Legal Stuff
ThinkGo Limited Customer Terms of Service
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
Our Customer Terms of Service is a contract that governs our customers' use of the ThinkGo services. It consists of the following documents:
General Terms: These contain the core legal and commercial terms that apply to your use of our products and services. Any references to Master Terms means these General Terms.
Data Processing Agreement (DPA): This explains how we process your data.
Acceptable Use Policy (AUP): This is the rulebook setting out what you can and can’t do while using our products and services.
Your Order Form is the ThinkGo-approved form created following your purchase of one of our products or services through our online payment process or via in-app purchase. It contains all of the details about your purchase, including your subscription term, products and services purchased and your fees. You’ll find your Order Form(s) in the Accounts and Billing section of your ThinkGo account (within Stripe). You can learn more about how to locate your Order Form, invoices and receipts at this knowledge base article at https://beam.thinkgo.co.nz.
We’ve aimed to keep these documents as easy to read and understand as possible.
By using the Subscription Service or receiving the Consulting Services, you are agreeing to these terms.
We update these terms from time to time. If you have an active ThinkGo subscription, we will let you know when we update the terms via email (if you subscribe to receive email updates).
General Terms
Last modified: 12 May 2024
Definitions
Use of Services
Fees
Term & Termination
Customer Data
Intellectual Property
Confidentiality
Publicity
Indemnification
Disclaimers and Liability
Miscellaneous
1. DEFINITIONS
"Agreement" or “Customer Terms of Service” means these General Terms and all materials referred or linked to in here, unless otherwise stated. Throughout this Agreement, we link to knowledge base articles to help facilitate your use of our products and services and manage your ThinkGo account; however, these knowledge base articles are for your information only, and they are not incorporated into this Agreement.
"Authorised Payment Method" means a current, valid, payment method accepted by us, as may be updated from time to time and which may include payment through your account with a third party.
"Billing Period" means the period for which you agree to prepay fees under an Order Form. This may be the same length as the Current Term specified in the Order Form, or it may be shorter. For example, if you subscribe to the Subscription Service for a three month (3) Current Term, with a three (3) month upfront payment, the Billing Period will be three (3) months.
“Confidential Information” means all confidential information disclosed by a party and its Affiliates ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or a reasonable person would consider confidential. Confidential Information includes all information concerning: the Disclosing Party's customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information does not include any information that
(i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,
(iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or
(iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.
"Contact Information" means the name, email address, phone number, online user name(s), and similar information submitted by you or users of ThinkGo’s website on the Subscription Service or uploaded by you to the Subscription Service.
"Consulting Services" means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
"Customer Data" means all information that you submit or collect via the Subscription Service. Customer Data does not include ThinkGo Content.
"Customer Materials" means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.
“DPA” means the ThinkGo Data Processing Agreement at http://thinkgo.co.nz/legal-stuff.
“Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
"ThinkGo Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services.
“Jurisdiction” means the country of New Zealand and its applicable laws.
"Order" or "Order Form" means the ThinkGo-approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase Consulting Services.
“Personal Information” means any information relating to an identified or identifiable individual where (i) such information is contained within Customer Data and (ii) is protected as personal data, personal information, or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).
"Privacy Policy" means the ThinkGo Privacy Policy available at http://thinkgo.co.nz/legal-stuff, as updated by us from time to time.
“Product and Services Catalog” means ThinkGo’s Product and Services Catalog available at http://www.thinkgo.co.nz/legal-stuff/thinkgo-product-and-services-catalog, as updated by us from time-to-time.
"Sensitive Information" means credit or debit card numbers; financial account numbers or wire instructions; government issued identification numbers (such as Social Security numbers, passport numbers), biometric information, personal health information (or other information protected under any applicable health data protection laws), personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under GDPR (as defined in the DPA) or any other applicable law relating to privacy and data protection.
"Subscription Fee" means the amount you pay for the Subscription Service.
"Subscription Service" means all of our web-based applications, tools and platforms that you have subscribed to under an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via http://thinkgo.co.nz or another designated URL, and any ancillary products and services, that we provide to you.
"Subscription Term" means, collectively, the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s) (the "Initial Term"); and each subsequent renewal period (if any) (each a "Renewal Term"). Your "Current Term" is your then-current committed period of Subscription Services, as either an Initial Term or Renewal Term.
For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-ThinkGo apps available from, for example, our resources and links made available through the Subscription Service and non-ThinkGo services listed on http://beam.thinkgo.co.nz.
"Third-Party Sites" means third-party websites linked to from within the Subscription Service, including Communications Services.
“Total Committed Subscription Value” means the aggregate amount of Subscription Fees paid or payable to us during your Current Term(s) for all of your ThinkGo accounts, but this amount excludes fees for renewals, Consulting Services and applicable taxes.
"Users" means your employees, representatives, consultants, contractors or agents who are authorised to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
"ThinkGo", "we", "us" or “our” means ThinkGo Limited, NZBN 9429051507428.
"You", "your" or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer and your Affiliates included in the scope of your purchase.
2. USE OF SERVICES
2.1 Access. During the Subscription Term, we will provide your Users access to use the Subscription Service as described in this Agreement and the applicable Order. We may provide your Users access to use our Free Services at any time by activating them in your ThinkGo account. We might provide some or all elements of the Subscription Service through third party service providers.
You must ensure that all access, use and receipt by your Users is subject to and in compliance with this Agreement. You may provide access and use of the Subscription Service to your Affiliate's Users or allow them to receive the Consulting Services purchased under an Order; provided that, all such access, use and receipt by your Affiliate's Users is subject to and in compliance with the Agreement and you will at all times remain liable for your Affiliates' compliance with the Agreement.
2.2 Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your ThinkGo account (if this option is made available by us.). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your ThinkGo account.
2.3 Availability and Uptime. For details of ThinkGo’s Service Uptime Commitment, please see the Product Specific Terms.
2.4 Limits. The limits that apply to you will be specified in your Order Form, this Agreement or in our Product and Services Catalog, and for our Free Subscriptions, these limits may also be designated only from within the product itself. For further information on the limits that apply to your subscription, please refer to the Product Specific Terms.
You must be 18 years of age or older to use the Subscription Service.
2.5 Downgrades. Depending on your ThinkGo product, you may be entitled to downgrade your subscription. For further information on the downgrade terms that apply to your subscription, please refer to the Product Specific Terms.
2.6 Modifications. We work hard to continually enhance our Subscription Services. Although we try to introduce modifications in a minimally disruptive way, you may see changes to the Subscription Services. We may make these changes for a number of reasons including changes required by applicable law or regulation; changes based on Third-Party Product or Third-Party Sites; changes that add or delete features and functions, in an effort to improve your experience. For further information on our modification rights that apply to your subscription, please refer to the Product Specific Terms.
2.7 Customer Support. For information on the customer support terms that apply to your subscription, please refer to the Product Specific Terms.
2.8 Acceptable Use. You will comply with our Acceptable Use Policy at http://thinkgo.co.nz/legal-stuff/acceptable-use ("AUP").
2.9 Prohibited and Unauthorised Use. You will not use the Subscription Service in any way that violates the terms of the AUP or for any purpose or in any manner that is unlawful or prohibited by this Agreement. You will not (i) directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to uncover or discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Subscription Services or any software, documentation or data related to the Subscription Services; (ii) modify, translate, or create derivative works based on the Subscription Services (except to the extent expressly permitted by us); (iii) or remove any proprietary notices or labels.
You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service.
The Subscription Service is not designed to comply with industry-specific regulations such as the United States’ Health Insurance Portability and Accountability Act (HIPAA) or the United States’ Federal Information Security Management Act (FISMA), so you may not use the Subscription Service where your communications would be subject to such laws. You may not use the Subscription Service in a way that would violate the United States’ Gramm-Leach-Bliley Act (GLBA). Nothing contained in this section limits the usage restrictions specific to Sensitive Information under the Agreement.
You will notify us promptly of any unauthorised use of your Users’ identifications and passwords or your account by following the instructions at http://success.thinkgo.co.nz.
2.10 No Sensitive Information. You acknowledge that the subscription services have not been designed to process or manage sensitive information and accordingly you agree not to use the subscription service to collect, manage or process sensitive information. We will not have and we specifically disclaim any liability that may result from your use of the subscription service to collect, process or manage sensitive information.
2.11 Customer Responsibilities. To realise the full value of the Subscription Service and Consulting Services, your participation and effort are needed. Resources that may be required from you include a business leader, one or more contributors, a sales sponsor, an executive sponsor and subject matter experts for areas requiring them, and a technical expert (or equivalent). Responsibilities that may be required include design of business plans; planning and execution of of go-to-market programs; planning and completing actions; developing and executing on objectives and key results; assembling business performance information; acting as internal liaison between customer success, product, sales, and marketing; acting as external liaison between You and Your affiliates and stakeholders; providing top level internal goals for the use of the Subscription Service; attending regular success review meetings; and supporting the integration of the Subscription Service with other line of business systems.
2.12 Free Trial. If you register for a free trial, we will make the applicable Subscription Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid subscription. All of your data in the Free Trial may be permanently deleted at the end of the trial and not recoverable. Subscription Service may be If we include additional terms and conditions on the trial registration web page, those will apply as well.
You understand the purpose of a Free Trial is to provide you the opportunity to try the features available in our paid Subscription Services. You agree the Free Trial will be used to explore the features, understand the functionality, and make purchasing decisions. For those reasons, any Customer Data imported into the Free Trial should be consistent with those purposes.
To support our legitimate business interests, including our efforts to apply data minimisation and retention steps, we may delete Customer Data if you do not enter into a paid Subscription Service under the General Terms as such data would be no longer reasonably necessary for, or directly related to the service functions.
3. FEES
3.1 Subscription Fees. The Subscription Fee will remain fixed during the Current Term of your subscription unless (i) you exceed your Maximum or other applicable limits (see the ‘Limits’ section above), (ii) you upgrade products or base packages, (iii) you subscribe to additional features or products, including additional Users, or (iv) otherwise agreed to in your Order. We may also choose to decrease your fees upon written notice to you. You can find all the information about how your fees may be otherwise adjusted in Product Specific Terms.
3.2 Fee Adjustments at Renewal. Upon renewal, we may increase your Subscription Fees up to our then-current list price set out in our Product and Services Catalog. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal and the increased fees will apply at the start of the next Renewal Term. If you do not agree to this increase, either party can choose to terminate your subscription at the end of your then-current term by giving the notice required in the ‘Notice of Non-Renewal’ section below. Please review the Product Specific Terms for information on Commerce Hub Subscription Services that have different fee adjustment notice requirements.
In order to support our ongoing development efforts and the objectives in our Investor Relations page, we have a legitimate business need to include price increases effective at the time of renewal to allow you the opportunity to consider your ongoing needs.
3.3 Payment of Fees. If you are paying by credit card, you authorise us to charge your Authorised Payment Method for all fees payable during the Subscription Term. You further authorise us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
In the event of a failed attempt to charge your Authorised Payment Method (for example, if your Authorised Payment Method has expired or is no longer valid), we reserve the right, and you authorise us, to retry billing your Authorised Payment Method. If you update your Authorised Payment Method to remedy a change in validity or expiration date, we will automatically resume billing; we may also receive updates on your Authorised Payment Method through our payment service providers and automatically resume billing. We may suspend your access in accordance with the 'Suspension' section or terminate your account in accordance with the 'Termination for Cause' section if we remain unable to successfully charge a valid Authorised Payment Method.
3.4 Payment Against Invoice. All amounts invoiced are due and payable within twenty (20) days from the date of the invoice, unless otherwise specified in the Order Form. If you are paying by invoice, we will invoice you no more than forty-five (45) days before the fees are payable during the Subscription Term, for example, in advance of the beginning of the next Renewal Term and each subsequent Billing Period.
3.5 Payment Information. You will keep your business information up to date, including your company name, address, and primary contact. You will also keep your Authorised Payment Method and billing information up to date for the payment of incurred and recurring fees, including your tax information.
Changes may be made on your Billing Page within your ThinkGo account. You authorise ThinkGo to continue to charge your Authorised Payment Method for applicable fees during your Subscription Term and until any and all outstanding Fees have been paid in full. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are a ThinkGo Solutions Partner that purchases on behalf of a client, you agree to be responsible for the Order Form and to guarantee payment of all fees.
3.6 Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You will have no liability for any taxes based upon our gross revenues or net income. If you are subject to Goods and Services Tax (GST), e.g. New Zealand, Australia, all fees are exclusive of GST. We will provide you with your calculated GST prior to entering into any contract and completing your purchase.
3.7 Withholding Tax. Not applicable, you may not deduct any withholding tax from payment of your ThinkGo invoice, and you may not deduct this amount from the applicable Subscription Fee.
You will not be required to repay the Deduction Amount to us, provided that you present us with a valid tax receipt verifying payment of the Deduction Amount to the relevant tax authority within ninety (90) days from the date of the invoice. If you do not provide this tax receipt within the specified time period, then all fees, inclusive of the Deduction Amount, will be immediately due and payable, and failure to pay these fees may result in your account being suspended or terminated for non-payment.
4. TERM AND TERMINATION
4.1 Term and Renewal. Your Initial Term will be specified in your Order, and, unless otherwise specified in your Order, your subscription will automatically renew for the shorter of the same duration as your prior term, or one year. We include automatic renewal provision for convenience and to help the business continuity of our customers; since many customers use our services for important sales, marketing, and service information, we include this automatic renewal to enable your continued access to the Subscription Services. For the avoidance of doubt, unless otherwise specifically detailed in your Order Form, we will accept the notice of non-renewal at any time, so long as it is received before the next renewal period begins.
4.2 Notice of Non-Renewal. Unless otherwise specified in your Order, to prevent renewal of your subscription, you or we must give written notice of non-renewal. The deadline for sending this notice varies depending on the ThinkGo product and edition you have subscribed to. For more information on non-renewal notice periods, please see the Product Specific Terms.
If you decide not to renew, you may send this non-renewal notice to us by indicating that you do not want to renew by sending the notice to us within 30 days of your renewal and using the form available at http://beam.thinkgo.co.nz.
4.3 Early Cancellation. You may choose to cancel your subscription early at your convenience provided that, we will not provide any refunds of prepaid fees or unused Subscription Fees, and you will promptly pay all unpaid fees due through the end of your Current Term. See the 'Notice of Non-Renewal' section for information on how to cancel your subscription. We do not provide refunds for Early Cancellation under this section. You understand we incur costs relating to onboarding, provisioning access, support, and infrastructure planning. We also make investment decisions based on details from customer contracts.
4.4 Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services:
(i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or
(ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.
In the event you terminate this Agreement for cause based on ThinkGo's breach of its obligations, we will refund any prepaid but unused fees covering use of the Subscription Service after termination.
We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
This Agreement may not otherwise be terminated prior to the end of your Current Term.
4.5 Suspension
4.5.1 Suspension for Prohibited Acts
We may suspend any User’s access to any or all Subscription Services without notice for:
(i) use of the Subscription Service in a way that violates applicable New Zealand or foreign laws or regulations or the terms of this Agreement,
(ii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
We may, without notice, review and delete any Customer Data or Customer Materials that we determine in good faith violate these terms or the AUP, provided that, we have no duty (unless applicable laws or regulations provide otherwise) to prescreen, control, monitor or edit your Customer Data or Customer Materials.
We understand how important reliable access is to our customers. However, if you use the services in violation of our Customer Terms of Service, we have a legitimate business need to mitigate in good faith any risks associated with customer non-conforming use. For example, in cases where a customer’s non-conforming use may give rise to a breach of law or where the non-conforming use breaches a ThinkGo requirement owed to a third-party, we may suspend access to Subscription Services or delete Customer Data to avoid damages to ThinkGo. Please review our General Terms, including the AUP, for use requirements and conform to those thresholds to avoid a suspension.
4.5.2 Suspension for Non-Payment
We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
4.5.3 Suspension for Present Harm
If your ThinkGo site, or use of, the Subscription Service:
(i) is being subjected to denial of service attacks or other disruptive activity,
(ii) is being used to engage in denial of service attacks or other disruptive activity,
(iii) is creating a security vulnerability for the Subscription Service or others,
(iv) is consuming excessive bandwidth or storage, or
(v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service.
We will make commercially reasonable efforts to limit the suspension to the affected portion of the Subscription Service, and each party will make reasonable efforts to promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
If your actions are causing harm to other customers or threaten our security or our ability to provide the Subscription Services to all customers, we have a legitimate business interest in suspending your account to avoid negative impacts to other customers.
4.5.4 Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
4.6 Effect of Termination or Expiration. If your paid subscription is terminated or expires, we will continue to make available to you our Free Services provided however, this may not be the case if your Agreement was terminated for cause.
You will continue to be subject to this Agreement for as long as you have access to a ThinkGo account.
Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and ThinkGo Content. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
We do not provide refunds, including where we terminate the Agreement for cause. You understand we have a legitimate business interest to protect against customers seeking to avoid fulfilling their obligations under this Agreement (including payment of fees) to avoid paying fees for the rest of their contract term. You understand we may incur costs relating to supporting systems for onboarding, provisioning access, infrastructure planning, and customer support. We also may make investment decisions based on details from customer contracts, as further reflected on our Investor Relations page. For the avoidance of doubt, this paragraph does not not apply if you terminate the Agreement for cause based on our failure to fulfil our obligations.
5. CUSTOMER DATA
5.1 Customer’s Proprietary Rights. You own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as otherwise permitted by this Agreement. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
5.2 Limits on ThinkGo. We will not use Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data only in order to provide the Subscription Service and Consulting Services to you and only as permitted by applicable law and this Agreement.
5.3 Data Practices and Machine Learning.
5.3.1 Usage Data. We may collect information about you and your Users when you interact with the Subscription Service as permitted by the Agreement.
5.3.2 Machine Learning. We may use Customer Data for machine learning to support and develop features and functionality within the Subscription Service and similar products and services. You instruct us to use Customer Data for such purposes. You may opt-out of having your Customer Data used for machine learning by emailing ThinkGo@ThinkGo.co.nz.
For more information about our Machine Learning and AI products on our AI Products, visit our AI FAQ at https://thinkgo.co.nz/legal-stuff, which is provided for information purposes only and not incorporated into the legal terms of this agreement.
5.3.3 Privacy Policy.
For more information on these practices, please see our Privacy Policy.
5.4 Protection of Customer Data. The terms of the DPA are hereby incorporated by reference and will apply to the extent any Customer Data includes Personal Data. The DPA sets out how we will process Personal Data on your behalf in connection with the Subscription Services provided to you under this Agreement. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Personal Data as described in the DPA, including our Security Measures in our DPA.
5.5 Regional Data Hosting. We will store your Customer Data in a specific location or geographical region (e.g. North America, Europe or Australia) as part of your subscription subject to the terms of this Agreement.
5.6 Customer Data Transfers. We and our Affiliates may transfer Customer Data (including Personal Data) to the United States in connection with the Subscription Service. To the extent we process Personal Data that is subject to the protection of New Zealand Privacy Act 2020, we will process such Personal Data in accordance with the New Zealand Data Privacy Act 2020. As a New Zealand based business, ThinkGo is not subject to the EU-U.S. Data Privacy Framework, the UK Extension to the EU-U.S. Data Privacy Framework, and the Swiss-U.S. Data Privacy Framework (collectively, the "Data Privacy Framework").
5.7 Retention, Deletion and Retrieval of Customer Data. For information regarding the retention and deletion of Customer Data, please see the ‘ThinkGo Obligations’ section of our DPA. You can learn more about your right to retrieve Customer Data from your ThinkGo account in the ‘Retrieval of Customer Data’ sections as specified in our Product Specific Terms.
6. INTELLECTUAL PROPERTY
6.1 This is an agreement for access to and use of the Subscription Service, and you are not granted a licence to any software by this Agreement. We retain all intellectual property rights to the ThinkGo Content, the Subscription Service, the Consulting Services, and any other products or services provided under this Agreement. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the ThinkGo Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorised in writing by us. Our trademarks include, but aren’t limited to, those listed on our trademarks page at http://thinkgo.co.nz/legal-stuff (which we may update at any time without notice to you), and you may not use any of these without our prior written permission.
6.2 We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.
7. CONFIDENTIALITY
7.1 The Receiving Party will:
(i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care,
(ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement,
(iii) not disclose Confidential Information of the Disclosing Party to any third party (except those third party service providers used by us to provide some or all elements of the Subscription Service or Consulting Services and ThinkGo Solutions Partners bound by confidentiality obligations), and
(iv) limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
7.2 The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any New Zealand or foreign law, statute, rule or regulation, subpoena or legal process; provided, however, that
(i) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate;
(ii) the Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order; and
(iii) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure, including in circumstances where the Disclosing Party refuses to provide their consent or fails to respond to the Receiving Party’s inquiries in connection with the request to disclose the Confidential Information.
8. PUBLICITY
You grant us the right to add your name and company logo to our customer list and website. You can opt-out of this use by filling out the Publicity Opt-Out form at http://thinkgo.co.nz/legal-stuff.
9. INDEMNIFICATION
You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and Affiliates) by a third party not affiliated with us or our Affiliates to the extent that such Action is based upon or arises out of
(a) unauthorised or illegal use of the Subscription Service by you or your Affiliates,
(b) your or your Affiliates' noncompliance with or breach of this Agreement,
(c) your or your Affiliates' use of Third-Party Products, or
(d) the unauthorised use of the Subscription Service by any other person using your User information.
We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defence or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defence or settlement of the claim. You will not accept any settlement that
(i) imposes an obligation on us;
(ii) requires us to make an admission; or
(iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
You understand you are in full control over your use of the Subscription Services, including your own compliance obligations. Since you control how you use the Subscription Services, we are limited in our ability to mitigate possible damages that may arise from your use. Therefore, we include this indemnification provision to allocate liability to the customer as the party controlling the risk factors.
We will provide you with IP Indemnification as defined in Appendix 1 to this Agreement
i) regardless of your Total Committed Subscription Value,
ii) subject to the conditions set forth in the ‘ThinkGo Indemnification’ section of Appendix 1 to this Agreement, and
iii) subject to the ‘Limitation of Liability’ section of the General Terms.
10. DISCLAIMERS; LIMITATION OF LIABILITY
10.1 Performance Warranty. We warrant that:
(i) the Subscription Service and Consulting Services will be provided in a manner consistent with generally accepted industry standards, and
(ii) we will not knowingly introduce any viruses or other forms of malicious code into the Subscription Service; provided however, this warranty will not apply to you if you only use the Free Services.
In the event of non-conformance with this warranty, we will use commercially reasonable efforts to correct such non-conformance. If we cannot correct such non-conformance within sixty (60) days from the date when you notified us of the non-conformity (the “Remedy Period”), then either party may terminate this Agreement by providing the other party written notice within thirty (30) days after the end of the Remedy Period. If you terminate the Agreement for this reason, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement.
We will not have any obligation or liability under this section if the non-conformance is caused by or based on:
(i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us,
(ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, or
(iii) use of the Subscription Service in violation of or outside the scope of this Agreement.
THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED FOR UNDER THIS SECTION.
10.2 Disclaimer of Warranties. Except as set forth in the ‘Performance Warranty’ section and without limiting our obligations in the 'Protection of Customer Data' section of this agreement, we and our affiliates and agents make no representations or warranties about the suitability, reliability, availability, timeliness, security, accuracy or completeness of the Subscription Service, data synched to or made available from the Subscription Service, ThinkGo content, or the consulting services for any purpose. Application programming interfaces (APIs) may not be available at all times. To the extent permitted by law, the subscription service, ThinkGo content and consulting services are provided "as is" without warranty or condition of any kind. We disclaim all warranties and conditions of any kind, whether express, implied or statutory, with regard to the subscription service and the consulting services, including all implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement.
10.3 No Indirect Damages. To the extent permitted by law, in no event will either party or its affiliates be liable for any indirect, incidental, punitive, or consequential damages, or loss of profits, revenue, data or business opportunities arising out of or related to this agreement, whether an action is in contract or tort and regardless of the theory of liability; provided that, this limitation will not apply to you if you only use the free services.
10.4 Limitation of Liability. Except for your liability for payment of fees, your liability arising from your obligations under the ‘indemnification’ section, and your liability for violation of our intellectual property rights, if, notwithstanding the other terms of this agreement, either party or its affiliates is determined to have any liability to the other party, its Affiliates or any Third Party, the parties agree that the aggregate liability of a Party and its Affiliates will be limited to a sum equal to the total amounts paid or payable for the subscription service in the twelve month period preceding the event giving rise to a claim; provided however, this limitation will not apply to you if you only use the free services, and in this case, if we are determined to have any liability to you or any Third Party arising from your use of the free services, then our aggregate liability will be limited to one hundred U.S.Dollars.
You understand you are in full control over your use of the Subscription Services, including your own compliance obligations. You control how you use the Subscription Services, and we are limited in our ability to mitigate possible damages that may arise from your use. Therefore, we include this limitation of liability provision to mitigate our liability where we have limited options as the party is not in direct control of the risk factors introduced by your use.
10.5 Third Party Products. We and our Affiliates disclaim all liability with respect to Third-Party products that you use. Our licensors will have no liability of any kind under this agreement.
10.6 Agreement to Liability Limit. You understand and agree that absent your agreement to this limitation of liability, we would not provide the Subscription Service to you.
11. MISCELLANEOUS
11.1 Amendment; No Waiver.
We may modify any part or all of the Agreement by posting a revised version at http://thinkgo.co.nz/legal-stuff. The revised version will become effective and binding the next business day after it is posted. We will provide you notice of this revision by email or in-app notification.
If you do not agree with a modification to the Agreement, you must notify us in writing within thirty (30) days after we send notice of the revision. If you give us this notice, then your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date, after which the current terms posted at https://thinkgo.co.nz/legal-stuff will apply. However, if we can no longer reasonably provide the subscription to you under the terms prior to modification (for example, if the modifications are required by law or result from general product changes), then the Agreement and/or affected Subscription Services will terminate upon our notice to you and we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
11.2 Force Majeure. Except for payment obligations of amounts due under this Agreement, neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; pandemic; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.3 Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
11.4 Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
11.5 Compliance with Laws. We will comply with all New Zealand laws (where applicable) in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
We will comply with our Code of Conduct which can be found on our Investor Relations page on ThinkGo.co.nz; the Code of Conduct is incorporated into this Agreement, but any other linked materials available on our Investor Relations Page are for information only and not incorporated into these terms. You will comply with all applicable laws in your use of the Subscription Service and Consulting Services, including any applicable export laws.
You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording.
You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals.
11.6 Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
11.7 Notices. To ThinkGo: Notice will be sent to the contact address for ThinkGo Limited, and will be deemed delivered as of the date of actual receipt.
To you: your address as provided in our ThinkGo Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications centre of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
11.8 Entire Agreement. This Agreement (including each Order), along with our Privacy Policy is the entire agreement between us for the Subscription Service and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance, supplier portal, or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written comments made by us regarding future functionality or features of the Subscription Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
11.9 Assignment. You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganisation, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any ThinkGo Affiliate or in the event of merger, reorganisation, sale of all or substantially all of our assets, change of control or operation of law.
11.10 No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or will confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
11.11 Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) or any substantially similar legislation as may be enacted, will not apply to this Agreement. If you are located outside of the territory of New Zealand, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not govern this Agreement or the rights and obligations of the parties under this Agreement.
11.12 Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. You further warrant and represent that you have the authority to procure your Affiliates compliance with the terms of this Agreement.
11.13 Insurance. During the term of this Agreement, we will, at our own cost and expense, obtain and maintain in full force and effect, with reputable insurers having A.M. best ratings of at least A (VII) or better, liability insurance with coverage and minimum limits of liability as follows:
(i) Commercial General Liability Insurance (Primary & Umbrella) or equivalent, with minimum limits of $1,000,000 Each Occurrence and $2,000,000 Aggregate;
(ii) Workplace cover through New Zealand’s Accident Compensation Corporation and Standard Cover;
(iii) Professional Liability (cyber/errors and omissions liability insurance), with a limit of $1,000,000; and
(iv) Umbrella/Excess Liability Insurance, with a minimum limit of $1,000,000.
11.14 Survival. The following sections will survive the expiration or termination of this Agreement: ‘Definitions,’ ‘Fees,’ ‘Prohibited and Unauthorised Use,’ ‘Early Cancellation,’ ‘Termination for Cause,’ ‘Suspension for Prohibited Acts,’ ‘Suspension for Non-Payment,’ ‘Suspension for Present Harm,’ ‘Suspension and Termination of Free Services,’ ‘Effect of Termination or Expiration,’ ‘Intellectual Property,’ ‘Customer’s Proprietary Rights,’ ‘Confidentiality,’ ‘Publicity,’ ‘Indemnification,’ ‘Disclaimers; Limitations of Liability,’ and ‘Miscellaneous’.’ Additionally, the ‘Retrieval of Customer Data’ section will survive expiration or termination of this Agreement.
11.15 Precedence. In the event of a conflict between the terms of the Agreement and an Order, the terms of the Order will control, but only as to that Order.