1.3.1 is or becomes public knowledge other than by a breach of this clause;

3.1.3.2 is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;

3.1.3.3 is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or

3.1.3.4 is independently developed without access to the Confidential Information.

3.2 Privacy:

Magnetism maintains a privacy policy that sets out the parties’ obligations in respect of personal information. You should read that policy at https://www.magnetismsolutions.com/privacy-policy and You will be deemed to have accepted that policy when You accept these Terms.

4. INTELLECTUAL PROPERTY

4.1 General:

Title to, and all Intellectual Property Rights in the Service, the Website and any documentation relating to the Service remain the property of Magnetism (or its licensors).

4.2 Ownership of Data:

Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data via the Service is contingent on full payment of the Service Fee when due.

5. WARRANTIES AND ACKNOWLEDGEMENTS

5.1 Authority:

You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.

5.2 Acknowledgement:

You acknowledge that:

5.2.1 You are authorised to use the Service and to access the information and Data that You input into the Service, including any information or Data input into the Service by any person you have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Service (whether that information and Data is Your own or that of anyone else).

5.2.2 Magnetism has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Service on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:

5.2.2.1 You are responsible for ensuring that You have the right to do so;

5.2.2.2 You are responsible for authorising any person who is given access to information or Data, and you agree that Magnetism has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and

5.2.2.3 You will indemnify Magnetism against any claims or loss relating to:

5.2.2.3.1 Magnetism's refusal to provide any person access to Your information or Data in accordance with these Terms,

5.2.2.3.2 Magnetism’s making available information or Data to any person with Your authorisation.

5.2.3 The provision of, access to, and use of, the Service is on an "as is " basis and at Your own risk.

5.2.4 Magnetism does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Service. Magnetism is not in any way responsible for any such interference or prevention of Your access or use of the Service.

5.2.5 It is Your sole responsibility to determine that the Service meets the needs of Your business and are suitable for the purposes for which it is used.

5.3 No warranties:

Magnetism gives no warranty about the Service. Without limiting the foregoing, Magnetism does not warrant that the Service will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.

5.4 Consumer guarantees:

You warrant and represent that You are acquiring the right to access and use the Service for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Service or these Terms.

6. LIMITATION OF LIABILITY

6.1 To the maximum extent permitted by law, Magnetism excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.

6.2 If You suffer loss or damage as a result of Magnetism's negligence or failure to comply with these Terms, any claim by You against Magnetism arising from Magnetism's negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Access Fees paid by You in the previous 12 months.

6.3 If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 7.

7. TERMINATION

7.1 Trial policy

For some Services, when You first sign up for access to the Service You can evaluate the Service for a defined trial period with no obligation to continue to use the Service. If You choose to continue using the Service thereafter, You will be billed from the day You first agreed to pay for the Service. If You choose not to continue using the Service the Service will be de-activated immediately after the trial period.

7.2 Prepaid Subscriptions

Magnetism will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription.

7.3 No-fault termination:

These Terms will continue for the period covered by the Access Fee paid or payable under clause 2.1. At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Access Fee when due, unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period. If You terminate these Terms You shall be liable to pay all relevant Access Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms.

7.4 Breach:

If You:

7.4.1 breach any of these Terms (including, without limitation, by non-payment of any Access Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;

7.4.2 breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 2 or any payment of Access Fees that are more than 14 days overdue); or

7.4.3 You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,

Magnetism may take any or all of the following actions, at its sole discretion:

7.4.4 Terminate this Agreement and Your use of the Service;

7.4.5 Suspend for any definite or indefinite period of time, Your use of the Service;

For the avoidance of doubt, if payment of any invoice for Access Fees due in relation to any of Your Billing Contacts or any of Your Organisations (as defined in clause 2) is not made in full by the relevant due date, Magnetism may suspend or terminate Your use of the Service.

7.5 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. On termination of this Agreement You will:

7.5.1 remain liable for any accrued charges and amounts which become due for payment before or after termination; and

7.5.2 immediately cease to use the Service.

7.6 Expiry or termination:

Clauses 2.1, 2.5, 3, 4, 5, 6, 7 and 9 survive the expiry or termination of these Terms.

8. HELPDESK

8.1 Technical Problems:

In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Magnetism. If You still need technical help, please check the support provided online by Magnetism on the Website or failing that email us at help@magnetismsolutions.com.

8.2 Service availability:

Whilst Magnetism intends that the Service should be available 24 hours a day, seven days a week, it is possible that on occasions the Service may be unavailable.

9. GENERAL

9.1 Entire agreement:

These Terms, together with the Magnetism Privacy Policy and the terms of any other notices or instructions given to You under these Terms of Use, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Magnetism relating to the Service and the other matters dealt with in these Terms.

9.2 Waiver:

If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.

9.3 Delays:

Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.

9.4 No Assignment:

You may not assign or transfer any rights to any other person without Magnetism's prior written consent.

9.5 Governing law and jurisdiction:

New Zealand law governs this Agreement and You submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement. Severability:

If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.

9.6 Notices:

Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Magnetism must be sent to support@magnetismsolutions.com or to any other email address notified by email to You by Magnetism. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.

9.7 Rights of Third Parties:

A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.

9.8 Marketing Consent:

Unless expressly prohibited in writing by the Client, Magnetism shall have the right to use the Client's name, logo, and other brand identifiers in its marketing materials, including but not limited to websites, social media, presentations, and promotional literature. This right extends to referencing the Client as a customer of Magnetism and showcasing work performed for the Client. The Client may revoke this permission at any time by submitting a written request to Magnetism, upon which Magnetism will cease using the Client's brand identifiers in future marketing efforts within a reasonable timeframe.