If you are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the full legal 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 are using the Services or Application for or on behalf of a company or other legal entity (and not entering into this Agreement on their behalf) then you are nevertheless individually bound by this Agreement, even if that company or other entity has a separate agreement with us.
If you do not agree to this Agreement, or do not have the authority mentioned above, you are not permitted to use the Services or the Application.
If you have created an account for the Services then you are an “Account Owner”. If you have been invited or authorised by or on behalf of an Account Owner to use the Services and/or Application under their account then you are an “Authorised User” and that Account Owner is “your Account Owner”. Similarly, if you are an Account Owner, the Authorised Users under your account are “your Authorised Users”.
Some of the provisions in this Agreement are stated to apply to the Account Owner or Authorised User only, and the rest of the provisions apply whether you are an Account Owner or Authorised User. To avoid any doubt, you can be both an Account Owner and an Authorised User for the purpose of this Agreement. However, if you are neither then you are not permitted to use the Services or Application.
Without limiting any agreement we have with an Authorised User, if you are an Account Owner, you are responsible for:
Subject to the other provisions of this Agreement, when we provide the Services to you we will endeavour to:
You must not interact with the Services or Application when driving or in any location that could be unsafe to you or others. You are responsible for ensuring that you drive in a careful and safe manner, observe all road safety and traffic laws and use your own personal judgement when driving. You should also make sure that you locate any device you use in relation to the Application in a safe place that does not interfere with your driving or any of the safety features of your vehicle (such as an airbag).
Any information, data (including map data) and other content made available to you via the Services or Application (“Content”) may be inaccurate, incomplete or outdated. The reasons for this include the passage of time, changing circumstances, asset movement and the nature and limitations of collecting geographic and location related data. Your use and interpretation of any Content is your responsibility (not ours) and is at your own risk. It is also your responsibility to make sure that you have obtained all the necessary rights and permissions to use any Content (for example, if you want to use Content uploaded by an Authorised User).
We do not endorse, approve or pre-screen Content and, to the fullest extent permitted by law, we provide no promises, warranties or guarantees in relation to Content, including as to its adequacy, accuracy or completeness or its freedom from anything harmful or inappropriate. You agree that we are not responsible or liable in any way for any Content or the consequences of you using or relying on any Content.
So long as you comply with this Agreement, we grant you a non-exclusive and non-transferable licence to:
If you are an Account Owner, the licence above is subject to this Agreement and is limited by the type of plan that you have with us. For example, that plan may only permit a certain number of Authorised Users to access and use the Services under your account.
If you are an Authorised User then the licence above is subject to this Agreement and is limited by the type of plan that your Account Owner has with us. Your Account Owner may also use settings within the Services to limit your use of the Application and Services (including to stop you from accessing the Services).
We do not own any of the information, data, files and other content that you upload to or provide to the Services (“Your Data”). You grant to us a worldwide, non-exclusive and sub-licensable right to store, use, modify, adapt, prepare derivative works from, reproduce, publish, display, distribute and communicate Your Data for the purpose of providing, operating, supporting and improving the Services and Application. You also acknowledge and agree that Your Data may be available to and used by, as applicable: (a) if you are an Authorised User, your Account Owner or any Authorised Users that have the same Account Owner as you; or (b) if you are an Account Owner, any of your Authorised Users. You represent and warrant to us that you have the right and authority to grant these rights in this clause and Your Data will not violate this Agreement.
You must make sure that Your Data is free of anything illegal or that may be offensive, any viruses and anything else that infringes a third party’s rights or could have a detrimental affect on the Services, Application or us (including our reputation). We reserve the right (but have no obligation to) remove or edit any of Your Data that we consider, in our sole discretion, is contrary to this Agreement. You also acknowledge and agree that we may disclose Your Data if we in good faith consider that such disclosure is required to comply with a legal process or requirement, enforce this Agreement or respond to any claims by a third party.
If this Agreement ends for any reason then we will, for at least 3 months from the end date, endeavour to provide a facility for you to download Your Data from the Services (in a format that we determine). You can also ask us to delete Your Data and we will do so within a reasonable period.
The Services or Application may use, incorporate or link to software, data, websites or other products or services that are licensed, sold, provided or otherwise made available by a third party (“Third Party Products”). You agree that your use of any Third Party Products is at your own risk and is governed by any separate terms (including privacy policies) that we have notified you of, as those terms may be updated from time to time (“Third Party Terms”). We assume no liability or responsibility whatsoever for any Third Party Products. Some Third Party Terms apply to open source software, and where those Third Party Terms are expressly stated to supersede this Agreement they will do so to the limited extent necessary, and then only in relation to the applicable open source software.
This Agreement is likely to change over time and it is your responsibility to ensure that you are familiar with the most recent version of this Agreement. Please refer to the Last Updated section at the start of these terms for when these terms were last updated. If you do not agree with any changes to the Agreement you should immediately stop using the Services and Application and end the Agreement under clause 15 (Ending the Services and this Agreement).
We may, at our sole discretion, change the whole or any part of the Services or Application at any time without notice to you. Subject to clause 10 (Changes to this Agreement), this Agreement continues to apply to any modified or updated Services or Application. Some updates to the Application may be automatically downloaded and installed onto a device. You may also not be able to use the Services until you have downloaded and installed the latest version of the Application.
This clause 12 applies if you are an Account Owner. You must pay all of the relevant subscription and other fees related to your account at the times and in the way specified by us on www.watchmygear.com. You must pay the fees for the Services and Application no matter who uses them. The fees are exclusive of all taxes and duties (including GST, if any), which are payable by you. The Services are billed monthly in advance starting on the date that you subscribe or upgrade to a paying plan. All payments are non-refundable, including if you close your account or downgrade your plan during a billing cycle. You will be billed the new rate for any upgrade or downgrade to your plan on your next billing cycle.
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 clause 15 (Ending the Services and this Agreement).
The Services and Application 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 and Application means we do not represent or warrant that they will be uninterrupted, secure, reliable, free of errors, defects or viruses or always accessible or available (including at a certain speed), that they will meet your requirements, that any 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 and Application on systems, services, data and networks that are not owned or controlled by us.
We give no warranties in relation to the Services or Application. All warranties, representations and conditions in relation to the Services and Application, 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 and Application is for the purposes of a business and, to the maximum extent permitted by law, the provisions of the Consumer Guarantees Act 1993 (and any other legislation intended to protect non-business consumers in any jurisdiction) do not apply to the Services or Application.
We or our licensors own all rights, title and interest, including all intellectual property rights (whether or not registered and anywhere in the world), in and to the Services and Application (including in any underlying software, ideas or know how) and any changes or improvements to them. Except to the extent that we specifically grant you a licence in clause 5 (Your right to use the Services and Application), we do not grant you any rights, title or interest in relation to any of the foregoing. You are also not granted any rights or interests in any of our trademarks, logos and business, product and domain names or those of our suppliers.
Except in relation to certain Third Party Products (and then only to the limited extent permitted by the applicable Third Party Terms), you acknowledge that you have no right to have access to the Application in source-code form.
You may choose to submit ideas, comments, feedback or suggestions to us in relation to the Services or Application (“Suggestions”). You acknowledge and agree that any Suggestions do not contain any confidential or proprietary information. You grant, and warrant that you have the right to grant, us a perpetual, irrevocable, worldwide, transferable, sublicensable and non-exclusive right to use, share, commercialise and otherwise exploit Suggestions in any way for any purpose, at no charge and free of any obligation to you or anyone else.
You may immediately end this Agreement at any time for any reason by closing your account (if you are an Account Owner) or otherwise telling us in writing.
We may end this Agreement for any reason by giving you at least 5 days' notice beforehand. We may also end this Agreement at any time in any of the following circumstances:
We will endeavour to notify you if we end the Agreement in the circumstances noted above.
Where we are entitled to end this Agreement we may choose to end, suspend or restrict your access and use of the Services or Application (or both of them), and we can do so without notifying you. To avoid any doubt, the exercise of those rights to end, suspend or restrict will never prevent us from exercising our rights to end the Agreement, and we can exercise the rights to suspend or restrict more than once for the same or different reasons.
When this Agreement ends for any reason:
Ending this Agreement or any of the Services does not affect clauses that are intended to survive termination (including clauses 1, 4, 6, 8, 13, 14, 15, 16, 17 and 18, which will continue to operate) or any rights or remedies that have accrued beforehand.
To the fullest extent permitted by law, we, and our suppliers, contractors, directors, employees and agents (“Our Related Parties”), will not be liable to you or any third party for any: (a) breach of security or unauthorised access to Your Data; (b) loss or damage to Your Data (or any other information or data); (c) errors, mistakes or inaccuracies in any Content; (d) loss of profit, revenue, opportunity or saving; or (e) incidental, indirect, special or consequential loss or damage.
The total aggregate liability of us and Our Related Parties (together) to you under or in connection with this Agreement or its subject matter is limited to US$500.
The limitation of liability above, and any exclusions or disclaimers of liability in this Agreement, shall apply however liability arises, whether in contract, in tort (including negligence), for breach of statutory duty or otherwise.
You fully indemnify us from and against any and all claims, proceedings, damages, losses, liabilities, costs or expenses (including legal costs on a solicitor and own client basis) arising from or connected to your use of the Services or Application (and, if you are an Account Owner, any use of the Services or Application by your Authorised Users), Your Data or your breach of this Agreement.
If at any time you or we consider that a dispute or claim has arisen in connection with this Agreement or its formation (a “Dispute”), the disputing party may give written notice to the other party of the Dispute (“Dispute Notice”). All Disputes will be resolved in accordance with this clause 17 (Disputes), although nothing in this clause prevents either party from seeking or obtaining urgent interlocutory relief.
If the Dispute has not been resolved within 20 days of the Dispute Notice (or such further time as you and we may agree in writing) then either party may refer the Dispute to arbitration by written notice to the other (“Arbitration Notice”). The arbitration will be determined by a sole arbitrator as soon as possible in Wellington, New Zealand. If the parties cannot agree on an arbitrator within 10 days of the giving of the Arbitration Notice, the arbitrator will be the President for the time being, or his or her nominee, of the Arbitrators’ and Mediators’ Institute of New Zealand Inc. The arbitration will be conducted in accordance with the Arbitration Act 1996 (excluding clauses 4 and 5 of the Second Schedule to that Act). The award in the arbitration will be final and binding.
Without limiting any of our rights or remedies, you agree:
In this Agreement, unless the context otherwise requires, words in the singular include the plural and vice versa; any examples in this Agreement, and references to "including", “for example” and similar words, are illustrative only and do not imply any limitations; any reference to a party includes that party’s successors and permitted assigns; terms defined in this Agreement have their meaning throughout this Agreement; and clause and other headings are for ease of reading only and do not affect the interpretation of this Agreement.
Any reference to www.watchmygear.com includes any pages on that site. It also includes any subdomains of that site that you are permitted to access (for example, yourcompany.watchmygear.com).
We may from time to time provide you with an updated URL to replace any URL referred to in this Agreement.
Each of our rights and/or remedies under this agreement are cumulative and do not limit any other rights or remedies provided under this Agreement or at law.
You may only transfer or assign any of your rights or obligations under this Agreement with our prior written consent. We may subcontract, transfer or assign all or any part of our rights or obligations under this Agreement without your consent.
This Agreement constitutes 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 under this Agreement may be sent to you by: (a) email or post to the address you have provided for us when signing up to the Service; or (b) using such other means as may be permitted by this Agreement (for example, by displaying a notice as part of the Services). If you are an Authorised User you also agree that anything we need to notify or tell you under this Agreement will be deemed to be received by you if we have sent it by email or post to your Account Owner. Anything you need to notify or tell us under this Agreement must be in writing and sent to email@example.com or Abletech Limited, PO Box 25346, Featherston Street, Wellington 6146, New Zealand (attention WatchMyGear). Any email will be deemed to have been received two days after it was sent unless the sender has been notified to the contrary (for example, by receiving notice of failure or delay in the delivery of an email).
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.
No agency, partnership or joint venture relationship is intended or created by this Agreement.
Any waiver by us of any part of this Agreement 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 this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect.
Except as expressly provided in this Agreement, only you and us have any benefit under this Agreement and any right to enforce this Agreement.
This Agreement is governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
The following third party products may be used for the provision of the WatchMyGear smartphone application (“Application”) and any of the services provided on or via www.watchmygear.com or the Application (“Services”):
Digital Ocean - https://www.digitalocean.com/tos
Amazon Web Services - http://aws.amazon.com/serviceterms/
Cloudmade - http://cloudmade.com/website-terms-conditions