Terms of Use
Last updated May 2024
Welcome to Dacreed – we’re excited to onboard you with us. However, before using our software, please read these terms carefully. If you can’t agree to our terms, then you can’t use our software. If you still have questions or comments after you have read these terms, please contact us any time here and we’d be more than happy to help.
Definitions
The following terms used have the following meanings:
“Customer IP” means any content, materials or information owned by you and submitted to us by you while using the Services and includes any intangible property that is protected by Intellectual Property Rights in your favour.
“Data” means all data (including metadata), information, videos, audio files, text, photographs, written posts and comments, software, scripts, graphics, interactive features, works and materials uploaded to, transmitted through, or stored on, our Services by you or an Invited User, transmitted by our Services at your or an Invited User’s instigation.
“Insolvent” means you have a liquidator, receiver or manager appointed over any of your assets or business, you make any arrangement with your creditors or you become subject to any similar insolvency event in any jurisdiction.
“Intellectual Property Rights” means any patent, trademark, 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.
“Invited User” means any person who you invite to use our Services.
“Pricing Plan” has the meaning given to that term in clause 6 of these terms.
“Privacy Policy” means Dacreed’s privacy policy, which you can read here.
“Services” means the software or services hosted on https://www.dacreed.com and related domains and any other services that we provide now or in the future but excluding any Third Party Services purchased directly from the relevant Third Party Service Provider.
“Subscription” means a subscription to use the Services and “Subscriber” means the person who accepts these terms and is responsible for paying any fees payable in relation to the Subscription.
“Dacreed” or “we”, “us”, or “our” means Dacreed Holdings Limited Partnership, a New Zealand-based entity which proudly owns and operates the Dacreed software.
“Term” means the period of your Subscription as agreed in your Pricing Plan.
“Third Party Services” has the meaning given to that term in clause 26 of these terms.
“You” or “your” means you and any entity, education provider, institution or association that you’re authorised to represent.
Using Dacreed
- Subscription
When you create a Subscription to use our Services, you become a Subscriber and you are responsible for managing the Subscription including controlling Invited Users’ access and resolving any disputes with any Invited Users over access to the Subscription. You are also responsible for your Invited Users’ activity while using the Services.
- Using the Services
We grant Invited Users and the Subscriber the right to use our Services (based on your subscription type, user role and the level of access you have been granted) until the Subscription is terminated or your access is revoked.
- Your responsibilities
You represent and warrant to us that you have provided true, accurate and complete information to us (and that you will keep such information up to date at all times). You are also responsible for protecting your username and password from getting stolen or misused.
- What we own
We reserve and retain all Intellectual Property Rights in our Services (unless otherwise stated) excluding any Customer IP. Our Services may not be copied, adapted, published, distributed, disseminated or otherwise commercially dealt with in any manner whatsoever. As between you and us, you acknowledge and agree that we own all new Intellectual Property Rights in any feedback you provide to us and any adaptions of, modifications or enhancements to, the Services (whether recommended or created by you or any other person) (Created IP). You will not dispute such ownership. To the extent the Intellectual Property Rights in the Created IP do not vest in us automatically, you assign to us (or at our request, our licensors or Third Party Service Providers) without reservation the Intellectual Property Rights in any Created IP and will do everything necessary to enable us to fully protect, realise, use and enforce the Created IP.
- Rules
By agreeing to use our Services, you agree that you will:
- access and use our Services on an “as is” basis and at your own risk;
- remain solely responsible for any act or omission of any Invited User;
- remain solely responsible for complying with any usage requirements on third-party websites that we provide links to;
- use our Services in a manner consistent with our Privacy Policy;
- remain responsible for ensuring that storage and access to any of your information or Data complies with any laws or regulations;
- never breach these terms;
- never infringe our Intellectual Property Rights or infringe on any other person’s Intellectual Property Rights (including any Intellectual Property Rights in relation to the Third Party Services);
- never undermine the security of the software (including introducing or uploading any malicious code or virus) or systems or use our Services in a way that might impair functionality or interfere with other people’s use;
- never access any part of our Services without permission; and
- never share any offensive or illegal material or abuse or disrespect any other person including our staff.
- Pricing plan
Your use of the Services requires you to pay a subscription fee and you will be subject to the fees, renewal periods, cancellation terms and any other special terms made available to you when registering to use our Services (Pricing Plan). The terms of the Pricing Plan form part of these terms and the Pricing Plan is subject to change at any time. Any changes to a Pricing Plan won’t apply retrospectively but will apply from the commencement of your subsequent Term.
- Out of scope development or support
Any bespoke software development, implementation, consulting or support services requested by you will be separately costed and agreed prior to work commencing. If you have any specific product or feature requests that may benefit our Services generally, we will consider adding these to our roadmap.
- Free trial
We may offer you a free trial. If you choose to continue using our Services after the free trial, you will be billed based on the Pricing Plan that you agree to.
- Payments
In order to continue accessing our Services, you must make payment in accordance with your Pricing Plan. If we don’t receive payments in accordance with your Pricing Plan, we may suspend your Subscription until we receive payment or cancel your Subscription, and we may charge interest of 12% per annum on any outstanding balance that you owe us.
- Your Data
When you submit or upload any Data into our Services, you maintain ownership of, and Intellectual Property Rights in, that Data but you grant us and, to the extent required by any Third Party Service Provider, the relevant Third Party Service Provider, a licence to use, copy, transmit, store, analyse and back up all Data you submit to us through our Services (including personal information) to: facilitate your use of the Services; enable the improvement, development and protection of the Services; enable the creation of new Services; communicate with you about your Subscription; and send you relevant information based on your marketing preferences and your use of the Services.
- Authority to submit personal information
If you submit any personal information about another person (for example, you submit information about an employee, contractor, student or other third party who has given you permission to do so) you represent and warrant that you have the right, authority and permission to transfer such personal information to us or the relevant Third Party Service Provider, for the purpose of receiving the Services. You acknowledge and agree that, to the extent that data processed in our Services contains personal information, in holding and processing that information through the Services, we are acting as your agent for the purposes of the Privacy Act 2020.
- Your privacy rights
We respect your privacy. In addition to these terms, our Privacy Policy sets out in detail how we process your personal information. By accepting these terms, you also accept the terms of our Privacy Policy.
- Your responsibility to keep backup copies of your Data
You are responsible for keeping backup copies of your Data (including Customer IP). We will use all reasonable endeavours to prevent the loss of your Data but we can’t guarantee that the loss of your Data will not occur. We expressly exclude liability for any loss of your Data regardless of how the loss has been caused, however, to the extent possible, we will take all reasonable steps to assist you in recovering your Data.
- Anonymised Data
We may create anonymised statistical data from your Data and usage of our Services. Once anonymised, we may use it for our own purposes, such as to improve our Services, to develop new services or offerings, to identify trends and for other uses we communicate to you.
- Data breach notification
Where there has been unauthorised access to personal information relating to your Subscription, we will let you know and give you information about what has happened.
- Confidentiality
You may share confidential information with us and you may become aware of confidential information about us. You and we both agree to protect and keep each other’s confidential information from being accessed by unauthorised individuals.
- Availability
We strive to ensure that our Services are available 24 hours a day. We will endeavour to notify you if we need to perform any maintenance on our Services which may result in a period of downtime, although we can’t guarantee that we will notify you in advance.
- No compensation
We are not legally responsible or liable in any way for any downtime, access issues or loss of your Data (irrespective of the cause).
- Modifications
We often release new software updates and enhancements to our Services. In some cases we may discontinue features and where this occurs we will endeavour to notify you in advance (but can’t guarantee that we will).
- Term
Your Subscription continues for the Term agreed in your Pricing Plan. At the end of the initial Term, your Subscription automatically renews for consecutive one-month terms unless you give us written notice at least 30 days prior to the expiry of the then current term that your Subscription will not renew. You will still need to pay all relevant subscription fees up to and including the date of termination.
- Termination by us
We may terminate your Subscription at any time by providing three months’ written notice in advance.
- Accelerated termination by us
We may terminate or suspend your Subscription with immediate effect if you breach any of these terms, fail to pay subscription fees or you become Insolvent.
- No refunds
We are not obliged to pay you a refund if your Subscription is terminated in accordance with these terms.
- Retention of Data
We will retain your Data in accordance with our Privacy Policy.
- Sharing information with third parties through the Services
If you submit, or grant access to, any personal information about another person (for example, you submit information about an employee, contractor, student or other third party who has given you permission to do so) to a third party, you represent and warrant that you have the right, authority and permission to transfer such personal information to that third party for the purpose of receiving the Services.
- Third party services
Along with the use of our Services, you may have access to material, data and services from other third parties (Third Party Service Providers) through our Services (Third Party Services). If you purchase Third Party Services directly from us, these terms are applicable to the use of those Third Party Services and you cannot bring any claim against any Third Party Service Provider in respect of your access and use of those Third Party Services. The term “Services” (including any references to “our Services”) under these terms includes any Third Party Services purchased directly from us. You acknowledge and agree that the relevant Third Party Service Provider (or its licensors) retain all Intellectual Property Rights in the relevant Third Party Services.
If you purchase Third Party Services directly from a third party through our Services:
- you will be subject to that third party’s terms and conditions and privacy notices disclosed to you at the time of purchase of the Third Party Services;
- that third party shall be solely responsible for the provision of those Third Party Services; and
- we do not accept any liability or responsibility in respect of the Third Party Services.
- Indemnity
You agree that if any party brings a claim or proceedings against us or any Third Party Service Provider related to any Customer IP or the way in which you use the Services or any third-party product, you will indemnify and hold us and the relevant Third Party Service Provider harmless from and against all damages, losses and expenses of any kind (including reasonable legal fees and costs) arising out of any such claim (except where we are at fault).
- Disclaimer of warranties
We and any Third Party Service Providers give no warranty as to the Services and we do not warrant that the Services will satisfy any particular requirements nor that they will be suitable for any particular purpose. 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.
- Limitation of liability
Other than liability that we can’t exclude or limit by law, our total aggregate liability to you in any circumstance is limited to:
- in respect of our Services, the total amount you paid us for your Subscription in the last 12 months immediately preceding the date on which the claim giving rise to the liability arose; and
- in respect of Third Party Services purchased directly from us, the total amount you paid us for those Third Party Services in the last 12 months immediately preceding the date on which the claim giving rise to the liability arose.
- Exclusion of liability
We have no liability whatsoever arising from your use of:
- Third Party Services purchased directly from third parties through our Services; and
- the Services in respect of any loss of revenue, loss of goodwill, loss of profit, loss of savings, loss of capital, damage to reputation or loss in connection with any other contract, or indirect, consequential, incidental, punitive, exemplary or special loss, damage or expense.
- Entire agreement
These terms supersede and extinguish all prior agreements, representations, negotiations and understandings between us and constitute the entire agreement between us.
- Changes
We may change these terms, however changes will not apply retrospectively and, if we make any material changes, we will make every effort to inform you. Generally, we endeavour to provide you with 10 days’ notice of material changes before they become effective, unless we need to make immediate changes. When we notify you, we’ll do it by email or by posting a visible notice through our services. If a change isn’t material, we may not notify you. If you find a modified term unacceptable, you may terminate your subscription by giving the standard advance notice to us.
- Arbitration
You and we agree that we will make good faith efforts to reach a resolution in the event of any dispute. However, if a resolution to any dispute is not reached within 10 working days (as that term is defined in the Companies Act 1993) of either of us giving notice of such dispute to the other, you and we agree that all disputes arising under these terms will be finally settled by arbitration at Auckland (NZ) with a single arbitrator under the rules of the New Zealand Arbitration Act 1996, with such decision to be final and binding on the parties. Nothing in this clause restricts us from commencing court proceedings against you at any time.
- Third Party Rights
These terms (including the benefits of indemnity under clause 27) are enforceable by Third Party Service Providers under Part 2, Subpart 1 of the Contract and Commercial Law Act 2017 (CCLA) and any equivalent law. Otherwise, a person who is not a party to these terms has no rights to enforce any term of the Agreement.
- No professional advice
We are not a professional services firm and you must not construe any information that we or any Third Party Service Provider gives you as professional advice. Any reliance you place on such information is at your own risk.
- Relationship between the parties
Nothing in these terms is to be construed as constituting a partnership, joint venture, employment or agency relationship between us, or between you and any other Subscriber or Invited User.
- Notices
Any notice you send to us must be sent to [email protected]. Any notices we send to you will be sent to the email address you’ve provided us through your subscription.
- Assignment
You may not assign or transfer any rights, benefits or obligations under these terms to any other person without our prior written consent. We may, at any time, assign or transfer any of our rights, benefits or obligations under these terms without needing to obtain your consent to any such assignment or transfer.
- Governing law
These terms are governed by the laws of New Zealand and each party submits to the exclusive jurisdiction of the New Zealand courts.
Pricing
Data
Maintenance & modifications
Termination
Third parties
Liability and indemnity
General
