Terms of UseLast revised: June 2011 These terms apply to your access to, and use of, the entire contents of the www.thebakit.com website (“The BA Kit Website”), including any unique URL that we may provide to you via that website, and any services made available to you via or in relation to The BA Kit Website (including support via email, Twitter our blog and other social media channels). The website and those services are collectively called the “Services” in these terms. The Services are provided by or on behalf of The BA Kit Limited of Wellington, New Zealand (also called “The BA Kit”, “we”, “us” and “our” in these terms). These terms form a legal agreement between you and us. You are considered to have accepted these terms if you click to confirm your acceptance or agreement (where this option is provided to you) or if you otherwise view or use Services in any way. You may be entering into this agreement as an individual user and/or on behalf of a company or other legal entity. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind that company or entity to this agreement, in which case references to "you" and "your" are references to that company or entity. If you do not agree to these terms, or do not have the authority mentioned above, you are not permitted to use the Services. 1. Your right to use the Services So long as you comply with these terms, we grant you a non-exclusive and non-transferable right to access and use the Services in the manner we make them available to you from time to time. This right is subject to these terms and is limited by the type of account you have with us and any notices displayed as part of the Services or that we provide to you. For example, the plan you are on may only permit a certain number of users to access and use the Services under your account. You are granted different rights in relation to The BA Kit Content, as set out in section 2 below. Except as set out above, you are not granted any other rights in relation to the Services. Note: Access to the Services requires a web browser of Internet Explorer 7.0 or higher, Mozilla Firefox 3.0 or higher, or any other current modern web browser we may from time to time advise of in writing. JavaScript must be enabled on your web browser for the Services to properly function. 2. Your right to use The BA Kit Content As a part of the Services, The BA Kit templates and other information will be made available to you on The BA Kit Website to access, use and/or download (“The BA Kit Content”). So long as you comply with these terms, we grant you a non-exclusive and non-transferable right to access, use, copy, modify, download and print out The BA Kit Content solely for your internal business purposes in the manner we make it available to you from time to time and subject to any other terms and conditions that accompany The BA Kit Content. You are not granted any other rights in relation to The BA Kit Content and your rights to The BA Kit Content cease when this agreement ends. 3. Your Data We do not own any of the information, data, files and other content that you upload to or provide to the Services (“Your Data”). So, you grant to us and our suppliers and contractors the right to store, use, modify, adapt, reproduce, publish, display, distribute and communicate Your Data for the purpose of providing, enhancing and supporting the Services. You represent and warrant to us that you have the right and authority to grant these rights and Your Data will not violate these terms. If this agreement ends for any reason, or your account is closed (in accordance with section 12 (Ending the services and this agreement) below), we will retain Your Data for a period of approximately 90 days, after which we will delete it. However, we will delete it earlier if you ask us to do so. You will not be able to access Your Data once your account has been closed or this agreement ends. While we endeavour to backup and keep Your Data secure we do not represent or warrant that it is completely secure or recoverable or will never be lost or damaged. We will collect statistical information about your use of the Services to help us analyse usage of, and improve, the Services. This information may include:
Occasionally this information may include Your Data (for example, file names of downloaded documents). Except as set out above, or unless you otherwise permit us to, we and our service providers will not view or access any of Your Data except for the purposes of preventing or resolving a problem, support issues, a suspected violation of this agreement, or if we consider it is required by law. 4. Intellectual Property We alone (or our licensors) own and shall retain all rights, title and interest, including intellectual property rights (whether or not registered and anywhere in the world), in and to the Services and The BA Kit Content (including the user interface, design and look and feel of the Services and in any underlying software, ideas or know-how). You agree that any feedback or suggestions that you provide to us in relation to the Services or The BA Kit Content is not confidential and becomes our intellectual property. Our trademarks, logos and business, product and domain names are also owned by us alone and you are not granted any rights or interests in any of them. 5. Your personal information See The BA Kit Privacy Policy for the way The BA Kit collects and uses your personal information. 6. Content available via the Services All information, data, files and other content (including doc, image, audio and video files) that you may have access to as part of or via the Services (“Content”) is the sole responsibility of the person or organisation from which that Content originated. We do not endorse or approve Content and are not liable in any way for your (or anyone else’s) use or reliance on Content. 7. These terms may change From time to time, we may change these terms. We will endeavour to give you notice before the new version of the terms take effect by either emailing you with notice of the changed terms (sent to the System Manager(s) under your account (each a “System Manager”) using the email they have last given us), or by displaying a notice as part of the Services (for example, on The BA Kit Website). Any use by you of the Services after the new version of the terms has been posted on The BA Kit Website confirms your acceptance of the new version of the terms. 8. Your responsibilities You (and not us) are responsible for your use of the Services (including The BA Kit Content) and any and all activity that occurs under your account and any accounts under your account (including Content that is posted, created, transmitted or displayed). Such use and activity is collectively called “Your Activity” in these terms. It is your responsibility to:
You understand that violation of any of the foregoing may result in the immediate termination of this agreement, and may subject you to penalties and other legal consequences as may be imposed by governing authorities within your country of residence. 9. Pricing, payment, and changes to the fees You must pay all of the relevant fees and other charges related to your pricing plan at the times and in the way specified by us on The BA Kit Website, or as otherwise agreed by us in writing. The Services for monthly plans are billed monthly in advance from the date you sign up for a pricing plan. If you select an annual plan, the Services are billed annually in advance from the date you sign up for a pricing plan. Subject to clause 12 (Ending the services and this agreement), all payments are non-refundable, including if you don’t use the Services, close your account or downgrade your plan during a billing cycle. If you upgrade your plan, we may bill you a pro-rated amount of your new pricing plan corresponding to the amount of time left between the date of upgrade and the end of your current billing cycle. Invoices will be sent to the Billing Contact provided to us for your account (“Billing Contact”). If you are a System Manager, you agree to notify us immediately of any changes to the Billing Contact or their contact details. Payment is by credit card or as otherwise agreed by us in writing. All fees will be in US Dollars or as otherwise agreed by us in writing. Our fees do not include taxes, duties or levies, except if a goods and services tax is applicable, in which case the amount will be included and specified in your invoice. We reserve the right to increase the fees we charge for the Services and will endeavour to provide advance notice of such increases. If you don't agree to the new fees you can choose to end this agreement by taking the steps set out in section 12 (Ending the services and this agreement) below. 10. Disclaimers and exclusions of warranties The Services are provided to you on an "as is" and "as available" basis and your use of them is at your sole risk. The nature of the Services means we do not represent or warrant that they will be secure, reliable, free of defects or viruses or always available (including at a certain speed), that they will meet your requirements, that any BA Kit Content or Content is accurate, current, complete or reliable, or that all problems can or will be corrected. This is in part because of the reliance of the Services on systems and networks that are not owned or controlled by us. Sometimes the Services will be unavailable or your use will be limited because of maintenance or other work that is being undertaken. We will endeavour to provide advance notice of planned service interruptions. We give no warranties in relation to the Services. To avoid doubt, all warranties, representations and conditions in relation to the Services, whether express or implied, are excluded to the fullest extent permitted by law (including any warranties of fitness for purpose, merchantability, title and non-infringement). You represent to us that your access and use of the Services is for the purposes of a business and so you agree that the guarantees and remedies provided in the New Zealand Consumer Guarantees Act 1993 do not apply to the Services. However, if you are accessing and using the Services in Australia, despite any other provision of this agreement, where any Australian Act implies any term into this agreement, and that Act avoids or prohibits provisions in a contract excluding or modifying such term, that term shall be deemed to be included in this agreement, but The BA Kit’s liability for breach of that term shall be limited in one or more of the ways (at The BA Kit’s option) permitted by section 64 of Schedule 2 of the Competition and Consumer Act 2010. 11. Changes to the Services We may, at our sole discretion, modify the whole, or any part of, the Services at any time without notice to you and these terms continue to apply to any modified Services. By signing up to the Services you agree to receiving emails from us regarding changes to the Services (for example, notifications of upcoming or recent updates, enhancements and support). There are set upper limits on the storage space related to your account (for example, different plans have different sized data caps). If you exceed those limits we reserve the right to immediately disable your account or limit your file hosting until you can reduce your data storage to a level that we consider reasonable. If you exceed your data cap, additional fees may apply. 12. Ending the services and this agreement A System Manager or the holder of the account under which you obtained your account may cancel your account and end this agreement at any time for any reason by giving us notice via email to support@thebakit.com. We may end this agreement for any reason by giving you at least 30 days notice beforehand. If you are on an annual plan and we end this agreement in accordance with this provision you will be entitled to a refund of a pro-rated amount of your last annual fee corresponding to the amount of time left between the date of termination and the end of your current billing cycle.
We may also end this agreement, and/or end, suspend or restrict your access and use of the Services, at any time without notice to you if:
Taking any of the steps above does not limit any other rights or remedies that may be available to us. Ending this agreement or any of the Services does not affect sections 3, 4, 5, 6, 10, 12, 13, 14 and 15 (which will continue to operate) or any rights or remedies that have accrued beforehand. 13. Limitation and exclusions of liability We, and our suppliers, contractors, directors, employees and agents (“Our Personnel”), will not be liable to you or any third party for any loss or damage to Your Data or any User Content, breach of security or privacy, loss of profit, revenue, opportunity or saving, or any incidental, indirect, special or consequential loss or damage. Subject to the exclusions of liability in these terms (including this clause 13), the total aggregate liability of us and Our Personnel (together) to you arising under, out of, or in connection with these terms, the Services, The BA Kit Content, Your Data and all things we or Our Personnel have done or not done will under no circumstances exceed NZD$5,000. The total aggregate liability above, and any exclusions or disclaimers of liability in these terms, shall apply however liability arises, whether in contract, in tort (including negligence), for breach of statutory duty or otherwise. We will not be responsible or liable for any failure or delay to perform our obligations due to any cause that is beyond our reasonable control or any failure by you to perform any of your obligations. 14. Indemnity You fully indemnify us from and against all claims, damages, losses, liabilities and costs arising from or related to Your Activity or any breach of these terms by you or any user of an account under your account. 15. General In these terms, words in the singular include the plural and vice versa; any examples in these terms, and references to "including" and similar words, are illustrative only and do not imply any limitations; and clause and other headings are for ease of reading only and do not affect the interpretation of these terms. A reference to any legislation includes any amendment, consolidation, re-enactment or replacement of that legislation.
These terms constitute the entire agreement and understanding between you and us in respect to its subject matter and replaces all previous agreements, understandings and representations relating to that subject matter and any additional or different terms that you may provide to us (including on any purchase orders). Anything we need to notify or tell you of in writing under these terms may be sent to you by email to the last address you gave us. We can assume that any communication from us (including those sent by email or post) has been received by you two days (or seven days if by international post) after it was sent unless we have been notified to the contrary (for example, if we receive notice of failure or delay in the delivery of an email). Any waiver of any of these terms must be in writing and signed by one of our authorised representatives. Any delay or failure by us to exercise any right does not prevent us from exercising that right, or any other right, on that or any other occasion. If any provision of these terms is held to be illegal, invalid or unenforceable it shall be deemed to be amended so that it accomplishes the original purpose of that provision as far as possible. The legality, validity or enforceability of the remaining provisions shall not be affected. These terms are governed by the laws of New Zealand and you submit to the non-exclusive jurisdiction of the New Zealand courts. |