Terms of Use - Web

By viewing and using this website, you agree to the following terms and conditions of use and the Privacy Statement.


You must stop viewing and using this Site if you do not agree to be bound by these terms and conditions. These terms and conditions may be altered at any time and shall be effective as to the time and date they are posted on the Site.

Copyright:
The contents of the Site are the copyright of Bluelab Corporation Limited. You are not permitted to distribute or copy any part of the Site for any commercial purpose without the written consent of Bluelab Corporation Limited. You may download to your hard drive, or print, extracts from the Site for your own personal or internal business use only.

Links:
The Site may contain links to other websites. Bluelab Corporation Limited is not in any way responsible for the contents of any linked sites or liable for any direct or indirect damage, costs, injury or losses of any kind arising in any way from use of such material.

Disclaimer:
Certain information and material is made available to you on the Site as a service. Bluelab Corporation Limited does not provide financial, investment, tax, or legal advice of any kind. Use of information on the Site is at your own risk and Bluelab Corporation Limited is not responsible for any adverse consequences arising out of such use.

Limitation of Liability:
Under no circumstances shall Bluelab Corporation Limited be liable for any claims, losses, costs and damages of any nature whatsoever (including any consequential loss) that result from the use of, or the inability to use, information contained on the Site.

New Zealand Law:
Any disputes arising out of use of the Site are governed by and construed in accordance with the laws of New Zealand. The customer agrees to submit to the exclusive jurisdiction of the courts of New Zealand.   

Terms of Use - Software & Services

1.    Application of Terms

1.1  These Terms apply to your use of our software Products and Services (as those terms are defined below). By downloading any of our Products, setting up an account with us or accessing and using any of our Services:  

a.  you agree to these Terms; and

b.  where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.

1.2    If you do not agree to these Terms, you are not authorised to access and use our Products or Services, and you must immediately stop doing so.
 

2.   Changes

2.1 We may change these Terms at any time by notifying 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.  You are responsible for ensuring you are familiar with the latest Terms.  By continuing to access and use our Products or Services from the date on which the Terms are changed, you agree to be bound by the changed Terms.


2.2 These Terms were last updated on 21 April 2017.
 

3.   Interpretation

In these Terms:
App includes mobile apps, web app and other application software.

Apple means Apple Inc. and its subsidiaries.

Bluelab Software means the Products and any software owned by us (and our licensors) that is used to provide the Services.
Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of our Products and Services. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the Bluelab Software. Your Confidential Information includes the Data.

Data means all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is transmitted or stored using, or input into, the Products or Services.

Fees means the applicable fees (if any) for the Products and Services set out on our pricing page on the Website, as may be updated from time to time in accordance with clause 8.6.  Currently no Fees are payable for the Products and Services covered by these Terms.

Force Majeure means an event that is beyond the reasonable control of a party, excluding:

  •     an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or

  •     a lack of funds for any reason.



Google means Google Inc.

Including and similar words do not imply any limit.

Intellectual Property Rights includes copyright and all rights anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.

Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, potentially harmful, or unlawful in any way.

a party includes that party’s permitted assigns.

a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.

personal information means information about an identifiable individual.

personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.

Products means the software products made available by Bluelab, as described in more detail on the Website and updated from time to time, including any App we may make available to enable a User to access and use our Services.

Sales Tax means goods and services tax, value-added tax, sales tax or equivalent tax payable under any applicable law.
Services means the services made available by Bluelab, having the core functionality described on the Website, as the Website is updated from time to time.

Start Date means the date that you first agree to these Terms under clause 1.1.  

Terms means these terms titled Bluelab software and services terms of use.

Underlying Systems means the Bluelab Software and the IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.

User means a user of our Products or Services.

We, us or our means Bluelab Corporation Limited, New Zealand company number 2352700 or its designated subsidiary or affiliate.

Website means any of the internet sites at www.bluelab.com, www.getbluelab.com, or such other site notified to you by us.

Year means a 12-month period starting on the Start Date or the anniversary of that date.

You or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.

Words in the singular include the plural and vice versa.

A reference to 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.
 

4.   Provision of the Services
4.1 We will provide the Products and Services:

a. in accordance with these Terms and New Zealand law;


b. exercising reasonable care, skill and diligence; and


c. using suitably skilled and experienced personnel.


4.2 Our provision of the Products and Services to you is non-exclusive.  Nothing in these Terms prevents us from providing any of the Products and Services to any other person.


4.3 Subject to clauses 4.6 and 4.7, we will use reasonable efforts to ensure the Services are available on a 24/7 basis.  However, it is possible that on occasion the Services may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure.  We will use reasonable efforts to publish on the Website and/or notify you by email advance details of any scheduled unavailability. 

4.4 Through the use of web services and APIs, the Products and Services may enable you to access and use third party software and services, as part of, or to enable or improve your access and use of, the Products and Services.  You must use those web services, APIs, and the applicable software and services: 

a. only on systems owned or controlled by you; 


b. solely for the purpose of enabling or improving your access and use of the Products and Services; and


c. (to avoid doubt) in accordance with clauses 5.1 and 5.2 (general use and access conditions) of these Terms.


4.5  Where any web services, APIs, software or services provided under clause 4.4 are subject to third party terms:

a. you acknowledge that those third party terms form an agreement directly between you and that third party; and


b. you and your personnel must comply with those third party terms.


4.6  We do not make any warranty or representation on the availability or operability of any third party web services, APIs, software or services provided under clause 4.4, or any other third party service feature with which the Products or Services interoperate.


4.7 Without limiting clause 4.6, if a third party provider of an item (including any web service, API, software or service provided under clause 4.4) ceases to provide that item or ceases to make that item available on reasonable terms, we may cease to make available that item as part of the Products and Services.  To avoid doubt, if we exercise our right to cease the availability of a third party item, you are not entitled to any refund, discount or other compensation.


4.8  You acknowledge and agree that the Products may automatically upload and/or download data (including Data) and Product updates as background processes without User intervention (and whether or not you are logged into your account).

5.   Your Obligations
5.1 You and your personnel must:

a. use the Products and Services in accordance with these Terms solely for:
i. your own internal business purposes; and
ii. lawful purposes (including complying with any applicable anti-spam laws; and


b. not resell, resupply or make available the Products or Services to any third party, or otherwise commercially exploit the Products or Services;


c. not transfer, assign, or otherwise deal with or grant a security interest in the Products or Services, or your rights under these Terms;


d. not copy, modify or adapt, any part of the Products or Services, except:

    i. as expressly provided for in these Terms; or

    ii. in the case of the Bluelab Software, to the extent necessary to access and use them in the ordinary course of operation for their intended purposes; 


e. not decompile, reverse-engineer, or otherwise attempt to derive the source code of any Bluelab Software except to the extent expressly permitted by any law or treaty in force that cannot be excluded, restricted or modified by these Terms;

  
f. not combine, merge or incorporate the whole or any part of the Products or Services in any other services, program, software and/or system, without our prior written consent, except to the extent necessary to access and use them in the ordinary course of operation for their intended purposes; and


g. if given any unique user ID, passwords or software access keys, keep those details secure and:

    i. not permit any other person to use them, including not disclosing or providing them to any other person; and

    ii. immediately notify us on becoming aware of any disclosure or unauthorised use of those details.


5.2 When accessing and using the Products and Services, you and your personnel must:

a. not impersonate another person or misrepresent authorisation to act on behalf of others or us;


b. correctly identify the sender of all electronic transmissions;


c. not attempt to undermine their security or integrity or the security or integrity of any Underlying Systems; 


d. not use or misuse them in any way which may impair the functionality of the Underlying Systems or impair the ability of any other User to use the Services;


e. not impose an unreasonable or disproportionately large load on the Services or any Underlying Systems;


f. not attempt to view, access or copy any material or data other than that which you are authorised to access; and


g. neither use them in a manner, nor transmit, input or store any Data, that infringes any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.


5.3 You may authorise any member of your personnel to be a User.  You must procure each such User’s compliance with clauses 4.4, 5.1 and 5.2 and any other reasonable condition notified by us to you.


5.4 A breach of any of these Terms by your personnel (including, to avoid doubt, a User referred to under clause 5.3) or any person using any unique user ID, passwords or software access keys allocated to you or your personnel is deemed to be a breach of these Terms by you.


5.5 You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Products and Services, including to use, store and input Data into, and process and distribute Data through, the Products and Services.

6.   Apps
6.1 If you or your personnel install, access or use: 

    
a. an iOS App (i.e. an App for use with iPhones, iPads and other Apple devices) made available via the Apple App Store:

i.    the licence for the App is concluded between us and the App user only, and not with Apple; 

ii.    the App is licensed to the App user on the terms set out in Apple’s standard licensed application end user licence agreement (available at http://www.apple.com/legal/internet-services/itunes/us/terms.html); and

iii.    despite anything else in these Terms, the App user’s licence to use the App is limited as set out in the usage rules in Apple’s App Store Terms of Service (available at http://www.apple.com/legal/internet-services/itunes/us/terms.html); and


b. an App for Android devices made available via Google Play, the use of the App is additionally subject to the Google Play Terms of Service (available at https://www.google.com/mobile/android/market-tos.html).


6.2 Where clause 6.1 applies:

a. we and you both acknowledge and agree that Bluelab, not Apple or Google, is solely responsible for the App and the content of the App, and for addressing any claims by the App user or any third party relating to the App or the App user’s possession and/or use of the App, including, but not limited to:

i. product liability claims; 

ii. any claim that the App fails to conform to any applicable legal or regulatory requirement; 

ii. claims arising under consumer protection or similar legislation; and

iv. investigation, defence, settlement and discharge of any third party claim that the App or the App user’s possession and use of the App infringes that third party’s Intellectual Property Rights.


b. Questions, complaints or claims with respect to the App should be directed to:

Bluelab Corporation Limited
8 Whiore Avenue, Tauriko Business Estate, Tauranga, 3110, New Zealand
+64 7 578 0849
support at bluelab.com
 
7.   Data and Privacy
7.1 We collect, use, share and store, information and data, including personal information, in accordance with our data protection and privacy policy available at https://www.bluelab.com/contact-us/privacy-policy, the New Zealand Privacy Act 1993, and other applicable privacy laws.


7.2 You acknowledge that:

a. we may require access to the Data to exercise our rights and perform our obligations under these Terms; and


b. to the extent that this is necessary but subject to clause 11, we may authorise a member or members of our personnel to access the Data for this purpose. 


c. You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 7.2.


7.4 You acknowledge and agree that to the extent Data contains personal information, in collecting, holding and processing that information through the Service, we are acting as your agent for the purposes of the Privacy Act 1993 and any other applicable privacy laws.  You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.


7.5 While we will take standard industry measures to back up all Data stored using the Services, you agree to keep a separate back-up copy of all Data transmitted or stored using, or input into, the Products or Services by you.


7.6 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 Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.

8.  Fees
8.1 You must pay us the applicable Fees for the Products and Services that you have selected. 


8.2 If applicable, we will provide you with valid Sales Tax invoices prior to the due date for payment and, where any Fees are payable on a subscription basis, in accordance with the applicable subscription plan set out on our pricing page available on the Website.  




8.3 The Fees exclude Sales Tax, which you must pay on any taxable supplies.




8.4 You must pay the Fees:
a. in accordance with the payment terms set out on our pricing page available on the Website; and

b. electronically in cleared funds without any set-off or deduction.


8.5 If Fees are payable, we may charge interest on overdue amounts.  Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or, if our primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.


8.6 We may impose Fees or increase the Fees by giving at least 30 days’ notice.  If you do not wish to pay the new or increased Fees, you may terminate these Terms and your right to access and use the applicable Products and Services on notice, provided the notice is received by us before the effective date of the new Fee or Fee increase.  If you do not terminate these Terms and your right to access and use the applicable Products and Services in accordance with this clause, you are deemed to have accepted the new or increased Fees.
 

9.   Support Services
9.1 are due) and maintaining a proper operating environment for the use of the Products in accordance with any guidance that we provide, we will provide you with the support services described in this clause 9 for the duration of your right to access and use the Products and Services.


9.2 Where you consider on reasonable grounds that the Products or Services are not performing materially in accordance with these Terms or any documentation made available by us (including on the Website), we will: 

a. provide telephone, web and email support in the form of consultation, assistance and advice; and


b. use reasonable efforts to assist in the resolution of the issue (taking into account the nature and severity of the issue).


9.3 Our provision of support under this clause 9 is conditional on you:

a. contacting us during business hours, being:

i. for our Los Angeles, US office, 7.00am to 5.30pm Pacific Standard Time or Pacific Daylight Time (as applicable), excluding public holidays in California, US; 

ii. for our New Zealand office, 8.30am to 5.00pm New Zealand Standard Time, excluding public holidays in Auckland, New Zealand; and


b. contacting us via one of the following methods:

i. by phone:

  • for our Los Angeles, US office:  1-855-525-8352

  • for our New Zealand office +64 7 578 0849   

ii. by email: support at bluelab.com

iii. using the web-based chat forum on the Website

iv. using the web contact form at https://www.bluelab.com/contact-us

9.4 We are not obliged to provide any support services to the extent that any issue with the Products or Services arises from or in connection with:

a. modification or alteration of the Products or Services by any person other than us; or


b. a breach of these Terms by you, including using the Products or Services in a manner or for a purpose not reasonably contemplated by these Terms.

10.   Intellectual Property
10.1 Services, the Website, and all Underlying Systems is and remains the property of us (and our licensors).  You must not dispute that ownership.

10.2 Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property.  You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms. 


10.3 To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Products and Services.


10.4 If you provide us with ideas, comments or suggestions relating to the Products or Services (together feedback):

a. all Intellectual Property Rights 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


b. we may use or disclose the feedback for any purpose.


10.5 Any link from the Products or Services to a third party website or feed does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators.  To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.

11.  Confidentiality
11.1 Each party must, unless it has the prior written consent of the other party:

a. keep confidential at all times the Confidential Information of the other party; 


b. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and


c. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 11.1a and 11.1b.


11.2 The obligation of confidentiality in clause 11.1a does not apply to any disclosure or use of Confidential Information:

a. for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;


b. required by law (including under the rules of any stock exchange);


c. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;


d. which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or


e. by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 11.

 

12.  Confidentiality
12.1 Each party warrants that it has full power and authority to enter into, and perform its obligations, under these Terms.


12.2 To the maximum extent permitted by law:

a. our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded; and


b. we make no representation concerning the quality of the Products or Services and do not promise that the Products or Services will:

i. meet your requirements or be suitable for a particular purpose, including that the use of the Products or Services will fulfil or meet any statutory role or responsibility you may have; or

ii. be secure, free of viruses or other harmful code, uninterrupted or error free.


12.3 Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms.  However, our liability for any breach of that condition or warranty is limited, at our option, to:

a. supplying the relevant Product or Service again; and/or


b. paying the costs of having the relevant Product or Service supplied again.


13.  Liability
13.1 connection with these Terms or relating to the Products and Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, will not in any Year exceed an amount equal to the Fees paid by you relating to the Products and Services in the previous Year (which in the first Year is deemed to be the total Fees paid by you from the Start Date to the date of the first event giving rise to liability) or where no Fees were payable for the applicable Products and Services, the amount of NZD500:

13.2 Neither party is liable to the other under or in connection with these Terms or the Products or Services for any: 

a. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or


b. consequential, indirect, incidental or special damage or loss of any kind.


13.3 Clauses 13.1 and 13.2 do not apply to limit our liability under or in connection with these Terms for:

a. personal injury or death;


b. fraud or wilful misconduct; or 


c. a breach of clause 11; or


d. any liability that cannot legally be excluded or limited as set out in these Terms.


13.4 Clause 13.2 does not apply to limit your liability:

a. to pay the Fees;


b. under the indemnity in clause 7.6; 


c. for those matters stated in clause 13.3a to 13.3c; 


d. for breach of clause 5; or 


e. for infringement of our Intellectual Property Rights.


13.5 Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.


13.6 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Products or Services.

14.  Term, Termination and Suspension
14.1 Unless terminated under this clause 14, these Terms and your right to access and use the applicable Products and Services:

a. starts on the Start Date; and


b. continues until you cease to use the Products and Services or we give notice that these Terms and your access to and use of the Products and Services will terminate on the expiry of that notice. 


14.2 Subject to clause 8.6, if the subscription option you have selected includes a minimum initial term, the earliest date for termination under clause 14.1 will be the expiry of that initial term.


14.3 You may terminate these Terms and your right to access and use the Products and Services in accordance with clause 8.6.


14.4 Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.


14.5 On termination of these Terms, you must pay all Fees for the provision of the Products and Services prior to that termination.


14.6 No compensation is payable by us to you as a result of termination of these Terms and your access and use of the Products and Services for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.  
 

14.7 Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of these Terms but subject to clause 14.8, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.  


14.8 At any time prior to one month after the date of termination, you may request: 

a. a copy of any Data stored using the Services, provided that you pay our reasonable costs of providing that copy.  On receipt of that request, we will provide a copy of the Data in a common electronic form.  We do not warrant that the format of the Data will be compatible with any particular software; and/or


b. deletion of the Data stored using the Services, in which case we must use reasonable efforts to promptly delete that Data.  

To avoid doubt, we are not required to comply with clause 14.8a to the extent that you have previously requested deletion of the Data.

14.9 Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Products and Services and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have:

a. undermined, or attempted to undermine, the security or integrity of the Products or Services or any Underlying Systems;


b. used, or attempted to use, the Products or Services:

i. for improper purposes; or

ii. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Products or Services; 


c. transmitted, inputted or stored any Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or


d. otherwise materially breached these Terms.

15.  General
15.1 Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.


15.2 No person other than you and us has any right to a benefit under, or to enforce, these Terms.


15.3 For us to waive a right under these Terms, that waiver must be in writing and signed by us.


15.4 Subject to clause 7.4, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.


15.5 If we need to contact you, we may do so by email or by posting a notice on the Website.  You agree that this satisfies all legal requirements in relation to written communications.


15.6 These Terms, and any dispute relating to these Terms or the Products or Services, are governed by and must be interpreted in accordance with the laws of New Zealand.  Each party submits to the non-exclusive jurisdiction of the courts of New Zealand in relation to any dispute connected with these Terms or the Products or Services.


15.7 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 7.6, 10, 11, 13, 14.4 to 14.8 and 15.6, continue in force.   


15.8 If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.  If a modification is not possible, the part or provision must be treated for all purposes as severed from these Terms.  The remainder of these Terms will be binding on you.


15.9 Subject to clauses 2.1 and 8.6, any variation to these Terms must be in writing and signed by both parties.


15.10 These Terms set out everything agreed by the parties relating to the Products and Services, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date.  The parties have not relied on any representation, warranty or agreement relating to the Products or Services that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date.  


15.11 You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld.  You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.