DESKTOP TRACE TERMS AND CONDITIONS
By accessing the website located at www.desktoptrace.co.nz, you agree to be bound by these terms and conditions (the Terms and Conditions). Please review them carefully before acceptance.
We reserve the right to change these Terms and Conditions for legal or business reasons, and we will give you notice by posting the changes on www.desktoptrace.co.nz/termsandconditions. If we amend the Terms and Conditions to your detriment you can end your use of the Desktop Trace Service at any time.
Agreement means these Terms and Conditions and any specific terms applicable to the Desktop Trace Service, as amended from time to time.
API means an Application Programming Interface.
Confidential Information means any information exchanged between us and you in relation to the terms of the Agreement; any documentation or information provided for the purposes of providing the Desktop Trace Service; information disclosed on the basis it is confidential or information which might reasonably be expected to be confidential in nature, whether in writing, electronically or orally, but does not include information which:
a) is, or becomes, publicly available other than through a breach of these Terms and Conditions;
b) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
c) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
d) is independently developed by the receiving party.
Customer means the person purchasing access to the Desktop Trace Service in accordance with these Terms and Conditions.
Desktop Trace, us or we means Desktop Investigations Limited trading as Desktop Trace.
Desktop Trace Service means the web-based software application provided by Desktop Trace to you via the Website (and includes the Website) through which information from various sources may be located, retrieved and collated.
Fees has the meaning set out in clause 10.
Force Majeure Event means:
e) acts of God, fire, flood, war, acts of terrorism, riot, civil commotion, governmental actions, labour disputes and any similar events beyond the reasonable control of the non-performing party;
f) any situation where Desktop Trace is legally unable to perform its obligations, including due to an injunction or other similar court order; and
g) any situation where Desktop Trace is unable to perform its obligations due to a Third-Party Provider denying the Desktop Trace Service access to that Third-party Database.
GST means Goods and Services Tax in accordance with the Goods and Services Tax Act 1985
Intellectual Property Right means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how, invention, circuit layout, database, business process or method, trade secret and all or any other intellectual or industrial property right anywhere in the world, whether or not registered and includes any right to apply for registration with respect to the foregoing.
Report means a report generated by the Desktop Trace Service for you in accordance with the criteria specified by you and includes the information collated in the report.
Subscription means your right to access the Desktop Trace Service in accordance with these Terms and Condition in return for payment of the relevant monthly Fee.
Third-Party Database means a third-party database searched by the Desktop Trace Service for information pursuant to your instructions to the Desktop Trace Service.
Third-Party Provider means the operator of a Third-Party Database.
Third-Party Terms and Conditions means the terms and conditions governing the use of a Third-Party Database.
Transaction fee means a fee set out in the relevant pricing schedule that is a fee incurred when you elect to run a specific query and/or report and is a fee that is incurred on a per use basis.
User means an identifiable individual permitted by the Customer and set up in the Desktop Trace Service to access information services, either via the Website or the API.
Website means the internet website at the domain www.desktoptrace.co.nz operated by us.
You means the Customer and any other person accessing the Website and the Desktop Trace Service.
3. Data Protection and Privacy
3.2 While we take reasonable steps to ensure that the Desktop Trace Service is reasonably secure, you acknowledge and agree that internet transmissions are never completely private or secure. You understand that any information you post, send or share using the Desktop Trace Service may be read or intercepted by others.
3.3 Please note that where we include links in the Desktop Trace Service to the applications, website or services of third parties, we are not responsible for the privacy practices of such third parties, or the way they handle any personal information they collect about Users. Users should ensure you read their privacy policies carefully before using these third-party website or services.
3.4 In relation to information about third-parties:
a) you will comply with your obligations under the Privacy Act 2020 or any subsequent New Zealand Privacy Act.
b) you authorise us to collect personal information from your customers in accordance with our policies if we consider it necessary.
c) you will ensure that any customers are advised that you are using an external service in respect of their personal information including as required and advised by us and in accordance with any Third-Party Provider requirements.
d) you will ensure that you obtain any necessary consents in the required format to use the Desktop Trace Service from your customers and retain copies of such consent which you will provide to us within seven days of any request. We may, in our sole discretion, require you to use specific consent wording to access particular databases.
e) you confirm that you and all other individuals in respect of whom personal information is provided by you to us and all Users (including your employees, contractors and agents) consent to:
i) us being provided with the personal information, and (if applicable) collecting personal information from them;
ii) us using such personal information for the purpose of administration and operation of the Desktop Trace Service and reporting back to you (or your employer or principal) in connection with access of the Website and use of the Desktop Trace Service or as otherwise authorised by the relevant individual; and
iii) us sharing such personal information with our employees, agents and contractors and you to the extent necessary to enable us to provide the Desktop Trace Service to you and improve our operations.
f) For the purposes of this clause “individual” and “personal information” have the meaning as defined in the Privacy Act 2020.
4. Intellectual Property Rights and Licence
4.1 All Intellectual Property Rights of any nature in the Desktop Trace Service together with the underlying software code and any related documentation are owned directly either by us or by our licensors.
4.2 You will not, nor allow third parties on your behalf to:
a) make and distribute copies of the Desktop Trace Service;
b) attempt to copy, reproduce, alter, modify, reverse engineer, disassemble, decompile, transfer, exchange, or translate the Desktop Trace Service; or
c) create derivative works of the Desktop Trace Service of any kind whatsoever.
4.3 We hereby grant you a worldwide, non-exclusive, royalty-free revocable licence to use the Desktop Trace Service in accordance with these Terms and Conditions.
5. General Conditions of Use
5.1 You warrant that you have full authority and power to enter into and perform your obligations under the Agreement.
5.2 By creating an account with us you:
a) Consent to us conducting verification and security procedures in respect of the information provided by you during the registration process; and
b) Agree to keep your login and account details confidential and secure.
5.3 You confirm that all information and details you provide us are true, accurate and up to date in all respects and at all times. You can update and correct your personal details at any time through the account settings section of the Desktop Trace Service.
5.4 We reserve the right to amend or withdraw the Desktop Trace Service in accordance with these Terms and Conditions at any time and for any reason.
6.1 We will use reasonable efforts to make the Desktop Trace Service available at all times. However, you acknowledge the Desktop Trace Service is provided on the Internet and on mobile networks, so the quality and availability of the Desktop Trace Service may be affected by factors outside our reasonable control.
6.2 We, our group of companies, and our sub-contractors do not accept any responsibility whatsoever for unavailability of the Desktop Trace Service or any difficulty or inability to download or access content or any other communication system failure which may result in the Desktop Trace Service being unavailable.
6.3 We will not be responsible for any support or maintenance for the Desktop Trace Service.
7. Your obligations and acknowledgments
7.1 You agree:
a) that you are responsible for ensuring that you are authorised to access and use the Desktop Trace Service, the Reports and any other information you access through the Desktop Trace Service and for assessing the ongoing suitability and adequacy, compatibility and appropriateness of our services for your purposes;
b) that access to and use of the Desktop Trace Service is on an “as is, where is” basis and is at your own risk;
c) that Desktop Trace is not responsible for any adverse consequences arising out your access to or use of the Desktop Trace Service;
d) that any Report generated through the use of the Desktop Trace Service has not been prepared taking into account your particular objectives, situation or needs and that it is your sole responsibility to determine whether the Desktop Trace Service and any Reports meet your needs;
e) that the information in any Report has been collated from various sources, may not be complete and may contain inaccuracies;
f) that contents of the Website may include links to third party materials. We will not be responsible for the contents of any linked sites or liable for any direct or indirect loss or damage suffered by you from accessing, using or relying on information obtained from any linked sites or third party. The inclusion of any linked site does not imply any endorsement of it by us or any association with its operators. Desktop Trace reserves the right to prohibit links to the Website and you agree to remove or cease any link upon our request;
g) that you will comply with any Third-Party Terms and Conditions in relation to your use of a Third-Party Database through the Desktop Trace Service and the use of the information obtained through the Third-Party Database. You further agree that to the extent that the Third-Party Terms and Conditions contain restrictions relating to the use of the information in the Third-Party Database which conflict with these General Terms and Conditions the Third-Party Terms and Conditions will take precedence over these General Terms and Conditions;
h) to only access and use the Desktop Trace Service if you have been, and continue to be, authorised to do so by Desktop Trace;
i) to use the Desktop Trace Service and Reports only in accordance with the laws of New Zealand, any other laws applicable to you and in accordance with these Terms and Conditions;
j) not to incorporate the Reports or any part of a Report in a database, except with our prior consent;
k) to only use the Reports for your own internal business purposes;
l) not to reproduce or copy in any form whatsoever, or distribute to a third party, without our prior written consent any Reports or other information obtained through the Desktop Trace Service (except that nothing will prevent you from retaining a copy of any Report for your own internal purposes);
m) to ensure that all persons whom you authorise to access and use the Desktop Trace Service are trained to use the Desktop Trace Service in a lawful and appropriate manner and in accordance with all documentation and instructions provided by Desktop Trace including in particular our reasonable security, confidentiality and operational requirements as notified; and
n) to comply with the Privacy Act 2020 in respect of your customers or third parties’ personal information and as further set out in clause 3 and that you are solely responsible for any unauthorised disclosure of any personal information it has obtained through the Desktop Trace Service.
7.2 To the extent that your employees, contractors or agents acquire access to the Website and the Desktop Trace Service (or any other third party acquires access to the Website and the Desktop Trace Service through the use of usernames and passwords issued to or by you) (i.e. Users), you will:
a) procure that the Users comply with your obligations under these Terms and Conditions to the extent such obligations relate to the access of the Website or the use of the Desktop Trace System (other than the obligation to pay the Fees) or that are otherwise stated in these Terms and Conditions to apply to Users (User Obligations); and
b) be liable to Desktop Trace for the acts and omissions of such Users to the extent they breach the User Obligations, as if they were your acts or omissions.
8. Access and Security
8.1 You will ensure that all usernames and passwords issued to you by Desktop Trace, or set up by you, for the purpose of accessing and using the Desktop Trace are kept secure and confidential. To the extent that we have authorised you to set up and grant usernames and passwords to the Desktop Trace Service you must:
a) only grant usernames and passwords to Users under your control, being an API or individuals who are your employees, contractors or agents;
b) monitor and audit your use of the Desktop Trace Service (including use by your employees, contractors and agents); and
c) immediately disable a User’s username and password if:
i) you suspect any misuse of the Desktop Trace Service through the use of the username and password; or
ii) the individual to whom you issued the username and password is no longer authorised by you to access the Desktop Trace System or no longer requires access for their role or function; or
iii) a User ceases to be your employee, contactor or agent.
8.2 You will immediately notify us of any unauthorised use of any username and/or password or any other breach of security. You must keep all usernames and/or passwords confidential and ensure that usernames and/or passwords are only disclosed to the authorised recipient of such usernames and/or passwords.
8.3 You are responsible for the use of your usernames and/or passwords and all activities associated with the use of your usernames and/or passwords, including use by your API’s, employees, contractors and agents.
8.4 You confirm that the registration data you provided to Desktop Trace through the Website was at the time you provided it current, complete and accurate, and you agree to maintain and update the registration data promptly as required to keep it so.
8.5 You release us from and renounce any claim in respect of or arising from any reasonable reliance by us upon any use of your usernames and passwords, including Desktop Trace disclosing information relating to your registration and/or affairs with Desktop Trace. You agree to indemnify and hold Desktop Trace, its officers and employees harmless from any claims, actions, costs (including legal costs), or losses by Desktop Trace or any third party due to or arising out of reasonable reliance by us or any third party upon any acts carried out, requests made or information provided through the use of your usernames and passwords.
8.6 You must not:
a) attempt to undermine the security or integrity of the Desktop Trace Service or Desktop Trace’s computing systems or networks or, where the Desktop Trace Service is hosted by a third party, that third party’s computing systems and networks;
b) use, or misuse, the Desktop Trace Service in any way which may impair the functionality of the Desktop Trace Service, or impair the ability of any other user to use the Desktop Trace Service;
c) attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer system on which the Desktop Trace Service is hosted; or
d) transfer your username or password to another person and must ensure that no individual is issued with more than one username or password without Desktop Trace’s consent.
9.1 You acknowledge that information relating to the Desktop Trace Service constitute our Confidential Information.
9.2 You will not disclose or otherwise make available to any person any of our Confidential Information, or use it for your benefit, other than as expressly authorised under the Agreement, as required by law or with our prior written consent.
9.3 If it is necessary for you to disclose Confidential Information in order to comply with your legal obligations, you agree to consult with us before deciding whether to disclose Confidential Information for this purpose and act in good faith in disclosing any Confidential Information for this purpose.
9.4 Your obligations under this clause will survive the termination or expiry of the Agreement.
9.5 For the avoidance of doubt, the contents of the Agreement are confidential.
10 Fees and Collection
10.1 You agree to pay all fees, namely agreed monthly subscription fees and any applicable transaction fees as set out in the current pricing schedule. You can view your accrued Fees at any time via the Website.
10.2 We may amend our fees at any time and where possible we will provide a minimum of one month’s notice prior to any fee change.
10.3 We will invoice you weekly in arrears for the Fees incurred by you and you agree to pay the Fees within 7 days of the date of our invoice.
10.4 You may not withhold payment or make any deductions from any amount owing to us without our prior written consent.
10.5 We may charge interest on any amount owing after the due date for payment. If we determine to charge interest:
a) it will accrue at 4.0% above the prevailing bank overdraft rate applying to us as advised by us (and subject to variation from time to time);
b) it will be calculated daily on the unpaid portion of Fees owing; and
c) it will be payable in the manner specified by us.
10.6 We may also charge you for all costs and expenses incurred by us in obtaining (or attempting to obtain) a remedy for any failure to pay on the due date.
10.7 On Termination or Suspension, you will remain liable for any accrued Fees and other costs which become due for payment before or after the Termination or Suspension.
10.8 Unless specifically stated otherwise, all Fees and other costs exclude any amount payable in respect of GST, which will be paid by you in addition to the Fees and other costs.
11.1 We may terminate your use of the Desktop Trace Service at any time by giving one month’s written notice of termination to you.
11.2 You may terminate your Subscription at any time by notifying us in writing. In addition, you may log out of your account via the account settings of the Desktop Trace Service at any time. On termination we will not refund any monthly subscription fee already paid and we will send you an invoice for any remaining fees.
11.3 If you breach the Agreement, we may, at our sole discretion, terminate the Agreement and/or your right to access and use the Desktop Trace Service (Termination), or suspend your right to access and use the Desktop Trace Service for any definite or indefinite period (Suspension).
11.4 Termination or Suspension is without prejudice to the rights and obligations you or we have accrued up to and including the date of Termination.
11.5 Upon any Termination or Suspension:
a) the rights and licences granted to you will terminate; and
b) you must cease all use of the Desktop Trace Service.
11.6 The Termination or Suspension of the Agreement does not affect any of the rights or responsibilities of the parties which are intended to continue or come into force following Termination or Suspension. Without limitation, clauses 4, 9, 12 and 13 survive the Termination of the Agreement.
12. Remedies and Indemnity
12.1 If you breach these Terms then (without limiting any other remedy we may have), we may at our sole discretion, disable or partially disable, modify or delete any or all of your accounts, block your IP address or device from accessing the Desktop Trace Service, or in any other lawful way partially or fully restrict your access to the Desktop Trace Service.
12.2 You agree to compensate us and keep us compensated for any loss we suffer (including financial or reputational loss) howsoever arising, including all claims, costs, damages, expenses (including reasonable barristers’ and/or solicitors’ fees and expenses and all disbursements), losses, liabilities or proceedings brought by a third party arising directly or indirectly:
a) in connection with your access to or use of the Desktop Trace Service;
b) from your breach of any of these Terms and Conditions or any obligation you may have to (including any costs relating to the recovery of any Fees that you have not paid to us); or
c) out of reasonable reliance by us or any third party upon any acts carried out, requests made or information provided through the use of your usernames and passwords.
13. Disclaimer and Liability
13.1 The Consumer Guarantees Act 1993 and the Fair Trading Act 1986 may imply warranties or conditions or impose obligations which cannot be excluded, restricted or modified. These Terms and Conditions must in all cases be read subject to those statutory provisions.
13.2 To the maximum extent permitted by law, and for the avoidance of doubt, we hereby disclaim all implied warranties with regard to the Desktop Trace Service. The Desktop Trace Service and software are provided “as is” and “as available” without warranty of any kind.
13.3 In no event will we be liable for any direct, indirect, special, punitive, exemplary, or consequential losses or damages of whatsoever kind arising out of your use of or access to the Desktop Trace Service, including loss of profit or the like whether or not in the contemplation of the parties or whether based on breach of contract, tort (including negligence), product liability, or otherwise.
13.4 We are not liable to you for any damage or alteration to your equipment, including but not limited to computer equipment, handheld devices, or mobile telephones, as a result of the installation or use of the Desktop Trace Service.
13.5 The Desktop Trace Service may include links to third-party websites. We accept no responsibility for the availability, suitability, reliability or content of such third-party websites and we do not necessarily endorse the views expressed in them.
14.1 Events outside our control: In the case of a Force Majeure Event interfering with our performance of any of our obligations under these Terms then we may at our sole discretion suspend our performance of any such obligation or terminate this Agreement and we will not be liable to you in any respect.
14.2 Waiver: These Terms and Conditions remain in force notwithstanding any neglect, forbearance or delay in enforcement. We will not be deemed to have waived any condition unless such waiver will be in writing and such waiver will only apply to the particular transaction to which it refers.
14.3 Severability: If any clause or provision of these Terms and Conditions will be held illegal or unenforceable by any judgment of any Court or Tribunal having competent jurisdiction, such clause will not apply to this Agreement. The remaining provisions of this Agreement will remain in full force and effect as if the clause or provision held to be illegal or unenforceable had not been included.
14.4 Entire agreement: This Agreement constitutes the entire agreement between you and us and supersedes and extinguishes all previous discussions, correspondence, negotiations, drafts, agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to the Desktop Trace Service.
14.5 Assignment: You acknowledge that we may transfer our rights under these Terms (and any related claims) to any third-party without having to obtain your prior consent.
14.6 Notices: Any notice given under the Agreement by us or you to the other must be in writing by email and will be deemed to have been given on transmission. Notices to us must be sent to [email protected] or to any other email address notified by email to you by us. Notices to you will be sent to the email address which you provided when setting up your access to the Desktop Trace Service.
15. Governing Law and Jurisdiction
This Terms and Conditions will be governed by the laws of New Zealand. You agree to submit to the non-exclusive jurisdiction of the New Zealand courts.
For any query, complaint or comment, please contact us by email at [email protected]