Board Evaluation Service – Terms of Service

1             Application of these Terms

These terms and conditions (‘Terms’) apply to the use of the Service known as the Board Evaluation Service as further described in clause 2 (‘Service’) which is made available by the Institute of Directors in New Zealand (Inc), an incorporated society with New Zealand Business Number 9429042870364 (‘we’, ‘us’, ‘our’), through the URL https://www.iod.org.nz/services-for-boards/board-evaluations/ or any other URL through which we make the Service available (‘Website’), by any person who uses the Service (in these Terms, referred to as ‘you’, ‘your’).

2             The Service

2.1          The ‘tier’ of Service you elect to purchase from us is as described on the Website, and includes the establishment and conduct of an online survey of members of your governance group for the purposes of reporting to you on the performance of that governance group through reports which are tailored depending on which ‘tier’ of Service you purchase from us.

2.2          In providing you with the Service:

a        we do not collect information from survey participants as your agent or otherwise on your behalf;

b        you have no rights to receive or otherwise the raw information that we collect from survey participants other than to the extent such information is incorporated in the report we produce and deliver to you in connection with the Service.

2.3          You must only use the Service and any report that we deliver in connection with the Service (including the findings of any report) for your own internal business purposes.

2.4          You must comply with any policies that we make available on the Website in connection with the Service.

2.5          You must not:

a        reverse engineer, disassemble, modify, decompile, translate, or make any derivative works from the Service, or attempt to do so;

b        gain access to the Service or any of its functionality (including any data or other information made available through the Service) which you do not have our authority to access, or attempt to do so;

c        copy, alter, modify, transmit or reproduce the Service or any of its functionality, or attempt to do;

d        prepare any translations, modifications or derivative works of the Service or any part of it, or attempt to do so;

e        use the Service (including by uploading any information through the Service) in a way that:

i         infringes applicable law or causes us to infringe applicable law;

ii        infringes any person’s rights;

f         upload any information through the Service which is obscene, pornographic, threatening, abusive, offensive, hateful or defamatory to any person or organisation.

2.6          While we will endeavour to make the Service available to you on an uninterrupted and error-free basis, we do not warrant that:

a        the Service will be available at all times;

b        the Service will operate without error.

2.7          We give no warranties and make no representations (including any statutory warranties other than those which we are not permitted to exclude under applicable law, and any other warranties that might be implied) in connection with the Service or your use of the Service, other than the warranties and representations set out in these Terms.

2.8          Without limiting our rights under clause 6, we may from time-to-time, and for any reason, suspend access to the Service (either to you, or to all users of the Service):

a        for the purposes of undergoing maintenance (whether scheduled or otherwise) to the Service or systems underpinning the Service;

b        if required to do so by a third party on whom we rely for the provision of the Service;

c        if we reasonably consider it is necessary to do so in order to mitigate security risks arising in connection with the use of the Service by you or any other person.

2.9          We will use reasonable endeavours to give you prior notice of any suspension of access to the Service for scheduled maintenance, but may otherwise suspend access under clause 2.8 without notice.

3             Fees, expenses and payment

3.1          You must pay the fee applicable to the ‘tier’ of Service you elect to purchase from us at the rate set out on the Website.

3.2          Unless we otherwise agree, you must pay the fee at the time of subscription through the functionality offered by the Website.

3.3          If we agree to invoice you for the fee other than at the time of subscription, you must pay that invoice by the 20th of the month following the month in which you receive the invoice.

3.4          If you do not pay any amount payable when due:

a        we may immediately suspend your access to the Service;

b        we may charge interest on the overdue amount at a rate equal to our current business overdraft rate plus 5% per annum, from the due date of payment until the date on which you pay us the overdue amount in full; and

c        we may recover all costs we incur, including solicitors’ fees, in relation to the recovery of the overdue amount.

4             Access accounts

4.1          We may establish an access account for you (through the establishment of personal credentials, including a one-click personalised link, login and password, or two-factor authentication) which facilitates your access to the Service.

4.2          You will be solely liable for any actions undertaken on or in respect of the Service using your access account.

4.3          You must:

a        keep secure and confidential the details of each access account;

b        not allow any other person to use the Service in reliance of your access account.

4.4          We may revoke or suspend your access account if we consider that it is being misused or has been compromised, or we otherwise consider the revocation or suspension reasonably necessary to protect the security and integrity of the Service.

4.5          We may monitor and log your use and activity of the Service through your access account.

5             Liability

5.1          Without limiting clause 5.2, we will not be liable to you whether in contract, tort (including negligence), breach of statutory duty or otherwise, under or in connection with these Terms and/or your use of the Service (including any inability to use the Service), for any of the following:

a        any loss or damage caused by or arising from any content which is generated by a survey participant;

b        any loss or damage arising from any failure of systems, hardware, software, communications equipment, networks or other equipment used by you to access the Service;

c        any loss or damage caused by or arising from a distributed denial-of-service attack, viruses, or other technologically harmful material that may infect or corrupt your computer hardware, software, data or devices arising from your use of the Service;

d        any loss of the use of money, loss of anticipated savings, loss of bargain, loss of revenue, loss or corruption of data, loss of opportunity, loss of business, loss of profit, loss of goodwill or loss of reputation (in each case, whether direct or indirect);

e        any indirect, special or consequential loss or damage regardless of how such loss or damage is caused; and/or

f         any loss or damage arising as a result of any third party bringing a claim in respect of any of the above types of loss.

5.2          Without limiting clause 5.1, our aggregate liability to you due to, under and/or arising out of or in connection with these Terms and/or your use of the Service (including any inability to use the Service) in contract, tort (including negligence), breach of statutory duty or otherwise, in respect of any and all claims, will not exceed the greater of:

a        the amount actually paid by you for the Service; and

b        $100.

6             Termination

We may terminate your access to the Service immediately by suspending or revoking your Access Account, without notice to you:

a        if we reasonably consider that you have breached any of your material obligations under these Terms; or

b        if you have failed to pay any fees payable to us when due.

7             Intellectual Property

7.1          We (or our licensors) will own, or will retain ownership of, all intellectual property rights throughout the world, including rights in respect of copyright, trade marks, trade secrets and know-how (in each case, whether registered or unregistered) (‘Intellectual Property Rights’) in the Service, any reports that we deliver in connection with the Service, and any information that we collect from survey participants.

7.2          Without prejudice to clause 7.1, we hereby grant to you a non-exclusive, perpetual, royalty-free licence of our Intellectual Property Rights solely to the extent necessary to enable you to use the Service and benefit from the reports we deliver to you.

8             Notices

8.1          Any notice that we are required to, or may, give to you under to these Terms will be deemed to be validly given if sent by email to your contact details as notified to us through the Service or as notified to us in any other manner, or notified to you directly through the messaging or notification function of the Service.

8.2          If you are required to, or may give notice to us pursuant to these Terms, you must send that notice by email to governanceservices@iod.org.nz.

8.3          Notices given by us in accordance with clause 8.1 or by you in accordance with clause 8.2, will be deemed to be received at the time of transmission by the sender, unless the sender was put on notice that the transmission was unsuccessful, but if the time and day on which a notice would be deemed to have been received in accordance with the above is not between 9:00am and 5:00pm on a regular business day in Wellington, New Zealand, then the notice will be deemed to be received at 9:00am on the next business day.

9             General

9.1          These Terms contain the entire agreement between you and us with respect to your access to the Service, set out the only conduct relied on by you and us, and supersede all earlier conduct and prior agreements, representations and understandings between you and us in connection with your access to the Service.

9.2          Nothing in these Terms is intended to confer a benefit upon any person other than you or us (including any participant in the Survey), whether under Part 2 of the Contract and Commercial Law Act 2017 or otherwise.

9.3          No exercise or failure to exercise or delay in exercising any right or remedy by us will constitute a waiver by us of that or any other right or remedy available to us.

9.4          You may not assign, charge, encumber, or otherwise deal with any rights and obligations under these Terms or in respect of the Service, or purport to do so.

9.5          If any provision of these Terms or their application to you or to any circumstance is or becomes invalid or unenforceable to any extent, the remainder of these Terms and their application will not be affected and will remain enforceable to the greatest extent permitted by law.

9.6          Our rights under these Terms are cumulative and are not exclusive of any other rights and remedies available to us.

9.7          These Terms will be construed and take effect as a contract made in New Zealand and will be governed by New Zealand law.

9.8          You submit to the non-exclusive jurisdiction of the Courts of New Zealand.