These Terms are binding on any use of the Service and apply to the Subscriber from the time that RPM provides the Subscriber with access to the Service.
The Service will evolve over time based on subscriber feedback. RPM reserves the right to change these Terms at any time, effective upon the posting of modified Terms online at . RPM will also make every effort to communicate these changes to the Subscriber via the email address provided. It is likely the Terms will change over time. It is the Subscribers’ obligation to ensure that the Subscriber has read, understood and agrees to the most recent Terms available.
By registering to use the Service, the Subscriber is deemed to have read and understood these Terms and the person registering warrants that they have the authority to act on behalf of the Subscriber.
These Terms were last updated on 1st April 2018.
"Agreement" or "Terms"
means the monthly fee (excluding any taxes and duties, which are payable in addition) payable by the Subscriber in accordance with the Subscription Form which RPM may change from time to time upon notice to the Subscriber after completion of the Contractual Period.
means stores, administration offices, and suppliers which the Subscriber has authorised to use the Service.
includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service, but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
means the minimum period the Subscriber agrees to use the Service as specified in the Subscription Form.
means point-of-sale (POS) data extracted from the Subscriber's point-of-sale system and other company data supplied to RPM.
"Intellectual Property Right"
means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
means the division of Montage Professional Services Ltd which has created and administers the Service, located at PO Box 1902, Level 1, 64 Gloucester Street, Christchurch, New Zealand.
means the online reporting and analysis tool called RPM which provides insights and reports to the Subscriber and its Authorised Users, as changed or updated from time to time by RPM.
means the aggregation of independent Subscribers in a particular field of business which are not affiliated to a business group.
means the subscriber identified in the Subscription Form, who registers to use the Service, and, where the context permits, includes any Authorised User accessing the Service on whose behalf that person registers to use the Service. This indicates an ability to sublicense.
means the subscription form signed or to be signed by the Subscriber which sets out the particular terms applicable to the Subscriber's rights to access the Service.
2. USE OF THE SERVICE
RPM grants the Subscriber the right to access and use the Service according to the Subscribers’ subscription type, including the right for the Subscriber to allow its Authorised Users to access and use the Service subject to the same terms and conditions as apply to the Subscriber. The Subscriber is responsible for ensuring its Authorised Users' use of the Service complies with this Agreement (and restrictions on the Subscriber in this Agreement will be deemed to include the Authorised Users also). The rights granted under this clause are non-exclusive, non-transferable, and limited by and subject to this Agreement.
3. SUBSCRIBER OBLIGATIONS
1. Payment obligations:
An invoice for the Access Fee will be issued at the beginning of each calendar month for usage throughout this month. RPM will continue invoicing the Subscriber monthly until this Agreement is terminated in accordance with clause 8.
All RPM invoices will be sent by email to the Subscriber, or to a Billing Contact whose details are provided by the Subscriber. The Subscriber must pay or arrange payment of all amounts specified in any invoice by the due date for payment specified on the invoice. The Subscriber is responsible for payment of all taxes and duties in addition to the Access Fee.
2. Default of payment:
In the event of any payment default the Subscriber agrees to pay all legal and other incidental expenses incurred in recovering the debt. RPM reserves the right to charge the Subscriber (and if so charged, the Subscriber shall pay) interest at the rate of 3% per month calculated on a daily basis on any part of the access fee which remains unpaid from the due date to the date on which payment is made in full to RPM.
The fees payable under this Agreement may vary after the Contractual Period and RPM will give the Subscriber 30 days notice of any such variations in writing via email. The Subscriber is responsible for all other costs associated with the use of RPM.
3. General obligations:
The Subscriber must only use the Service for the Subscribers’ own lawful internal business purposes, in accordance with these Terms and any notice sent by RPM or condition detailed as part of the Service.
4. Access conditions:
a. The Subscriber must ensure that all passwords required to access the Service are kept secure and confidential. The Subscriber must immediately notify RPM of any unauthorised use of the Subscribers’ passwords or any other breach of security.
b. As a condition of these Terms, when accessing and using the Services, the Subscriber must:
i. not attempt to undermine the security or integrity of RPM’s computing systems or networks or, where the Service is hosted by a third party, that third party's computing systems and networks;
ii. not use, or misuse, the Service in any way which may impair the functionality of the Service, or other systems used to deliver the Service or impair the ability of any other Subscriber to use the Service;
iii. not attempt to gain unauthorised access to any materials other than those to which the Subscriber has been given express permission to access or to the computer system on which the Service are hosted;
iv. not transmit, or input any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which the Subscriber does not have the right to use);
v. not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Service.
vi. not to sell, assign, transfer, sub-license or otherwise dispose of any interest it has in RPM or this Agreement; and
vii. not to publish, disclose, or otherwise make available the Service or operating instructions in any form to any person, other than to the Subscriber’s Authorised Users during the term of this Agreement.
5. Usage limitations:
Use of the Service may be subject to limitations, including but not limited to monthly transaction volumes and the number of calls the Subscriber is permitted to make against RPM’s application programming interface. Any such limitations will be specified within the Service.
6. Communication conditions:
As a condition of these Terms, if the Subscriber uses any communication tools available through the Service (such as any forum, chat room or message centre), the Subscriber agrees only to use such communication tools for lawful and legitimate purposes. The Subscriber must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, unsolicited commercial e-mail, files that may damage any other person's computing devices or software, content that may be offensive to any other users of the Service, or material in violation of any law or third party rights (including material that is protected by privacy laws, copyright or trade secrets which the Subscriber does not have the right to publish).
RPM is under no obligation to ensure that the communications are legitimate or that they are related only to the use of the Service. As with any other web-based forum, the Subscriber must exercise caution when using the communication tools available on the Service. RPM reserves the right to remove any communication at any time in its sole discretion.
The Subscriber indemnifies RPM against: all claims, costs, damage and loss arising from the Subscribers’ breach of any of these Terms or any obligation the Subscriber may have to RPM.
4. CONFIDENTIALITY AND PRIVACY
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
a. Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
b. Each party's obligations under this clause will survive termination of these Terms.
c. The provisions of clauses 4.1.a and 4.1.b shall not apply to any information which:
i. is or becomes public knowledge other than by a breach of this clause;
ii. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
iii. is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
iv. is independently developed without access to the Confidential Information.
2. Sector disclosure:
RPM reserves the right to disclose the results of aggregated Sector data in order to provide commentary on Sector performance and promote the Service. Where a Sector is comprised of multiple business groups, approval will be sought from each Subscriber's head office prior to any disclosure being made.
5. INTELLECTUAL PROPERTY
The Subscriber acknowledges that:
Title to, and all Intellectual Property Rights in the Services and any related documentation, remain the property of RPM (or its licensors). As new inventions, designs or processes evolve in performance of or as a result of the use of the Service by the Subscriber (or the Authorised Users) they will become the property of RPM unless otherwise agreed in writing by these parties.
2. Ownership of Data:
Title to, and all Intellectual property rights in, the Data remain the Subscriber's property, however, the Subscriber's access to the Data is contingent on full payment of the Access Fee when due. The Subscriber grants RPM a licence to use, copy, transmit, store, and back-up the Subscriber's Data for the purposes of enabling the Subscriber to access and use the Service.
3. Back-up of Data:
The Subscriber must maintain copies of all Data inputted into the Service. RPM adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. RPM expressly excludes liability for any loss of Data no matter how caused.
4. Third-party Applications:
By separate agreement between RPM and the Subscriber, RPM can integrate third-party applications in order to enhance or provide better support for the Service. RPM shall not be responsible for any unintended disclosure resulting from the use of such applications.
6. WARRANTIES AND ACKNOWLEDGEMENTS
The person accepting these terms warrants that they have authority to agree to these Terms on behalf of the Subscriber, and to the extent necessary, the Authorised Users.
The Subscriber acknowledges that:
a. The Subscriber is authorised to use the Service to access the information and Data that is contained within, whether the information and Data is that of the Subscriber, Authorised Users, or anyone else.
b. The provision of, access to, and use of, the Service is on an "as is" basis and at the Subscribers’ own risk.
c. RPM does not warrant that use of the Service will be uninterrupted or error free or that it will operate with any particular computer hardware, platform or other software. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. RPM is not in any way responsible for any such interference or prevention of the Subscribers’ access or use of the Services.
3. No warranties:
Without limiting the foregoing, RPM does not warrant that the Service will meet the Subscribers’ requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
4. Consumer guarantees:
The Subscriber is acquiring the right to access and use the Service for business purposes and, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services or these Terms.
7. LIMITATION OF LIABILITY
1. To the maximum extent permitted by law, RPM excludes all liability and responsibility to the Subscriber, Authorised Users, and any other person, in contract, tort (including negligence), or otherwise, for any loss (including loss of hardware, software, information, Data and profits) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service, whether or not the risk of such loss was in the contemplation of any party.
2. If the Subscriber or an Authorised User suffers loss or damage as a result of RPM’s negligence or failure to comply with these Terms, any claim will be limited in respect of any one incident, or series of connected incidents, to the Access Fees paid by the Subscriber in the previous 12 months.
3. If the Subscriber is not satisfied with the Service, the Subscriber's sole and exclusive remedy is to terminate these Terms in accordance with Clause 8.
4. RPM shall have no liability with respect to the accuracy or validity of any instruction presented via the Service and it is the Subscriber's responsibility to verify this prior to being acted upon.
1. No-fault termination:
These Terms will continue for the Contractual Period and thereafter will continue on a month-to-month basis, unless either party terminates these Terms by giving notice to the other party at least 30 days before.
If the Subscriber (or an Authorised User):
a. breaches any of these Terms (including, without limitation, by non-payment of any Access Fees) and does not remedy the breach within 14 days after receiving notice of the breach (if the breach is capable of being remedied); or
b. breaches any of these Terms and the breach is not capable of being remedied; or
c. in the case of the Subscriber only, becomes insolvent, goes into liquidation, or has a receiver or manager appointed over any of its assets;
then RPM may take any or all of the following actions, at its sole discretion:
d. Terminate this Agreement and the Subscriber's use of the Service;
e. Suspend for any definite or indefinite period of time, the Subscriber's use of the Service;
f. Suspend or terminate access to all or any Data;
g. For the avoidance of doubt, if payment of any invoice for Access Fees is not made in full by the relevant due date, RPM may suspend or terminate the Subscriber's use of the Service. If the Subscriber's right to the Service is terminated or suspended, the subsidiary rights of the Subscriber's Authorised Users will also be terminated or suspended (as the case may be).
3. Accrued rights:
Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement the Subscriber will:
a. remain liable for any accrued charges and amounts which become due for payment before or after termination; and
b. immediately cease to use the Service.
9. HELP DESK
In the case of technical problems the Subscriber must make all reasonable efforts to investigate and diagnose problems before contacting RPM. If the Subscriber still requires technical support, please contact RPM support desk by phone at +64 (0)3 3777 615, or failing that via email at firstname.lastname@example.org.
Whilst it is intended that the Service should be available during normal business hours (8:00am to 5:30pm, Monday to Friday), it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place. If for any reason RPM has to interrupt the Service, reasonable endeavours will be taken to provide advanced notice of this interruption via email and via the notifications within the Service.
This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, warranties and communications (oral and written) between the parties. No amendment, modification or variation of this Agreement shall be effective unless made in writing and executed by the parties.
If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
The Subscriber may not assign or transfer any rights under these terms or to use the Service without RPM's prior written consent.
Governing law and jurisdiction:
If the Subscriber was a tax resident in New Zealand at the time of first accepting these Terms, then New Zealand law governs this Agreement and the Subscriber submits to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement. If the Subscriber accessing the Service was a tax resident in Australia at the time of first accepting these Terms, then Australian law governs this Agreement and the Subscriber submits to the exclusive jurisdiction of the courts of Australia for all disputes arising out of or in connection with this Agreement. In all other situations this Agreement is governed by the laws New Zealand for all disputes arising out of or in connection with this Agreement.
If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
Unless otherwise specified, any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to RPM must be sent to or to any other email address notified by email to the Subscriber by RPM. Notices to the Subscriber will be sent to the email address which the Subscriber provided when setting up the Subscriber's access to the Service (or such other address as the Subscriber notifies from time to time).
Rights of third parties:
Although Authorised Users may have certain subsidiary rights to use the Service with the permission of the Subscriber, a person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.