MATTR Customer Agreement
Last Updated: 20 April 2022
This Agreement sets out the terms and conditions governing your access to and use of the Services and Materials (as defined below). It is an agreement between MATTR Limited (we, us, or our) and you or the entity you represent (you or your).
This Agreement takes effect when you click an “I Accept” button or tick box presented alongside these terms, or when you otherwise access or use any of the Services or Materials (Effective Date).
By entering into this Agreement, you warrant and represent that:
- you are lawfully able to enter into contracts (e.g. you are not a minor); and
- if you are entering into this Agreement for an entity (e.g. a company, government agency or other organisation), you are authorised to do so and have legal authority to bind that entity.
Use of the Services and Materials.
- General. You may access and use the Services and Materials only in accordance with this Agreement. As part of this Agreement, Service Level Agreements (SLAs) and Service Terms apply to certain Services. Service Terms may specify additional Fees, restrictions and obligations in connection with such Services. You must comply with the terms of this Agreement and all Laws applicable to your use of the Services and Materials.
- Your account. To access the Services, you must have an Account associated with a valid email address and a valid form of payment.
- Third-Party Components. You may use Third-Party Components that are made available to you on the Site or through the Services. Third-Party Components are governed by this Agreement and any separate terms and conditions accompanying such Third-Party Components (which may include separate fees and charges).
- Trial period. We may supply Services on a trial basis. Your Account may be suspended at the end of the trial period unless you upgrade your Account to continue using or accessing the Services.
Your Systems and Third-Party Components.
- Your Systems. We may need you to provide us with access to any interfaces, software, platforms, systems or infrastructure that are not owned or operated by us in order to supply a Service to you (Your Systems). For each of Your Systems:
- it is a condition of our supply of the Service that you obtain the necessary access for us on an ongoing basis (including permissions and credentials) for as long as required by us;
- we will undertake that access on your behalf. You appoint us as your agent for this purpose and consent to us representing to third parties that we are your agent for this purpose;
- if any charges or fees apply for that access, we may require you to pay those charges and fees before we supply the Service, or we may pay those charges and fees and recover them from you as Fees (with a reasonable administrative charge if specified in the relevant Service Terms); and
- you will defend, hold harmless and indemnify us from and against any claim or action brought by a third party, including all damages, liabilities, costs and expenses, and lawyers’ fees on a solicitor and own-client basis) arising out of or in connection with our use of or access to Your System in accordance with this Agreement.
- Third-Party Components
- You acknowledge that some Services that we provide are developed or provided by third parties and not by us (Third-Party Components).
- Certain Third-Party Components we provide are subject to additional Service Terms, and may be subject to a third-party licence. As set out in the Service Terms, these are provided on an ‘as-is’ basis without any warranty of any kind. If there is any conflict between this Agreement and that separate licence, the separate licence will prevail with respect of the Third-Party Components.
- We, not the Third-Party Components provider, are responsible for the supply. The Third-Party Components provider and its licensors provide no warranties, support or indemnities in respect of the Third-Party Components.
- Services. We may change or discontinue any of the Services from time to time, subject to any SLA we have agreed with you.
- Critical changes. We may make changes referred to in clause 3.1 without notice and despite any SLA to:
- address or avoid a security or Intellectual Property risk to us or the Services or Materials;
- avoid any violation of any Law; or
- maintain the commercial viability, security and availability of the Services or Materials.
- Service Level Agreements. We may change, discontinue or add Service Level Agreements from time to time in accordance with clause 17.
Data security and storage.
- Data security. Without limiting clause 15 or your obligations under clause 6, we will implement reasonable measures designed to help you secure Your Content against unauthorised access, interference, modification, loss, or disclosure.
- Data region. Where we allow you to select from a number of available Regions, you may choose the Region in which Your Content will be processed and stored as part of the Services. You consent to the storage of Your Content in, and transfer of Your Content into, the Region you have selected. To provide billing, administration and support services, we may use and process your Account Information in the Region you have selected and in another Region where our billing, administration and support services are located.
- Data access. We will not access, use or disclose Your Content except as is necessary or required to:
- maintain or provide the Services and Materials;
- comply with the Law or legal processes, or to exercise, establish or defend our legal rights; or
- mitigate potential negative implications of a disaster or security incident (as determined by us) which may include transfer of your data to a different Region.
- Legally requested disclosure. We will not disclose Your Content or Account Information except as necessary to comply with the Law or legal processes, or to exercise, establish or defend our legal rights. If we are allowed to, we will notify you of any request or proposal to disclose your information.
Data use and privacy.
- Data Processing Terms. Depending on the location of your End Users and other individuals whose personal information will be collected, used, stored, transferred, processed or disclosed as a result of you using or accessing the Services or Materials, our Data Processing Terms may apply.
- Anonymised statistical data. When you use our Services, we may create anonymised statistical data from your data and usage of our Services, including through aggregation. Once anonymised, we may use it for our own purposes, such as to provide and improve our Services, to identify any unacceptable use of our Services, to develop new services or product offerings, to identify business trends, and for other uses we communicate to you.
- Data breach notifications. If we think there has been unauthorised access to, or disclosure of, personal information inside your Account, we will let you know and endeavour to give you information about what happened. Depending on the nature of the unauthorised access or disclosure, and the location of those affected, you may be required to assess whether the unauthorised access or disclosure must be reported to those affected and/or a relevant authority. We will rely on you to make this decision, because you will have the most knowledge about the personal information stored in your Account.
- Your accounts. Except to the extent caused by our breach of this Agreement:
- you are responsible for all activities that occur under your Account, regardless of whether the activities are authorised by you or undertaken by you, your employees or a third party (including your contractors, agents or End Users); and
- we and our related companies are not responsible for unauthorised access, interference or modification to your Account, or any unauthorised access, modification, loss or disclosure of Your Content or personal information or other data in your Account.
- Your Content and use of the Services. You must ensure that Your Content, your, and your End Users’ use of Your Content, Services and Materials comply with this Agreement, all applicable Laws and all restrictions described in the MATTR Content and on the Site, and any other policy or terms referenced in or incorporated into this Agreement. You are solely responsible for the development, content, operation, maintenance, and use of Your Content.
- Securing and protecting Your Content. Except to the extent we have agreed in writing or expressly committed offered as part of the Services, you are responsible for:
- properly configuring and using the Services and Materials; and
- taking reasonable and appropriate action to secure, protect and backup your Account and Your Content in a manner that will provide appropriate security and protection (which might include use of encryption to protect Your Content) from unauthorised access, interference, modification, loss or disclosure and routinely archiving Your Content.
- Account log-In details and private keys. Account log-in details and private keys generated by the Services are for your internal use only. You are responsible for protecting them against unauthorised use or disclosure and you must not sell, transfer or sublicense them, except:
- to the extent that we otherwise permit in writing (which we may permit subject to conditions); and
- that you may disclose your private key to your employees, agents and contractors performing work on your behalf.
- End Users. You are responsible for your End Users’ use of Your Content, the Services and the Materials. You must ensure all End Users comply with the terms of this Agreement and agree to terms that are consistent with this Agreement. We do not have to provide any support or services to End Users unless we have a separate agreement with you or them for the provision of such support or services or are required to support them by Law (e.g. with access to personal information).
- Overview. You must not, and must ensure that End Users will not, use the Services or Materials in any manner or for any purpose other than as expressly permitted by this Agreement. The examples described in this clause are not exhaustive. If you do not comply, and ensure your End Users comply, with this clause, we may suspend or terminate your access to and use of the Services in accordance with clauses 10 or 12 as appropriate.
- Illegal, harmful, or offensive use or content. You must not use, or encourage, promote, facilitate or instruct others to use, the Services or Materials in a manner that is illegal, harmful, fraudulent, offensive or that infringes on the right of any person, or to transmit, store, display, distribute or otherwise make available content that we consider to be illegal, harmful, fraudulent, or offensive.
- Malware. You must not use the Services or Materials to host or distribute any Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data (including viruses, Trojan horses, worms, time bombs, cancelbots and other malware).
- Unauthorised access. You must not access or use the Services or Materials to threaten, attempt to, or engage in conduct that would violate the security or integrity of (including though a malicious act), or otherwise gain unauthorised access to, any communication, network, computer or communications system, software application, or network or computing device.
- Network interference. You must not threaten, attempt, or engage in, conduct that is likely to interfere with, pose a security risk to, or adversely impact our systems, Services, Materials or Site, including the Content of our customers and their use of our Services, Materials or Site. For clarity, this includes making network connections to any computer system or network (unless you have permission to do so), monitoring or crawling systems or networks in a way that impairs or disrupts them, denial of service attacks, intentionally interfering with any computer system or network, or using any means to avoid usage limitations and restrictions placed on the Services, Materials, Site or any other computer system or network.
- License restrictions. You must not breach the licence restrictions set out in clause 13.4.
- Monitoring and enforcement. We may, but are not obliged to, investigate any violation of this clause or any other misuse of the Services or Materials. We may report any activity that we suspect violates any Law to law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing Account Information. We also may cooperate with law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this clause.
Fees and payment.
- Fees. We calculate and charge or invoice Fees Monthly or as otherwise agreed. You must pay us the Fees for use of the Services and Materials by the due date for payment and using one of the payment methods we have approved for your Account. You must pay all Fees payable under this Agreement without any set-off, counterclaim, deduction or other withholding. We may charge you interest at the Overdue Interest Rate on unpaid Fees from the date such unpaid Fees became due until the date payment is received into our account in cleared funds. However, if the Overdue Interest Rate exceeds the maximum permitted legal interest rate, the interest chargeable will be reduced to reflect the maximum permitted legal interest rate.
- Changes to Fees. Fees and charges for new Services, Materials or service features will be effective when we post updated Fees on the Site or notify you of the Fees, or such other date as we expressly state. We may increase or add new Fees for existing Services and Materials at any time by giving you at least 30 days’ prior notice.
- Fees exclusive of Taxes. Our Fees exclude Goods and Services Taxes and all other Taxes. If we are liable for any Goods and Services Taxes or any other Tax in respect of the provision of the Services or Materials or any other supply we make under this Agreement, you will pay us, in addition to and at the same as our Fees, an amount equal to the amount of such Tax, subject to receipt of a tax invoice (if applicable).
- Withholding Tax. If:
- you are required by Law to make any deduction or withholding from any amount payable to us under this Agreement; or
- we are required by Law to pay any Tax in relation to any amount receivable by us under this Agreement,
you must pay to us such additional amounts as are necessary so that, after making the deduction, withholding or payment, the net amount received and retained by us is equal to the amount we would have received and retained had no such deduction, withholding or payment been made.
- Information. If you deduct or withhold any amount from a payment to us under clause 9.2, you will, at our request, provide us with reasonable evidence of payment of the deduction or withholding to the relevant tax authority.
- General. We may suspend your right to access or use any or all Services and Materials immediately upon notice to you to the extent that we determine:
- your or your End User’s use of the Services or Materials: (i) is in breach of clauses 5, 6, or 7; (ii) could subject us, our related companies, or any third party to liability; (iii) could be fraudulent; or (iv) is prohibited under clause 19.6;
- you are in breach of this Agreement;
- you are in breach of your payment obligations under clause 8 in respect of any Service or Materials; or
- you have ceased to operate in the ordinary course of business, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any insolvency, bankruptcy, reorganisation, liquidation, dissolution or similar proceeding.
- Effect of suspension. If we suspend your right to access or use any or all Services or Materials:
- you remain responsible for all Fees you incur during the period of suspension; and
- you will not be entitled to any Service Credits under the Service Level Agreements for any period of suspension.
- Term. This Agreement will start on the Effective Date and will remain in effect unless terminated under clause 12.
- Termination without cause. Unless we have agreed a committed contract term with you, you can terminate this Agreement in respect of any or all Services and Materials for any reason by closing your account for the relevant Services. To terminate in respect of all Services and Materials, you must close your account for all Services for which we provide an Account closing mechanism. We may also terminate this Agreement for any or all Services and Materials for any reason by providing you with at least 30 days’ written notice for any reason except to the extent we have agreed to a longer committed contract term with you.
- Termination for cause. Either party may terminate this Agreement in respect of any affected Services and Materials if the other party is in material breach of this Agreement and the breach remains uncured for a period of 30 days from receipt of written notice by the other party. You must close your Account for all affected Services for which we provide an account closing mechanism no later than the date notified to you.
- Immediate termination by us. We may also terminate this Agreement in respect of any or all Services and Materials immediately upon notice to you:
- to the extent we have the right to suspend under clause 10;
- if our relationship with a third-party partner who provides software or other technology we use to provide affected Services or Materials expires, terminates or requires us to change the way we provide the software or other technology as part of the Services or Materials;
- to comply with any applicable Law or legal processes; or
- if we are subject to any legal or regulatory changes that we consider make it technically or commercially burdensome for us to continue providing the affected Services or Materials to you.
- Effect of termination. Upon the Termination Date:
- except as provided in clause 12.5, all your rights under this Agreement with respect to affected Services and Materials immediately terminate;
- you remain responsible for all Fees you have incurred for affected Services and Materials up until, and including, the Termination Date and are responsible for any Fees you incur for those affected Services or Materials during the post-termination period described in clause 12.5;
- you will immediately return or, if instructed by us, destroy all Material provided in connection with affected Services which are in your possession; and
- clauses 6.1, 8, 12, 13 (except the licence granted to you in clause 13.3), 14, 15, 16, 19, and 20 will continue to apply in connection with the affected Services and Materials.
- Consequences of termination. Unless we terminate your use of the Services or Materials pursuant to clause 12.2:
- we will not take action to remove Your Content from the Services as a result of the termination for 30 days following the Termination Date; and
- we may remove Your Content from the Services any time following that 30 day period unless otherwise agreed with you in writing.
- Use after Termination Date. For any use of the Services or Materials after the Termination Date, your obligations under this Agreement will apply, and you will pay the applicable Fees in accordance with clause 8.
- Your Content. You own Your Content. When you transfer Your Content into our Services, you grant us a non-exclusive, transferable and sublicensable licence to use, copy, communicate, transmit, store, analyse, adapt and back up all transferred data to provide the Services and Materials to you and your End Users.
- Adequate rights. You represent and warrant to us that:
- you or your licensors own all right, title, and interest in and to Your Content and Feedback, including to Intellectual Property;
- you have all rights in Your Content and Feedback necessary to grant the rights contemplated by this Agreement; and
- none of Your Content or End Users’ use of Your Content or the Services, Materials or Site will violate clause 5, 6, or 7.
- Your licence to use our Services. We or our licensors own all rights, title, and interest in and to the Services, Site and Materials, including to Intellectual Property. Subject to the terms of this Agreement, we grant you a limited, revocable, non-exclusive, non-transferrable licence for the Term of this Agreement to access and use the Services and Materials solely in accordance with this Agreement, including subject to clauses 6.2 and 7. The Services and Materials are not sub-licensable except to the extent set out in applicable Service Terms or as otherwise notified to you. Except as provided in this clause 13.3, you obtain no rights under this Agreement from us, our related companies or our licensors to the Services or Materials, including any Intellectual Property.
- Licence restrictions. You must not, and must not permit End Users to, access or use the Services or Materials in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User will, or will attempt to:
- modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Content included in the Services or Materials (except to the extent Content is provided to you under a separate licence that expressly permits the creation of derivative works);
- reverse engineer, disassemble, or decompile the Services or Materials or apply any other process or procedure to derive the source code of any software included in the Services or Materials (except to the extent applicable Law doesn’t allow this restriction);
- access or use the Services or Materials in a way intended to avoid incurring fees, bypass usage limits or bypass quotas; or
- resell or sublicense the Services or Materials except with our prior written agreement. Contact us to discuss your implementation and requirements.
- MATTR Marks. You may only use the MATTR Marks with our prior written permission and in accordance with any trademark usage guidelines that we have published on the Site or otherwise notified to you.
- Feedback. You are not obliged to provide Feedback to us or our related companies. If you do so:
- we and our related companies may use, modify or develop the Feedback for any purpose without restriction and without attribution or compensation to you or any other person; and
- you irrevocably assign to us all right, title, and interest in and to the Feedback and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Feedback.
- General. You will defend, indemnify, and hold harmless us, our related companies and licensors, and each of our and their respective employees, officers, directors, and representatives from and against any third-party claim or Losses arising out of or in connection with:
- your or any End Users’ access to or use of the Services or Materials (including any activities under your Account and use by your employees, agents or contractors);
- breach of this Agreement or violation of applicable Laws by you, End Users or Your Content; or
- a dispute between you and any End User.
You will reimburse us for reasonable legal fees, as well as our employees’, contractors’ and agents’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in this clause at our then-current hourly rates.
- The Services. Subject to the limitations in this clause 14, we will defend you and your employees, officers, and directors against any third-party claim alleging that the Services infringe or misappropriate that third party’s Intellectual Property, and will pay the amount of any adverse final judgment or any settlement agreed by us.
- Your Content. Subject to the limitations in this clause 14, you will defend us, our related companies, and our and their respective employees, officers, and directors against any third-party claim alleging that any of Your Content infringes or misappropriates that third party’s Intellectual Property, and will pay the amount of any adverse final judgment or settlement agreed by you.
- Exclusions. We will have no obligations or liability to you under clause 14.2 arising out of or in connection with:
- modification of the Services or Materials by anyone other than us or our related companies;
- combination, operation or use of the Services or Materials with any other goods, software, product, data or services not provided by us; or
- your or any End User’s use of the Services or Materials after we have notified you to discontinue such use.
The remedies provided in this clause 14 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of Intellectual Property by the Services or by Your Content.
- Remediation. For any claim covered by clause 14.2 we will, at our option, either:
- procure the rights to use that portion of the Services alleged to be infringing;
- replace the alleged infringing portion of the Services with a non-infringing alternative;
- modify the alleged infringing portion of the Services to make it non-infringing; or
- terminate the allegedly infringing portion of the Services or this Agreement or both (as applicable).
- Process. The party seeking defence or indemnity under this clause 14 must:
- give the other party prompt written notice of the claim;
- not make any admission and must not purport to settle the claim without the other party’s prior written consent;
- permit the other party to control the defence and settlement of the claim; and
- reasonably cooperate with the other party (at the other party’s expense) in the defence and settlement of the claim.
- Exclusion of warranties. To the maximum extent permitted by Law, the Services are provided on an “as-is” and “as-available” basis with no warranties other than those expressly set out in this Agreement. Except to the extent prohibited by Law (or to the extent any statutory rights apply that cannot be excluded, limited or waived), we and our related companies and licensors:
- make no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding the Services or Third-Party Components; and
- disclaim all warranties, including any implied or express warranties: (i) of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or quiet enjoyment; (ii) arising out of any course of dealing or usage of trade; (iii) that the Services, Material or Third-Party Components will be uninterrupted, error free or free of harmful components; and (iv) that any Content will be secure or not otherwise lost or altered.
However, see clause 19.15.
- Limitation. Subject to clauses 16.2 and 16.3, and except for payment obligations under clause 14.2, in no case will our and our related companies’ and licensors’ aggregate liability under this Agreement exceed the amount you actually pay us under this Agreement for the Service or Materials that gave rise to the claim during the 12 months before the liability arose.
- Exclusion. We and our related companies will not be liable to you or any other person for any compensation, reimbursement, or damages:
- for loss of profits, revenues, customers, opportunities, goodwill, use, or data or for any indirect, incidental, special, consequential or exemplary damages, even if we have been advised of the possibility of such damages;
- arising out of or in connection with your inability to use the Services or Materials as a result of: (i) this Agreement or your use of or access to the Services or Materials being terminated or suspended for any reason, (ii) us discontinuing of some or all of the Services or Materials in whole or in part, or (iii) downtime or unavailability of any part of the Services or Materials, except as expressly stated in our Service Level Agreement; or
- arising out of or in connection with your inability to use the Services or Materials in connection with: (i) the cost of you procuring substitute goods or services; (ii) investments, expenditures, or commitments by you in connection with this Agreement or your use of or access to the Services or Materials; (iii) any unauthorised access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of Your Content or other data that arises out of or in connection with your acts, omissions or breach of this Agreement.
However, see clause 19.15.
- Recovery of data. Our liability for loss of or damage to Your Content is limited to taking reasonable steps to recover (if practicable) the affected data from our available backups.
- Application of Law. The exclusions and limitations set out in this clause 16 apply only to the maximum extent permitted by applicable Law. See clause 19.15.
Changing this Agreement.
- Changes. Subject to clause 17.2, we may change this Agreement from time to time by publishing an updated version of the relevant document on the Site or notifying an update to you in accordance with clause 19.10. Any such changes will come into effect 31 days after the updated version is published or notified (or the earlier of the two if the change is both published and notified). If the changes have a material detrimental impact, you may terminate this Agreement before the changes come into effect under clause 12.1.
- Service Level Agreement changes. For any changes to a Service Level Agreement, we will provide you with at least three months’ advance notice in accordance with clause 19.10. If the changes have a material detrimental impact, you may terminate this Agreement under clause 12.1 before the changes come into effect.
- Application of changes. By continuing to use the Services or Materials after the effective date of any changes to this Agreement, you agree to be bound by the modified terms. Please check the Site regularly for changes to this Agreement. The date on which we last changed each part of this Agreement is the date listed at the top of the relevant document forming part of the Agreement.
- Addressing your concerns. Most concerns can be resolved quickly and to everyone’s satisfaction by contacting our support team. If we are unable to resolve your complaint to your satisfaction (or if we haven’t been able to resolve a dispute we have with you after attempting to do so informally), you and we agree to resolve those disputes through binding arbitration in accordance with clause 18.2.
- Arbitration. Any dispute or claim arising out of or in connection with this Agreement or the Services will be resolved by binding arbitration using a sole arbitrator under the Arbitration Act 1996 (NZ). The arbitration will be conducted in Auckland, New Zealand using the English language in accordance with clause 19.5. If the parties cannot agree on an arbitrator within five Working Days of a party issuing an arbitration notice, the arbitrator will be appointed at the request of either party by the president for the time being of the New Zealand Law Society or his or her nominee. Clauses 3 (Powers relating to conduct of arbitral proceedings) and 6 (Costs and expenses of an arbitration) of the Second Schedule of the Arbitration Act 1996 will apply (but no other clauses in the Second Schedule will apply).
- Urgent relief. Nothing in this Agreement will prevent either party seeking or obtaining any order or relief by way of injunction or declaration or other equitable or statutory remedy against the other party where that party believes such order or relief is necessary for the urgent protection of its rights or property, including Intellectual Property.
- Conduct of claims and litigation. We and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we and you waive any right to a jury trial.
- Assignment. You must not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, except with our prior written consent. Any assignment or transfer in violation of this clause 19 will be void. We may novate, assign or otherwise transfer this Agreement without your consent:
- in connection with a merger, acquisition or sale of all or substantially all of our assets; or
- to any related company or as part of a corporate reorganisation,
and in the event of a novation or transfer, effective upon the novation or transfer, the new party nominated by us is deemed substituted for us as a party to this Agreement and we are fully released from all of our obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.
- Entire agreement. This Agreement is the entire agreement between you and us regarding its subject matter. It supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, (whether written or verbal) regarding the subject matter of this Agreement. We will not be bound by any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement, and whether or not they are prior to, contemporaneous with, or subsequent to this Agreement) including terms contained in your purchase orders, receipts, confirmations, RFx documentation and other standard terms.
- Priority. Where there is any conflict or ambiguity between this document and any other document, Service Terms or Service Level Agreement forming part of this Agreement, the following descending order of priority will apply:
- applicable Service Terms;
- this Customer Agreement document;
- applicable Service Level Agreements.
- Force majeure. We and our related companies will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labour disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications or cloud infrastructure failures, earthquake, storms or other elements of nature, epidemics, pandemics, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
- Governing Law and jurisdiction. This Agreement will be governed by the Laws of New Zealand and you consent to the non-exclusive jurisdiction of the New Zealand courts. You must not object to the transfer of any proceedings to New Zealand courts on any basis, including inconvenience. The parties agree that United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Export control. Each party will comply with all applicable export control laws and regulations. You are solely responsible for your compliance with applicable laws in relation to how you choose to use the Services, including the transfer and processing of Your Content, the provision of Your Content to End Users, and the Region in which any of the foregoing occur. You must not use our Services in violation of any export or trade embargo laws that apply to you. You represent and warrant that you are not in a jurisdiction subject to sanctions that would affect our provision of the Services or Material or otherwise designated on any list of prohibited or restricted parties maintained by the United Nations Security Council, the European Union or its Member States, the United States, New Zealand or other applicable government authority.
- Our relationship with you. We and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective related companies, or personnel is an agent of the other for any purpose or has the authority to bind the other.
- Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.
- Confidentiality and publicity. You may use MATTR Confidential Information only in connection with your use of the Services and Materials as permitted under this Agreement. You must not disclose MATTR Confidential Information without our written agreement. You must take all reasonable measures to avoid disclosure, dissemination or unauthorised use of MATTR Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You must not issue any press release or make any other public communication with respect to us, this Agreement or the Services or Materials except with our prior written approval.
- Giving you notices. We may provide notice to you under this Agreement by sending a message to the email address associated with your account, or by posting a visible notice on the Site or through the Services. Notices we provide by posting on the Site will be effective upon posting, and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email and whether or not we receive a “bounce-back” or other notice of non-delivery.
- Giving us notices. Any notice you send to us must be sent to firstname.lastname@example.org and will be effective upon receipt into that inbox, provided that if received after 5 PM (NZST or NZDT, as applicable) on a Working Day, they will be deemed received at 9 AM (NZST or NZDT, as applicable) on the next Working Day.
- Third-Party beneficiaries. The terms set out in clause 14 relating to indemnified third parties and the references in this Agreement to our related companies and licensors are expressed for the benefit of that person for the purposes of the Contract and Commercial Law Act 2017 (Part 2, Subpart 1). Otherwise, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
- No waiver. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision or any other provision at a later time. All waivers by us must be in writing to be effective.
- Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to give effect to the intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement, but the rest of the Agreement will remain in full force and effect.
- Consumer Laws. In some places, like New Zealand and Australia, there may be non-excludable warranties, guarantees or other rights provided by Law (Non-excludable Consumer Guarantees). They still apply – these terms do not exclude, restrict or modify them. Except for such Non-excludable Consumer Guarantees and other rights you have that we cannot exclude, we expressly exclude all warranties and guarantees and we are only bound by the express terms set out in this Agreement. Our liability for breach of a Non-excludable Consumer Guarantee is limited, at our option (and subject to clause 16.1), to either re-performing, refunding, replacing or paying the cost of replacing the relevant service (unless the Non-excludable Consumer Guarantee says otherwise).
Definitions and interpretation.
- Definitions. In this Agreement, the following terms will have the meaning set out below:
Account means the account, and associated log-in details that you’ll need to use in order to access the Services.
Account Information means:
- information about you that you provide to us in connection with the creation or administration of your Account. For example, names, usernames, phone numbers, email addresses and billing information associated with your Account; and
- usage data related to your Account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.
Agreement means this Customer Agreement document, together with the applicable Service Terms and Service Level Agreements.
API means an application programming interface.
Content means software (including machine images), data, metadata, documents, text, audio, video, images and other materials.
Data Processing Terms means the document with that title which we provide to you or make avaliable on the Site or through the Service, as may be updated by us from time to time.
Documentation means the user guides and admin guides (in each case exclusive of content referenced via hyperlink) for the Services located at https://learn.mattr.global (or any updated URL designated by us), as such user guides and admin guides may be updated by us from time to time.
Effective Date means the date when you accept the Customer Agreement, or otherwise access or use any of the Services or Materials, whichever is earlier.
End User means your customers and any other individual or entity that directly or indirectly:
- accesses or uses Your Content; or
- otherwise accesses, uses or benefits from the Services or Materials under your Account or through services you provide to them.
Feedback means all ideas, suggestions and other feedback that you provide to us.
Fees means all amounts owing under this Agreement for the Services and Materials, as described on the Site or otherwise notified by us to you at the time you order those Services and Materials.
Goods and Services Taxes includes New Zealand goods and services Tax chargeable in accordance with the Goods and Services Tax Act 1985 and any goods and services Tax, value added Tax or sales Tax imposed under the laws of any other jurisdiction.
Intellectual Property means all intellectual property rights, including:
- patents, designs, trademarks, service marks, copyright material or works, registered designs, database rights, domain name rights, trade names, symbols and logos (whether registered or unregistered); and
- all formulae, methods, plans, data, drawings, specifications, characteristics, algorithms, source and object code, equipment, designs, inventions, discoveries, improvements, know-how, software, trade secrets and other proprietary information.
Law or Laws means:
- any statute, regulation, bylaw, ordinance or subordinate legislation;
- any binding court order, judgment or decree;
- any binding order of any other governmental body; and
- any applicable industry code, convention, policy or standard enforceable by law.
Losses means any claims, damages, losses, liabilities, costs, and expenses (including reasonable lawyers’ fees).
Material means the MATTR Content and the MATTR Marks. Material does not include any Third-Party Components.
MATTR Confidential Information means all non-public information disclosed by us, our related companies, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. MATTR Confidential Information includes:
- non-public information relating to our or our related companies or business partners’ goods, services, software, technology, processes, systems, customers, business plans, promotional and marketing activities, finances and other business affairs;
- third-party information that we are obliged to keep confidential; and
- the nature, content and existence of any discussions or negotiations between you and us or our related companies.
- is or becomes publicly available without breach of this Agreement;
- can be shown by documentation to have been known to you at the time of your receipt from us;
- is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or
- can be shown by documentation to have been independently developed by you without reference to the MATTR Confidential Information.
MATTR Content means Content we or any of our related companies make available in connection with the Services or on the Site to allow access to and use of the Services, including APIs, WSDLs, SDKs, Documentation, sample code, software libraries, command line tools, proofs of concept, templates and other related technology (including any of the foregoing that are provided by our personnel). MATTR Content does not include the Services or Third-Party Components.
MATTR Marks means any trademarks, service marks, service or trade names, domain names, logos, and other designations of us and our related companies that we may make available to you in connection with this Agreement.
Month or Monthly means the period from a day of one month to the corresponding day of the next month, or if such does not exist, the last day of the next month.
Overdue Interest Rate means the “Business Overdraft Base Rate” of ANZ Bank New Zealand Limited (Base Rate) plus 1.5% per annum (or, if the Base Rate ceases to be published, such alternative rate as notified by us from time to time).
Region means the geographical location where we will store and process Your Content as part of the Services. We may also enable multiple geographic locations and allow you to select from such locations for the storage and processing of Your Content.
Service means our platform, software offerings, or capabilities and any other services made available by us or our related companies under this Agreement (however accessed and including their presentation on the Site).
Service Terms means, in respect of a Service, the terms and conditions that apply to your use of that Service as notified by us to you or published on our Site.
Service Credit means the dollar credit that we may credit back to an eligible Account in accordance with a Service Level Agreement.
Service Level Agreement means a service level agreement for the relevant Services, which we provide to you or otherwise set out on the Site (or any updated URL designated by us) as may be updated by us from time to time.
Site means our website at mattr.global and learn.mattr.global as may be updated by us from time to time, or any derivative, related or new site on which we offer our Services or you can access our Materials.
Tax or Taxes includes any present or future tax, levy, impost, duty, rate, charge or fee imposed or levied by any government authority, whether in New Zealand or elsewhere, together with any related interest, penalties or charges, but does not include a tax imposed on or calculated by reference to overall net income.
Term means the term of this Agreement, as set out in clause 11.
Termination Date means the effective date of termination provided in accordance with clause 12.
Third-Party Components has the meaning set out in clause 2.2.
Working Days means any day other than Saturday, Sunday or a public holiday observed in Auckland, New Zealand.
Your Content means Content that you or your End Users transfer to us for processing, storage or use in connection with the Services under your Account and any computational results that you or any End User derive from the foregoing through their use of the Services. For clarity, Your Content includes Content that you or any End User stores with us in connection with our Services and Materials. Your Content does not include Account Information.
Your Systems has the meaning given in clause 2.1.
- Interpretation. In this Agreement:
- a reference to any document, enactment or regulation includes a reference to that document as amended or replaced from time to time;
- headings appear as a matter of convenience and do not affect the meaning or construction of the Agreement;
- the word “includes” or “including” and similar terms do not limit the meaning of preceding words;
- a reference to any monetary amount is a reference to United States dollars;
- a reference to a person includes a corporation sole and also a body of persons, whether corporate or unincorporated;
- the singular includes the plural and vice versa;
- words importing one gender include the other genders; and
- any rule of law or legal decision that would require interpretation of this Agreement against the party that drafted it is not applicable and is hereby waived.