Updated August 2022
Cloud Appointments Terms & Conditions of Use
The following terms and conditions govern your use of the Cloud Appointments application (the “Application”). The Terms form a legal and enforceable agreement between you and Cloud Appointments that sets out your and Cloud Appointments’s rights and obligations in relation to the use of the Application.
You must read, understood and agree to these Terms. By licensing and using the Application, you agree to follow and be bound by the Terms. Cloud Appointments will not refund any License Fees paid if you later disagree with these Terms.
Cloud Appointments may change these Terms at any time at its absolute discretion and such changes shall take effect from the date that they are updated on Cloud Appointments’s website. You agree that your continued use of the Application represents your agreement to be bound by the most recent terms.
1. DEFINITIONS AND INTERPRETATION
“Application” means the Cloud Appointments software, accessible via a *.app.cloudappointments.co.nz web address where ‘*’ is a two or three character acronym assigned to your business’ system.
“Active Consultants” are users of the Application that can currently have appointments, session notes or invoices created in their name.
“Business Day” means a day other than a Saturday, Sunday or public holiday in New Zealand.
“Cloud Appointments” means Cloud Software Limited having its principal place of business at Level 1/50, First Avenue, Tauranga 3110, New Zealand.
“Cloud Appointments Technology” means all of Cloud Software’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Cloud Appointments in providing the Application.
“Customer Data” means any data, information or material provided or submitted to the Application by you in the course of using the Application.
“Fault” means a failure of the Application to function substantially as intended.
“Intellectual Property Rights” means any unpatented invention, patent application, patent, design right, copyright, trade mark, service mark, trade name, domain name right, know-how and other trade secret rights, and all other intellectual property rights, whether registered or unregistered, and forms of protection of a similar nature anywhere in the world.
“License Fee” means the monthly license fee payable by you to Cloud Appointments for the access to and use of the Application by the Users.
“Login Information” is the username and password that is unique to each User on each Application.
“Online Help” is the browser-based help system available when accessing the Application.
“Support Hours” means 9:00am to 5.00pm New Zealand Standard Time on a Business Day.
“Support Services” means:
- Advice on operating the Application.
- Other advice as may be reasonably required by you to obtain the full benefit and use of the Application.
- Investigation, diagnosis and repair of Faults.
“User” means you and any employee, representative, consultant, contractor or agent who is authorised to use the Application and has a User Account under your management.
“User Accounts” are used in the Application to create login credentials for Users and allow them access.
“Virus” means any thing or device (including any software, code, file or program) which may:
- Prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device.
- Prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise) or
adversely affect the user experience, including worms, trojan horses, malware, viruses and other similar things or devices unless the context requires otherwise.
Words importing one gender include the others.
Words importing the singular or plural number include the plural and singular number respectively.
Headings are inserted for the sake of convenience of reference only and do not affect the interpretation of these Terms.
A person includes any individual, corporation, unincorporated association, government department or municipal authority.
2. LICENSE
2.1 Cloud Appointments hereby grants you a non-exclusive, non-transferable license to permit.
- Users are to use the Application, solely for their own internal business purposes, subject to these Terms.
- All rights not expressly granted to you are reserved by Cloud Appointments.
- These terms govern any releases, revisions, or enhancements to the Application that Cloud Appointments may publish for your use.
2.2 Cloud Appointments will, at no additional cost to you, provide you with the Support Services in accordance with clause 7.
2.3 You will:
- Pay the License Fees set out in clause 8.
- Abide by all applicable local, state, provincial, national and foreign laws, regulations and treaties in connection with your use of the Application, including those related to data privacy, internal communications and the transmission of technical or personal data.
- Procure that the Users keep confidential their Login Information.
- Procure that the Users comply with these Terms at all times in relation to the access and use of the Application.
- Permit Cloud Appointments to actively monitor and audit the use of the Application in order to establish whether the Application is being used in accordance with these Terms.
- Promptly delete any login account if Cloud Appointments discovers that any Login Information has been provided to a person that is not a User.
- Make all reasonable endeavours to prevent any unauthorised access to or use of the Application and, in the event of any such unauthorised access or use, promptly notify Cloud Appointments.
- You are responsible for maintaining the confidentiality of your Login Information, and you will be responsible for all uses of your Login Information, whether or not authorised by you. In the event that you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorised disclosure of your Login Information, you must immediately notify Cloud Appointments by emailing info@cloudappointments.co.nz.
- You shall not:
- License, sub-license, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application in any way.
- Modify, make derivative works based upon, duplicate, download, reverse engineer all or any part of the Application.
- Access the Application, use or copy similar ideas, features, functions or graphics of the Application in order to build a competitive product or application.
- Access, store, distribute or transmit any Viruses.
3. ACCOUNT INFORMATION AND DATA
- Cloud Appointments does not own any Customer Data.
- You and your Users shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership or right to use of all Customer Data.
- Cloud Appointments will make all reasonable endeavours to ensure that Customer Data is stored securely and is regularly backed up according to generally-accepted industry standards.
- You acknowledge that, if there is any loss or damage to Customer Data, your sole and exclusive remedy will be for Cloud Appointments to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of Customer Data maintained by Cloud Appointments.
- Cloud Appointments is not responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
- Upon termination of these Terms, you may request a copy of the Customer Data in accordance with clause 10.2.
- Where you breach and there is termination of these Terms, your right to access or use Customer Data immediately ceases, and Cloud Appointments shall have no obligation to maintain or forward any Customer Data. Cloud Appointments reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment.
- Cloud Appointments may create anonymised statistical data from your Customer Data, including through aggregation. Once anonymised, Cloud Appointments may use it for its own purposes, such as to provide and improve its services and the Application, to develop new services or product offerings, to identify business trends, and for other uses communicated to you.
4. USERS
- The management of User Accounts in the Application is your responsibility.
- You will ensure that only Users will access and use the Application.
- User Accounts cannot be shared or used by more than one individual user.
- A User Account must be deleted when a User has terminated their employment or no longer uses the Application.
5. CONTENT UPDATES
- Cloud Appointments will, from time to time, update the Application. Access to the Application may be temporarily suspended while updates are applied.
- We will endeavour to give reasonable notice when and if an interruption in service is expected.
- The Application requires certain third party software products to be installed on your computer or device, including an operating system, internet browser, and browser plug-ins. Cloud Appointments sets minimum requirements in regard to these third party software products, and updates to the Application may require you to, independently and at your own expense, source and install updates to any or all of these third party software products.
6. INTELLECTUAL PROPERTY OWNERSHIP
- Cloud Appointments alone owns all right, title and interest, including all related Intellectual Property Rights, in and to the Application and any suggestions, ideas, enhancements, feedback, recommendations or other information provided by you or any other party relating to the Application.
- Except as expressly stated in these Terms, these terms do not grant you any rights to, or in, Cloud Appointments’s Intellectual Property Rights or any other rights or licences in respect of the Application. These Terms do not constitute a sale and do not convey to you any rights of ownership in or related to the Application or the Intellectual Property Rights owned by Cloud Appointments.
- The Cloud Appointments name, the Cloud Appointments logo, and the product names associated with the Application are trademarks of Cloud Appointments or third parties, and no right or licence is granted to use them.
7. SUPPORT SERVICES
- Cloud Appointments will use its best efforts to provide the Support Services during Support Hours. Fault logging facilities via email will be provided 24 hours a day, seven days a week.
- The Support Services do not include services being provided by Cloud Appointments relating to or resulting from:
- Misuse of the Application or failure to use the Application in accordance with the any user instructions or these Terms.
- Unauthorised attempts to repair, replace, modify or maintain the Application by persons other than Cloud Appointments.
- Support provided outside Support Hours.
- Fluctuations in external power supplies or faults in communications networks.
- Compatibility issues with the Application and your hardware, operating system or software.
- Cloud Appointments may, at its sole discretion, agree to provide Additional Support Services, and may charge a reasonable Fee for doing so.
- You will:
- Promptly report to Cloud Appointments all Faults which you discover.
- Ensure that suitably qualified contact person is available to be the prime point of contact with Cloud Appointments in the event of any Faults or queries.
- Make all reasonable efforts at investigation and diagnosis of Faults before contacting Cloud Appointments.
8. CHARGES AND PAYMENT OF FEES
- License Fees for the Application are dependant on the number of Active Consultants using the Application on a sliding scale. Please refer to the website for the current License Fee charges.
- A minimum of one Active Consultant is required for the Application to remain active.
- Licenses Fees are paid monthly either by credit card or by direct credit.
8.1 You will pay to Cloud Appointments:
- The License Fee for the number of Active Consultants using the Application.
- Any amounts due for Additional Support Services pursuant to clause 7.3, in accordance with this clause 8.
8.3 Non-active Consultant and other logins are exempt from the License Fees requirement, this may be reviewed from time to time.
8.3 If paying the Cloud Appointments License Fees by credit card
- The Application’s Consultant Licenses functionality must be used to create and maintain the validity of monthly license payments and their credit card details.
- Credit card payment License fees, will be processed against the same specified card near the same day of the month as the date of the original License fee.
- If credit card payments to Cloud Appointments are refused or declined then it is your responsibility to make good any outstanding amounts and pay any incurred charges.
8.4 If paying the Cloud Appointments License Fees by direct credit
- Transaction charges incurred for non-New Zealand bank account direct credit payments are the responsibility of the payee.
9. DISCLAIMERS, WARRANTIES AND LIABILITY
9.1 The Application is provided to you strictly on an “as is” basis. Except as set out in these Terms, all conditions, representations and warranties, whether express, implied, statutory or otherwise (including, without limitation, any implied warranty of merchantability, or fitness for a particular purpose) are hereby excluded by Cloud Appointments to the maximum extent permitted by law.
9.2 Cloud Appointments warrants that:
- The Application will be made available with reasonable skill and care.
- The Application will function substantially as intended.
- To the best of its knowledge and belief, the Application does not infringe the copyright of any third party.
9.3 While Cloud Appointments takes all reasonable care to ensure that the Application is compliant with the Health and Safety at Work Act 2015 and all other applicable laws and regulations (“Applicable Laws”), it does not warrant or represent that your use of the Application will meet all requirements imposed on your workplace by Applicable Laws in New Zealand or in any other country. Cloud Appointments recommends that you take your own legal and other advice to ensure that you comply with the obligations that apply to you and to ensure you meet your responsibilities under and comply with all Applicable Laws.
9.4 You acknowledge that:
- The Application may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Cloud Appointments is not responsible for any delays, delivery failures, or other damage resulting from such problems.
- Cloud Appointments does not warrant that the Application will function and/or communicate correctly due to third-party software installed by you.
- Cloud Appointments shall not be liable in any way for any inability to use the Application including, without limitation, loss of goodwill, work stoppage, computer failure or malfunction, or the loss of or damage to Customer Data.
9.5 Cloud Appointments expressly disclaims all liability and responsibility for any loss, damage or harm relating to or associated with the Application and its use.
9.6 In no event shall Cloud Appointments be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with the Application.
9.7 The maximum aggregate liability of Cloud Appointments under or in connection with these Terms, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must in any calendar year not exceed the total amount of License Fees paid in the immediately preceding calendar year.
9.8 You will indemnify Cloud Appointments against all costs, losses, expenses and damages (including reasonable legal fees and disbursements) incurred through any claims against Cloud Appointments resulting from the use of the Application by you and other Users, or arising from or associated with any breach of these Terms by you.
10. TERMINATION
Either party may terminate the agreement governed by these Terms by:
10.1 By giving the other party at least 5 working days prior notice by written or email.
On satisfaction of these Terms for any reason:
- The other party is in material breach of these Terms and fail to remedy such breach within 10 Business Days of receiving notice from the other party specifying the breach and requiring it to be remedied, or if such breach is incapable of remedy. or
- If the other party goes into liquidation or has a receiver or statutory manager appointed, becomes insolvent or makes any arrangement with creditors.
Then
- All licences and rights granted under these Terms will immediately terminate.
- You shall not be entitled to any refund for any prepaid License Fees.
- You will be liable for any outstanding License fee Fees or other amounts due under these Terms, which shall be charged in a lump sum at termination.
- Each party will return, and make no further use of, any equipment, property and other items belonging to the other party. and
- The accrued rights of the parties as at termination will not be affected or prejudiced.
10.2 Provided you are not in breach of these Terms, then for a period of 30 days following termination, you may request;
- A copy of your Application’s Customer Data in SQL Server backup format and a zip file of your external files data, there will be no charge for this.
- A set of CSV files containing your Application’s Customer Data and a zip file of your external files data, the price for this to be agreed.
11. FORCE MAJEURE
11.1 Cloud Appointments shall not be liable for any delay or failure to perform its obligations under these Terms resulting from acts, events, omission or accidents beyond its reasonable control, including without limitation acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, epidemic, strikes, failure of a utility service or telecommunications network or service of a third party, or shortages of transportation facilities, fuel, energy, labour or materials.
12. DISPUTE RESOLUTION
12.1 If a dispute arises out of or in relation to these Terms (“Dispute”), a party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the provisions of this clause 12.
12.2 The party claiming a Dispute has arisen must give written notice specifying the nature of the Dispute and its desire to begin informal negotiations.
12.3 Upon receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
12.4 If the Dispute is not resolved within 20 Business Days of receipt of the notice in clause 12.2 (or such further period agreed in writing by the parties), either party may, by giving written notice to the other party, require the Dispute to be determined by arbitration. A single arbitrator will be appointed by the parties, or failing agreement within five Business Days of the arbitration notice, by the President of the New Zealand Law society on application of either party. The arbitration will be conducted as soon as possible in accordance with the provisions of the Arbitration Act 1996 and shall be binding.
12.5 You agree and acknowledge that Cloud Appointments would be irreparably damaged in the event that you breached these Terms. Nothing in this clause 12 shall prevent Cloud Appointments to seek appropriate equitable remedies, including urgent interlocutory relief.
13. ASSIGNMENT
13.1 You may not assign any of your rights or interests under these Terms without the prior written approval of Cloud Appointments.
13.2 Cloud Appointments may at any time assign its rights or interest, or any part thereof, or transfer its obligations under these Terms to any person.
14. GENERAL
14.1 These Terms constitute the entire agreement of the parties, unless otherwise agreed in writing, and prevail over any previous terms, agreements or understandings, whether written or oral.
14.2 Clauses 6, 9, 11, 12 and 14 shall survive termination of these Terms.
14.3 Failure or neglect by a party to enforce at any time the provisions of these Terms will not be construed to be a waiver of that party’s rights, or to in any way affect the validity of the whole or any part of these Terms or any other agreement or understanding between the parties.
14.4 If any provision of these Terms is invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired and will continue to be of full force and effect.
14.5 Any notice to be given pursuant to these Terms are to be given in writing by email, personal delivery or by post:
- In the case of Cloud Appointments, to Level 1/50 First Avenue, Tauranga 3110, with a copy emailed to info@cloudappointments.co.nz. and
- In the case of the customer, to the billing address and email address provided to Cloud Appointments.
14.6 Nothing express or implied in these Terms will constitute either party as the partner, agent, employee or joint venturer of the other party.
14.7 These Terms are governed by New Zealand law, and the parties agree to submit to the non-exclusive jurisdiction of the New Zealand courts.
