Version dated 25 August 2015
In these Terms, “Datastar Services” means Datastar’s enterprise resource planning products and services, and any features, technologies or functionality provided by those products or services, offered by us from time to time, including www.datastar-erp.com (“Website”).
If you do not agree to any of these Terms, then you should not use the Datastar Services. All rights not expressly granted to Users in these Terms are reserved by Datastar.
We may change these Terms from time to time, and will endeavour to notify you of such changes via email or by displaying a message when you next use the Datastar Services. If you continue to use the Datastar Services, your use will be governed by the updated Terms.
From time to time, we may add, make changes to or remove altogether features or functionality of the Datastar Services. We may also decide to cease providing all or some of the Datastar Services at any time, and nothing in these Terms is to be taken as a guarantee that any Datastar Services will always be available, either in its current form or at all, or that we will support, maintain or continue to offer the Datastar Services.
3. Account information
You must be 18 years or older in order to access and use the Datastar Services. You agree to provide true, accurate, current and complete account information, and to maintain and promptly update your account information in order to ensure that it remains true, accurate, current and complete.
4. Cancellation of accounts
We can cancel or suspend your account at any time if, in our sole discretion, you have committed a material or persistent breach of these Terms or any other terms applying to your use of the Datastar Services.
You are entitled to cancel your account with Datastar at any time. You may cancel your account by following the prompts when you are logged into your account through the Website. If you cancel your account before the end of your current paid up month or year, your cancellation will take effect immediately and you will not be entitled to any refund of Fees paid in advance (unless we agree otherwise).
If your account is cancelled: (a) your account will be deactivated or deleted; (b) all of your rights granted under these Terms will immediately come to an end; and (c) all of your data and content may be deleted from our systems immediately. Your content cannot be recovered once your account is cancelled. We are not liable for any loss or damage following, or as a result of, cancellation of your account, and it is your responsibility to ensure that any content or data which you require is backed-up or replicated before cancellation.
5. Fees and taxes
The fees charged for use of the Datastar Services are set out on the Website (“Fees”) and are subject to change. We will endeavour to notify you (by email or by displaying a message when you next use the Datastar Services) at least 30 days before increasing the Fees. Fees are charged in advance on a monthly or annual basis and are non-refundable, including if you only use part of a month or year’s subscription for the Datastar Services. Unless required by law, we will not provide refunds in connection with the Datastar Services. A valid credit card number is required for paying all Fees.
If you are carrying out a free trial of the Datastar Services (as offered on the Website), the free trial will begin on the day that your account is opened and end 30 days later. If you wish to continue to use the Datastar Services at the end of the free trial period, you will need to provide valid credit card details (unless you choose to use any free Datastar Services which we may offer from time to time).
All Fees are exclusive of all taxes (other than New Zealand GST), and you indemnify and hold Datastar harmless against any claims by any tax authority for any underpayment of any sales, use, goods and services, value added or other tax or levy, and any penalties and/or interest.
6. You may upgrade or downgrade your account at any time
You may upgrade or downgrade your account (for example, from 25 Licences to 10 Licences, or from 5 Licences to 10 Licences) at any time by following the prompts when you are logged into your account.
The upgrade or downgrade will become effective immediately. If you downgrade your account, no refunds will be paid in respect of any unused portion of any higher account offering. If you upgrade your account, the balance already paid for the rest of the term will be credited to your account. We will then immediately charge your credit card for any net amount due as a result of the upgrade and your account renewal date will be reset to the next available billing day.
Downgrading your account may cause the loss of content, or features of capacity of your account. If you choose to downgrade your account, Datastar does not accept any liability for the resulting loss of data, content, features or capacity.
7. Datastar Services are provided “as is”
The Datastar Services are provided on an “as is” and “as available” basis, and your use of them is at your sole risk. We will try to promptly address (during normal business hours) all technical issues that arise in connection with the Datastar Services.
We do not warrant that: (a) the Datastar Services will meet your specific requirements; (b) the Datastar Services will be uninterrupted, timely, secure, or error-free; (c) the Datastar Services will be accurate or reliable; (d) the quality of any products, services, information, or other material purchased or obtained by you through the Datastar Services will meet your expectations; or (e) any errors in the Datastar Services will be corrected.
You acknowledge that Datastar may use third party suppliers to provide hardware, software, networking, connectivity, storage and other technology in order to provide the Datastar Services. The acts and omissions of those third party suppliers may be outside of Datastar’s control, and Datastar does not accept any liability for any loss or damage suffered as a result of any act or omission of any third party supplier.
On behalf of itself and such third party suppliers, Datastar excludes any other warranties that may be implied or otherwise apply under statute or other applicable law, to the maximum extent permitted by law.
8. Our liability is limited
To the maximum extent permitted by law, Datastar shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, business, goodwill, use, data or other intangible losses (even if Datastar has been advised of the possibility of such damages), resulting from: (a) the use or the inability to use the Service (in whole or in part) or any technical malfunctions; (b) the cost of procurement of substitute goods and services; (c) unauthorised access to, or alteration of, your communications or data; (d) statements or conduct of any third party regarding the Datastar Services; or (e) any other matter relating to the Datastar Services.
In any case, Datastar’s maximum aggregate liability under or in connection with these Terms or your use of the Datastar Services is limited to the amount of Fees paid by you in the past 12 months.
9. You are responsible for your use of the Datastar Service and you indemnify us
You are responsible for all activity that results from use of the Datastar Services through your account. You are responsible for maintaining the security of your account and password. Datastar will not be liable for any loss or damage that may result from any failure to keep User names and passwords secure.
You indemnify Datastar against all forms of liability, actions, proceedings, demands, costs, charges and expenses which Datastar may incur or suffer as a result of use of the Datastar Services through your account or as a result of your failure to comply with these Terms.
10. No malicious or illegal use
You must not: (a) use the Datastar Services in any unlawful manner, for any unlawful or fraudulent purpose, or in any manner inconsistent with these Terms; (b) infringe our intellectual property rights or those of any third party in relation to your use of the Datastar Services; (c) transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Datastar Services; (d) use the Datastar Services in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; (e) collect or harvest any information or data from the Datastar Services or our systems or attempt to decipher any transmissions to or from the servers running any Datastar Services; (f) disclose or distribute information relating to another User of the Datastar Services to any third party, or use any other User’s information for any marketing purposes unless you have that User’s express permission to do so; or (g) access or register User logins via bots or other automated methods.
11. Reasonable use policy
You agree to use the Datastar Services in a reasonable way. If we determine that your use of the Datastar Services is not reasonable or that your use is causing degraded performance of the Datastar Services for you or for other Users, we may impose limits on your use of the Datastar Services. Where possible, we will endeavour to give you at least 24 hours prior notice and request that your usage is reduced before imposing any limits.
12. Intellectual property
You agree that Datastar owns all of the intellectual property rights existing in the Datastar Services. You agree not to challenge or do anything inconsistent with such ownership. You may not publish or use Datastar’s brand, branding or logos except with Datastar’s prior written consent.
You grant Datastar a royalty-free, irrevocable, perpetual licence to use (including for commercial purposes) information and/or data collected by Datastar through your use of the Datastar Services, provided that we aggregate or anonymise that information or data before using it. Other than this right, Datastar claims no intellectual property rights in relation to the information or content you input into the Datastar Services.
You may provide us with comments, feedback or suggestions on Datastar Services, and you agree that we will be free to use, modify and incorporate such suggestions without any obligation to you.
If we don’t insist that you perform any of your obligations under these Terms, or if we do not immediately enforce our rights against you, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations.
The Datastar Services are provided for use in business, so you are not a consumer. To the maximum extent permitted by law, any statutory or other consumer protection provisions (including in the Consumer Guarantees Act 1993 and in the Fair Trading Act 1986) do not apply to the Datastar Services, these Terms or our relationship with you.
Each clause in these Terms operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
You are not permitted to assign, sub-licence, novate or transfer these Terms or any of the rights licensed under them.
These Terms shall be governed by New Zealand law, and you submit to the exclusive jurisdiction of the New Zealand courts for any matter or dispute arising in relation to these Terms.