INTRODUCTION / APPLICATION
1. Welcome to Govn365, an online business governance self-assessment and continuous improvement service. This Agreement is intended to explain Govn365’s obligations as a service provider and the obligations of each Subscriber.
2. This Agreement sets out the generic terms and conditions that apply to each Subscriber’s use of the Platform. From time to time, Govn365 and a Subscriber may agree on more specific, additional and/or altered Services, in which case Govn365 and the relevant Subscriber may enter into a separate agreement (otherwise referred to as the “Specific Agreement”). If there is any conflict or inconsistency between this Agreement and the Specific Agreement (as applicable to the relevant Subscriber), the Specific Agreement shall prevail to the extent of such conflict or inconsistency.
a. In this Agreement:
"Access Fee" means the monthly or annual fee (excluding any taxes) payable by each Subscriber in accordance with the fee schedule set out on the Website and/or Platform (which Govn365 may change from time to time on notice to the Subscriber);
"Agreement" means the agreement between Govn365 and each Subscriber for the provision, use and/or access of the Platform (including the Service), incorporating these terms and conditions and any amendments to the Agreement from time to time and where applicable, includes any Specific Agreement;
"Confidential Information" includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Platform (and the Service) but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party;
"Intellectual Property Right" means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Invited User" means any person or entity, other than the Subscriber, that uses the Platform (including the Services) with the authorisation of the Subscriber from time to time;
“Platform” means the software platform that is owned and operated by Govn365, and that is made available to the Subscriber as a service via the Website (and other alternative means provided by Govn365) under the Agreement, which for the avoidance of doubt includes the provision of the Service;
" Govn365" means Govn365 Limited, a private company registered in New Zealand (NZBN: 9429050184408).
"Service" means the online business governance self-assessment and continuous improvement service made available (as may be changed or updated from time to time by Govn365) via the Platform;
“Specific Agreement” has the meaning given to it in clause 2 of the Introduction to this Agreement;
"Subscriber" means the person who registers to use and access the Platform (including the Service), and, where the context permits, includes any entity on whose behalf that person registers to use the Service and an Invited User;
“Subscriber Materials" all works and materials and data:
a. Uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Subscriber; and
b. Otherwise provided by the Subscriber to Govn365 in connection with the Agreement;
"Website" means the Internet site at the domain www.govn365.com or any other site operated by Govn365.
2. AGREEMENT/ ACCESS TO PLATFORM
a. The Agreement shall apply to each Subscriber’s use and access of the Platform (including the Service) from the time that Govn365 provides the relevant Subscriber with access to the Service via the Platform. By registering to access and use the Platform the Subscriber represents, warrants and acknowledges that it has read and understood this Agreement and has the authority to act on behalf of any person for whom the Subscriber will access and use the Platform. The Subscriber is deemed to have agreed to this Agreement on behalf of any entity or person for whom it accesses and uses the Platform (in accordance with this Agreement).
b. Subject to the Subscriber registering to access and use the Platform (in accordance with Govn365’s requirements), Govn365 will enable the Subscriber access to the Platform.
3. PLATFORM / USE OF SERVICE
a. Subject to the limitations set out at clause 3 b. and the prohibitions set out in clause 3.c below Govn365 shall grant each Subscriber a non-exclusive, non-transferable licence to use the Service via the Platform in accordance with the particular user roles available to the Subscriber and according to the relevant Subscriber’s subscription type.
b. The licence granted by Govn365 to the Subscriber under clause 3 a. above, is subject to the following limitations:
i. Unless expressly approved by Govn365, the Platform may only be used by the employees, agents, sub-contractors and officers of the Subscriber;
ii. The Subscriber may permit third parties to access the Platform as Invited Users, provided that:
1. The Subscriber determines who is an Invited User and what level of user role access to the relevant organisation and Service that Invited User has; and
2. The Subscriber is responsible for all Invited Users’ use of the Platform; and
3. The Subscriber controls each Invited User’s level of access to the relevant organisation and Platform at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be; and
4. If there is any dispute between a Subscriber and an Invited User regarding access to any organisation or the Platform, the Subscriber shall decide what access or level of access to the relevant Subscriber Materials and/or Platform that Invited User shall have, if any.
c. Except to the extent expressly permitted in the Agreement, the licence granted by Govn365 to the Subscriber under this clause 3 is subject to the following prohibitions under which the Subscriber must not:
i. Sub-license, assign or otherwise its right to access and use the Platform or allow any unauthorised person to access or use the Platform;
ii. Frame or otherwise re-publish or re-distribute the Platform;
iii. Alter or adapt or edit the Platform;
iv. Attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Platform except as is strictly necessary to use either of them for normal operation;
v. Access the object code or source code of the Platform at any time;
vi. Use the Platform in any way that causes or may cause damage to the Platform or impairment of the availability or accessibility of the Platform whatsoever;
vii. Use the Platform in any way that is unlawful, illegal, fraudulent, harmful or otherwise in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;
viii. Attempt to undermine the security or integrity of Govn365’s computing system or networks or, where the Platform or Service is hosted by a third party, that third party’s computing systems and networks;
ix. Otherwise use or access the Platform in breach of the Subscriber’s other obligations under this Agreement.
4. OBLIGATIONS AND OTHER MATTERS
a. Payment obligations:
i. Monthly Billing: Where applicable, Govn365 will issue each Subscriber an invoice for the ‘monthly’ Access Fee immediately upon a Subscriber subscribing to a Govn365 account to access the Platform. Subsequently, Govn365 will issue the Subscriber, on a monthly basis, in an amount equal to the ‘monthly’ Access Fee for the following one-month period of use. Govn365 will continue invoicing the Subscriber on a monthly basis until this Agreement is terminated in accordance with clause 9.
ii. Annual Billing: Where applicable, Govn365 will issue each Subscriber an invoice for the ‘annual’ Access Fee immediately upon a Subscriber subscribing to a Govn365 account to access the Platform. Subsequently, Govn365 will issue the Subscriber, on an annual basis (from the anniversary of the initial registration), in an amount equal to the ‘annual’ Access Fee for the following 12 months of use. Govn365 will continue invoicing the Subscriber on an annual basis until this Agreement is terminated in accordance with clause 9.
iii. All Govn365 invoices will be sent to the Subscriber or to the Subscriber’s specified billing contact, by email. The Subscriber must pay or arrange payment of all amounts specified in any invoice by the due date for payment, within 10 days of the invoice date, unless otherwise agreed by Govn365.
iv. If the Subscriber does not pay any amount properly due to Govn365 under or in connection with the Agreement Govn365 may:
1. Charge the Subscriber interest on the overdue amount at the rate of 2% per month, which interest shall accrue daily and be compounded monthly;
2. Suspend access to the Platform and the provision of the Services until such overdue amount is repaid in full.
b. General obligations:
i. The Subscriber must only use the Platform (including the Website) for its own lawful internal business purposes, in accordance with this Agreement and any notice sent by Govn365 or condition posted on the Platform or Website.
ii. The Subscriber may use the Platform on behalf of others or in order to provide services to others but if the Subscriber does so it must ensure that the Subscriber is authorised to do so and that all persons for whom or to whom services are provided comply with and accept the terms of this Agreement.
c. Access/Accounts: The Subscriber must ensure that all usernames and passwords required to access the Platform are kept secure and confidential and must immediately notify Govn365 of any unauthorised use of the Subscriber’s passwords, or any other breach of security and Govn365. Without limitation to the aforesaid, the Subscriber must take all other actions that Govn365 reasonably deems necessary to maintain or enhance the security of Govn365's computing systems and networks and its access to the Platform.
d. Usage Limitations: Use of the Platform may be subject to limitations, including but not limited to data storage volumes and the number of calls a Subscriber is permitted to make against Govn365’s application programming interface. Any such limitations will be advised.
e. Communication Conditions: Where a Subscriber uses any communication tools available through the Platform (such as any forum, chat room or message centre), the Subscriber shall only use such communication tools for lawful and legitimate purposes. The Subscriber must not use any such communication tool for posting or disseminating any material unrelated to the use of the Platform, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person's computing devices or software, content that may be offensive to any other users of the Platform, or material in violation of any law (including material that is protected by copyright or trade secrets which the Subscriber does not have the right to use). When a Subscriber makes any communication on the Platform, it represents that it is permitted to make such communication. Govn365 is under no obligation to ensure that the communications on the Platform are legitimate or that they are related only to the use of the Platform. As with any other web-based forum, each Subscriber must exercise caution when using the communication tools available on the Platform. However, Govn365 does reserve the right to remove any communication at any time at its sole discretion.
5. CONFIDENTIALITY / PRIVACY
a. Confidentiality: Unless the relevant party has the prior written consent of the other or unless required to do so by law:
i. Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Agreement. 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 this Agreement.
ii. Each party's obligations under this clause will survive termination of this Agreement.
iii. Subclauses i. and ii. above shall not apply to any information which: (1) is or becomes public knowledge other than by a breach of this clause; or (2) is received from a third party who lawfully acquired it; or (3) is already in the possession of the receiving party prior to disclosure from the disclosing party; or (4) that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body.
6. INTELLECTUAL PROPERTY / DATA
a. Govn365: All Intellectual Property Rights in the Platform (including the Services and Website) and any documentation relating to the Platform (including Services and Website) (including all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel, and the underlying systems) is the exclusive property of Govn365 (and its licensors).
b. Subscriber Materials:
i. The Subscriber grants to Govn365 a non-exclusive, royalty free licence to store, copy and otherwise use the Subscriber Materials on the Platform for the purposes of operating the Platform (including the provision of the Services), fulfilling its other obligations under this Agreement, and exercising its rights under this Agreement.
ii. All Intellectual Property Rights in the Subscriber Materials is the exclusive property of the Subscriber.
c. Subscriber Warranty: The Subscriber warrants and represents that the Subscriber Materials and their use by Govn365 under this Agreement will not breach any laws, statutes, regulations or infringe any person’s Intellectual Property Rights (or other legal rights), in each case in the applicable jurisdiction of the Subscriber and under any applicable law and in each case jurisdiction of Govn365 in New Zealand under New Zealand law.
d. Backup of Data: Govn365 adheres to reasonable practice policies and procedures to prevent data loss, including a daily system data back-up regime but does not make any guarantees that there will be no loss of Subscriber Materials. For the avoidance of doubt, Govn365 will only make back-ups of Subscriber Materials stored on the Platform. In the event of the loss of, or corruption of, Subscriber Materials stored on the Platform being notified by the Subscriber to Govn365, Govn365’s liability in relation to such loss shall be limited to Govn365 using reasonable endeavours to promptly restore the Subscriber Materials from the most recent available back-up copy available.
e. Third-party Applications and Subscriber Materials: If a Subscriber enables third-party applications for use in conjunction with the Platform, the Subscriber acknowledges that Govn365 may allow the providers of those third-party applications to access Subscriber Materials as required for the interoperation of such third-party applications with the Platform (including Services). Govn365 shall not be responsible for any disclosure, modification or deletion of Subscriber Materials resulting from any such access by third-party application providers.
7. WARRANTIES AND ACKNOWLEDGEMENTS
a. Subscriber Warranties: The Subscriber warrants and represents that:
i. It has the legal right and authority to enter into and perform its obligations under this Agreement;
ii. Where it has registered to use the Platform on behalf of another person, it has the authority to agree to this Agreement on behalf of that person and agrees that by registering to use the Platform, it binds the person on whose behalf the Subscriber acts to the performance of any and all obligations that the Subscriber becomes subject to by virtue of this Agreement;
iii. It is authorised to access and use the Platform and to access and use the information and Subscriber Materials it inputs into the Platform (whether such information/Subscriber Materials is that of the Subscriber or that of anyone else);
b. Govn365 Warranties: Govn365 warrants to the Subscriber:
i. That it has the legal right and authority to enter into and perform its obligations under this Agreement;
ii. That it will perform its obligations under this Agreement with reasonable care and skill;
iii. That the Platform (excluding the Subscriber Materials) will not infringe any person’s Intellectual Property Rights;
c. Subscriber Acknowledgments: The Subscriber acknowledges and agrees to the following:
i. Govn365 has no responsibility to any person other than the Subscriber and nothing in this Agreement confers, or purports to confer, a benefit on any person other than the Subscriber.
ii. If the Subscriber uses and/or accesses the Platform (including the Services) on behalf of or for the benefit of anyone other than the Subscriber (whether a body corporate or otherwise) the Subscriber agrees that:
1. It is responsible for ensuring that the Subscriber has the right to do so;
2. It is responsible for authorising any person who is given access to information or Subscriber Materials and that Govn365 has no obligation to provide any person access to such information or Subscriber Materials without the Subscriber’s authorisation and may refer any requests for information to the Subscriber to address; and
3. It will indemnify Govn365 against any claims or loss relating to: (a) Govn365's refusal to provide any person access to Subscriber Materials in accordance with this Agreement; or (b) Govn365’s making available information or Subscriber Materials to any person with the Subscriber’s authorisation.
ii. Complex software is never wholly free from interruptions, defects, errors and bugs, and Govn365 gives no warranty or representation that the Platform will be wholly free from such interruptions, defects, errors and bugs;
iii. The operation and availability of the systems used for accessing the Platform, 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 Platform. Govn365 is not in any way responsible for any such interference or prevention of access or use of the Platform;
iv. As Govn365 is based on self-assessment, Govn365 is not the Subscriber’s business governance consultant or professional risk advisor (nor does Govn365 represent or hold itself out to be) and use of the Platform (including the Services) does not constitute the receipt of professional business governance advice. If the Subscriber has any specific business governance or risk management questions, it is recommended the Subscriber contacts a certified professional;
v. It is the sole responsibility of the Subscriber to determine that the Platform (including the Services) meet the needs of its business and are suitable for the purposes for which they are used;
vi. The Subscriber remains solely responsible for complying with all applicable business governance compliance, risk management and other laws;
vii. It is the responsibility of the Subscriber to check that storage of and access to Subscriber Materials via the Platform will comply with laws applicable to the Subscriber.
d. No implied warranties: While care has been taken in collecting and presenting information and advice in accordance with relevant legislation, governance research and relevant international standards (such as ISO31000:2018 and ISO37000:2021), any advice provided by Govn365 is provided without warranty or representation of any kind, express or implied. In no event will Govn365, its related partnerships, corporations or trusts, or the partners, agents or employees thereof be liable to the Subscriber or anyone else for any decision made or action taken in reliance on advice provided by Govn365 or for any consequential, special or similar damages, even if advised of the possibility of such damages. Without limitation to the aforesaid, all of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement and to the maximum extent permitted by law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement.
e. Consumer guarantees: The Subscriber warrants and represents that it is acquiring the right to access and use the Platform 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 (including the Consumer Guarantees Act 1993) does not apply to the supply and access of the Platform (including the Services and Website).
8. INDEMNITY / LIMITATION OF LIABILITY
a. Indemnity: Without limitation to Govn365’s other rights under this Agreement, the Subscriber will indemnify and will keep indemnified Govn365 against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by Govn365 arising as a result of any breach by the Subscriber of clause 6 c. (Subscriber Warranty) and clause 3 c. (use of Platform) and 4.c (Access).
b. Exclusion of Liability: In no event will Govn365 be liable (whether in contract, tort (including negligence), or otherwise) to the Subscriber for:
i. Loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of data or wasted management or staff time; or
ii. Loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature,
arising directly or indirectly out of this Agreement, even if Govn365 had been advised of the possibility of such damages, and even if such loss, damage, cost or expense was reasonably foreseeable by Govn365.
c. Limitation of liability: The maximum liability of Govn365 to the Subscriber arising out of any and all claims under this Agreement, or relating to the Platform (including the Services and Website and Platform) will not in any circumstances exceed the Access Fees paid by the Subscriber in the previous 12 months.
a. Prepaid Subscriptions The Subscriber acknowledges and agrees that, upon any termination of this Agreement, unless agreed by Govn365 (at its discretion), Govn365 will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription.
b. Term: This Agreement will continue for the period covered by the applicable Access Fee paid or payable by the Subscriber pursuant to this Agreement. At the end of each billing period this Agreement will automatically rollover and continue for another period of the same duration as that period, provided the Subscriber continues to pay the applicable prescribed Access Fee when due.
c. No-fault Termination: Either party may terminate this Agreement by giving notice to the other party at least 30 days before the end of the relevant payment period.
d. Termination for Breach: If the Subscriber:
i. Breaches any terms of this Agreement (including, without limitation, by non-payment of any Access Fees) and does not remedy the breach within 14 days after receiving notice of the breach (if the breach is capable of being remedied); or
ii. Breaches any terms of this Agreement and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 3 or any payment of Access Fees that are more than 30 days overdue); or
iii. Becomes insolvent, or the Subscriber’s business goes into liquidation or has a receiver or manager appointed of any of its assets or if the Subscriber makes any arrangement with its creditors, or becomes subject to any similar insolvency event in any jurisdiction,
Govn365 may take any or all of the following actions, at its sole discretion:
iv. Terminate this Agreement and the Subscriber’s access and use of the Platform (including Services and the Website);
v. Suspend for any definite or indefinite period of time, the Subscriber’s access and use of the Platform (including Services and the Website);
vi. Suspend or terminate access to all or any Subscriber Materials.
e. Accrued Rights: Termination of this Agreement 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 the Subscriber will remain liable for any accrued charges and amounts which become due for payment before or after termination and immediately cease to use and access the Platform (including the Services and the Website).
f. Expiry or termination: All clauses intended to survive the expiry or termination of this Agreement shall survive the expiry or termination of this Agreement.
10. HELP DESK
a. Technical Problems: In the case of technical problems, the Subscriber must make all reasonable efforts to investigate and diagnose problems before contacting Govn365. If the Subscriber still needs technical help, please check the support provided online by Govn365 on the Platform or Website, failing that email Govn365 at email@example.com.
b. Service availability: Whilst Govn365 intends that the Platform should be available 24 hours a day, seven days a week, it is possible that on occasions the Platform or Website may be unavailable to permit maintenance or other development activity to take place. If for any reason Govn365 has to interrupt the Services for longer periods than Govn365 would normally expect, Govn365 will use reasonable endeavours to publish in advance details of such activity on the Platform or Website.
c. Customer Complaints: Ensuring our customers are satisfied with Govn365’s products and service is of paramount importance to us and is central to Govn365's quality management policy. Govn365 also actively seeks feedback, both positive and negative, to assist us with continually improving our products, service and value proposition to our customer community. If you have any concerns, issues or complaints, these can be submitted to Govn365 via our customer support desk. Email firstname.lastname@example.org. Govn365 will respond to your enquiry within 24 hours and ensure it is treated fairly, ethically, and in good faith through to resolution.
b. Changes: Govn365’s Platform will evolve over time based on user feedback. This Agreement is not intended to answer every question or address every issue raised by the use of the Govn365 Platform. Govn365 may change the terms of this Agreement at any time by updating them on the Website and/or Platform. Govn365 will notify the Subscriber that the Agreement has been updated by email or notification on the Platform and/or Website. Unless stated otherwise, any change takes effect immediately. The Subscriber is responsible for ensuring it is familiar with the latest Agreement. By continuing to access and use the Platform, the Subscriber is deemed to have agreed to be bound by the updated Agreement. This Agreement was last updated on 28 March 2022.
c. Waiver: If either party waives any breach of this Agreement, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
d. Delays: Neither party will be liable for any delay or failure in performance of its obligations under this Agreement if the delay or failure is due to any cause beyond its reasonable control. This clause does not apply to any obligation to pay money.
e. No Assignment: The Subscriber may not assign or transfer its subscription to the Platform and/or its obligations under this Agreement to any other person without Govn365's prior written consent.
f. Governing law and jurisdiction: This Agreement and the Subscriber’s access and use of the Platform will be governed by and construed in accordance with the laws of New Zealand and the Subscriber submits to the non-exclusive jurisdiction of the New Zealand Courts.
g. Severability: If any part or provision of this Agreement 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.
h. Notices: Any notice given under this Agreement by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Govn365 must be sent to email@example.com or to any other email address notified by email to the Subscriber by Govn365. Notices to the Subscriber will be sent to the email address which the Subscriber provided when setting up its access to the Platform.
i. Rights of Third Parties: A person who is not a party to this Agreement other than Govn365, its related partnerships, corporations or trusts, or the partners, agents or employees thereof, has no right to benefit under or to enforce any term of this Agreement.