General terms and conditions
These general terms and conditions (the “General Terms and Conditions”) describe the Terms and Conditions under which Data Providers, Data Users and App Developers (each as defined below, and each a “Subscriber” of the Platform) can make use of the Platform (as defined below) and/or procure other services from Platform8, as the Authorised license provider . The use of the Platform, the Platform API’s by Data Providers, Data Users and App Developers and other services rendered by Platform8 shall be governed by the General Terms and Conditions supplemented by the terms and conditions applicable to that specific Platform API as made available through the Platform (the “API Terms and Conditions” and together with the General Terms and Conditions, the commercial arrangements between Platform8 and the Subscriber and the documents referenced therein, the “Terms and Conditions”). These General Terms and Conditions are not applicable to any Subscribers that entered into a specific customer agreement, whether or not concluded prior to or after the acceptance of these General Terms and Conditions. In such case the specific customer agreement will apply.
1.2 Entity Qualification
For the avoidance of doubt, each Subscriber may, at the same time qualify as Data Provider, Data User and/or App Developer. In such case, all relevant provisions will apply.
The Platform license and services is provided by Platform 8 Limited the authorised license provider, appointed as independent, distributor of the Platform across New Zealand, Australia and the South Pacific. (“Platform8”).
Prior to registration or login into the Platform, the Subscribers have been informed of the Terms and Conditions and have accepted all provisions thereof. Platform8 will, following pre-registration by a prospect Subscriber, activate a Subscriber’s account based upon a review of the provided credentials. For activation, each Subscriber is to provide its corporate details (including GST number) and any other registration information reasonably requested by Platform8. By accessing the Platform, the Subscribers accept the Terms and Conditions (including for the avoidance of doubt the applicable Service Level Agreement and Pricing Schedules). By using a specific Platform API, the Subscribers accept the API Terms and Conditions (including for the avoidance of doubt the applicable Service Level Agreement). Platform8 reserves the right to modify unilaterally and at any time the Terms and Conditions. Any such amendments or changes will be effective immediately upon making such changes available on the Platform. If any changes are made to the Terms and Conditions, such changes will (a) only be applied prospectively in accordance with art. 17.4 and (b) not be specifically directed against a specific Subscriber but will apply to all similarly situated Subscribers using the Platform. Each Subscriber may terminate the Terms and Conditions upon written notice to Platform8 if any change to the Terms and Conditions is unacceptable to such Party.
The following definitions shall apply to the Terms and Conditions, unless the context necessarily requires otherwise:
“Account” means the personal Account of the Subscriber which enables access to and use of the Platform;
“API” means an application programming interface, a set of clearly defined methods of communication, to interact with the Platform and to provide, obtain or process Data;
“Application Developer” or “App Developer” means a User, who develops one or more Applications on the Platform;
“Affiliates” means any entity controlling or controlled by or under common control with a Party, where “control” is defined as the ownership of more than 50% of the equity or other voting interests of such entity or the power to direct or cause the direction of the management or policies of such entity, whether through ownership, voting securities, contract or otherwise.
“Article” means an Article of these General Terms and Conditions;
“Data” means any content uploaded and shared on the Platform, regardless of the method of upload or sharing, or whether the Data was the result of an upload, the combination with other Data or enrichment of the Data by Platform8, the Subscriber or a User;
“Data Controller” or “controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data;
“Data Processor” or “processor” means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller;
“Data Provider” means the entity which shall provide Data to be made available on or processed through the Platform;
“Shipping Platform Provider” means NxtPort Asia Pacific Pte Ltd., incorporated and existing under the laws of Singapore with registered seat at 111 NORTH BRIDGE ROAD #06-20, PENINSULA PLAZA, Singapore, 179098, registered under number 202130732H;
“Shipping Data Sharing Platform” means the software services operated by the Shipping Platform Provider;
“Data User” means the entity which shall be able to make use of specified Data;
“Fair Use Policy” means the Fair Use Policy in Article 17.5, as may be amended from time to time;
“Fees” shall mean the amounts payable, if any, by the Data Users or App Developers, consisting of a subscription fee, a data fee and/or a transactional fee, in accordance with the Terms and Conditions and as further detailed in API Specific Terms and/or the Platform;
“Intellectual Property Rights” or “IPR” means any and all now known or hereafter existing
- (i) rights associated with works of authorship, including but not limited to copyrights, copyrightable works (and moral rights;
- (ii) trademarks, trade dress, trade names, or corporate names;
- (iii) trade secret rights;
- (iv) patents, patent disclosures, and inventions (whether patentable or not) know-how and industrial property rights;
- (v) logos, layout design rights, design rights and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; whether registered or not;
- (vi) database rights; and
- (vii) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world;
“Party” and “Parties” means Platform8 and/or one or all of the Subscribers, as applicable;
“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as (but not limited to) a name, an identification number, location Data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
“Platform”, as described in Article 3, will collect, store, pool and exchange Data from a multitude of sources and various stages in the supply chain targeting the ports and logistics sector. The Platform is a customised version of Shipping Data Sharing Platform for the Territory;
“Pricing Schedule”, means the pricing schedule made available to the Subscriber setting out the subscription fee(s), a transactional fee and/or a data fee, as the case may be, applicable to the use of the Platform, an API, or a specific set of Data;
“Service Level Agreements” means the Service Level Agreements provided by Platform8 through the Platform as accepted by the Subscriber, as may be amended from time to time by Platform8 in accordance with these Terms and Conditions. The Service Level Agreements can be defined on a Platform level or in API Terms and Conditions. The Service Level Agreements shall be considered to form an integral part of these Terms and Conditions or the API Terms and Conditions and are incorporated by reference;
“Subscriber” means the Data Provider, Data User and App Developer who shall make use of the Platform and to which the Terms and Conditions shall be applicable;
“Technical Partner” means any technology provider or service provider engaged by Platform8 for the further development or support of the Platform;
“Territory” means New Zealand, Australia and South Pacific;
“User” means a registered user of the Platform that qualifies as one or more of following: Data Provider, Data User or App Developer.
3 Description of the Platform
Platform8 has been authorised to grant access rights for the Shipping Data Sharing Platform which will collect, store, pool and exchange Data from a multitude of sources and various stages in the supply chain targeting the ports and logistics sector for the Territory(“Platform”). Data Providers shall make certain Data available on the Platform, whereas Data Users and App Developers shall have access to such Data through the Platform and its APIs.
It is agreed that, unless and until a Data Provider has accepted a specific set of API Specific Terms, no Data of the Subscriber will be shared with any User. It is agreed that, unless and until the account of a Subscriber has been activated by Platform8, Subscriber will not be granted access to the Platform.
4.1 License by Subscriber
Data Provision. By uploading, creating or otherwise providing information or Data on the Platform, Subscriber grants to Platform8 a Territory wide, non-exclusive, non-transferable and sublicensable license which is limited to:
(i) make the Data available to Authorised Users, in strict compliance with the instructions made available by the Subscriber through the Platform, who will, subject to payment of a Fee, if any, be granted the right to copy, share within their organization, create derivatives from, make commercial use of (to the extent explicitly allowed pursuant to the API Specific Terms)and display specified Data;
(iii) use, save, store and process any raw Data through the Platform to the extent necessary to provide, maintain and improve the Platform including the usage for Data analysis via the Platform, solely in an aggregated and unidentifiable manner and only for the purpose of creating added value for the Subscriber.
Applications. By uploading, creating or otherwise distributing an Application on the Platform, the Subscriber grants Platform8 a Territory wide, non-exclusive, non-transferable and non-sublicensable license which is limited to:
(i) Use, perform, make available, display to the public, reproduce and distribute the Application in accordance with the instructions given by the Subscriber through the Platform and use Subscriber’s name, likeness or brand (which include all of Subscriber’s trademarks, services marks, logos, brand names or trade names (“Marks”)) to the extent it is incorporated into the Application, all solely to the extent required for the distribution of the Application on the Platform to Subscribers;
(ii) use, copy, store, modify, transmit and display such Application to the extent necessary to provide and maintain the Platform;
(iii) sublicense the foregoing rights to Platform8 Affiliates, Technical Partners, or any third parties working with Platform8 as development partners, hosting facilities and in similar capacities, solely in order to enable them to perform their services for Platform8 and only in so far, those services are necessary for the provision and maintenance of the Platform.
4.2 License by Platform8
Data Provision. Platform8 shall grant Subscriber a limited, non-exclusive, non-transferable, limited sublicensable (as set out in this Article) license to use, modify, upload, access and view its Data and the Platform in accordance with these Terms and Conditions. Platform8 reserves the right, but is not obliged, to review and remove any Data or information which is deemed to be in violation with the provisions of these Terms and Conditions or otherwise inappropriate, deemed to be in violation of any rights of third parties or any applicable legislation or regulation, may materially and adversely impact the functioning of the Platform, is incorrect or contains errors, or pose a security risk to Users.
Data maybe logically deleted but physically retained for audit purposes and may appear in audit logs for a period set period see Data Retention & Deletion.
Restrictions on use. The Subscriber agrees to use the Platform and its Account only for its intended use as set forth in these Terms and Conditions, and at all times in accordance with the Fair Use Policy. Within the limits of the applicable law, Subscriber is not permitted, unless explicitly allowed on the Platform, to
(i) adapt, alter, translate or modify in any manner the Platform;
(ii) decompile, reverse engineer, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
(iii) use or copy the Platform except as expressly allowed under this Article 4;
(iv) gain unauthorised access to Accounts of other Users or use the Platform or its Account to conduct or promote any illegal activities;
(v) use the Platform or its Account to generate unsolicited email advertisements or spam;
(vi) use the Data for any illegal activities;
(vii) use the Data through a specific API for any other purposes than the intended purpose of such API;
(viii) impersonate any person or entity, or otherwise misrepresent its affiliation with a person or entity;
(ix) use any high volume automatic, electronic or manual process to access, search or harvest information from the Platform other than through the documented use of the Platform APIs;
(x) alter, remove, or obscure any copyright notice, digital watermarks, proprietary legends or other notice included in the Platform;
(xi) intentionally distribute any worms, virus, Trojan horses, corrupted files, or other items of a destructive or deceptive nature or use the Platform or its Account for any unlawful, invasive, infringing, defamatory or fraudulent purpose; or
(xii) remove or in any manner circumvent any technical or other protective measures on the Platform.
The Subscriber is not allowed to use the Platform in a manner not authorised by Platform8 and these Terms and Conditions. Subscriber shall use the Platform solely in full compliance with (i) these Terms and Conditions, (ii) any additional instructions or policies issued by Platform8, including, but not limited to, those posted within the Platform and (iii) any applicable legislation, rules or regulations. If Platform8 becomes aware or suspects, in its sole reasonable and substantiated discretion, any violation by Subscriber of the Terms and Conditions or any other instructions, guidelines or policies (including the Fair Use Policy) issued by Platform8, then Platform8 may suspend or limit Subscriber’s access to its Account. The duration of any suspension by Platform8 will be until Subscriber has cured the breach which caused such suspension or limitation.
No implied licenses. Except as expressly set forth herein, no express or implied license or right of any kind is granted to the Subscriber regarding the Platform or its Account thereof, including but not limited to any right to obtain possession of any source code, Data or other technical material relating to the Platform.
Accounts. The Subscriber shall receive certain Account information from Platform8 to be able to access its Account on the Platform and shall be free to set up Account communities within its own Account to register Authorised Users (i.e. employees, contractors, consultants or professional advisers of the Subscriber (or of its Affiliates, in accordance with the section ‘Sublicensing to Affiliates’ below). The Subscriber shall be liable for any breaches by its Authorised Users of the terms and conditions of these Terms and Conditions. The Subscriber shall be solely responsible for all access to and use of the Platform and its Account through its Account details and passwords.
Sublicensing to Affiliates. Subscriber may sub-license the licenses provided for in this Article to its Affiliates, by registering such Affiliates in the Platform. By registering such Affiliates, Subscriber warrants that it has the authority to bind such Affiliates. If the Subscriber grants any rights, pursuant to this Section, to Affiliates with respect to the Platform, such Affiliates will be bound by these Terms and Conditions and the Subscriber agrees to be jointly and severally liable for any actions of such Affiliates related to their use of the Platform and the Data.
5 Information Security
The Platform shall adopt and use appropriate safeguards, in accordance with the instructions as set out on the Platform, to preserve the confidentiality, integrity and availability of the Data and to prevent its use or disclosure, other than as permitted by the Terms and Conditions, or as required by law.
5.1 Password security
Authorised users will be allocated a username and a password they provide. The password provided by the user must be at least 11 characters of mixed case at a minimum. Password must not contain the user’s account name. Passwords must not be written down or sent via electronic means unsecured. Unique user accounts should not be shared or disclosed to other persons.
5.2 System Key / Token security
To enable system to system communication to occur, systems will be identified by system keys and tokens. These keys must be stored in encrypted forms on the end systems and not entered in clear text within any code bases or code repositories. Access tokens will be time bound for a system to utilise and will need to be refreshed or a new token requested.
5.3 Log Retention
Detailed logs will be kept no longer than 2 months unless required by law, or security. Summarised logs will be kept for up to 1 year to allow modelling of services demand and usage patterns.
5.4 Data Retention & Deletion
On the termination of contract or where a business or individual ceases to interact with Platform8, and data held serves no business function then:
- Data will be deleted from the system using a mixture of physical and logical deletion as required.
- To ensure integrity for other users and for historical audit and record of transactions as required by law, required data will be retained.
- Data in higher levels of abstraction can remain where it no longer provides commercial insight to a given organisation or personal information to an individual.
- Where data is utilised for Machine Learning, the source data will be deleted in accordance with the above, but the models and decisioning based on this data will remain.
6 Professional Services
Any professional services (other than the provisioning of the Platform), (the “Professional Services”) will be rendered by Platform8 with the required care based on an offer provided to the Subscriber. Art. 7, 8, 9, 10, 11, 13 through 16 are applicable to these Professional Services.
The Subscriber is granted a personal, restricted, Territory license on the deliverables provided in the course of the Professional Services (the “Deliverables”) for the full duration of the underlying Intellectual Property Rights, for use in its internal business.
7 Payment terms
7.1 Platform Fees
A Fee will be charged to the Data Users and App Developers, consisting of a subscription fee, a transactional fee and/or a data fee in accordance with the Pricing Schedules (the “Fees”). The Fees are made available through the Platform. Unless otherwise agreed, payment of such Fees shall be managed through the Subscriber’s Account on the Platform.
7.2 Data Fees
No costs will be charged to Data Providers for the provisioning of the Data. Each Data Provider can freely determine in his dashboard the data fee applicable to the use of its Data. Platform8 will transfer all received data fees to the Data Provider. At any given moment, a Data Provider will be free to adjust its data fees downwards. A Data Provider can only once every three (3) months increase its data fees.
7.3 Invoicing and Payments
Unless otherwise provided for in the Platform, all undisputed invoices are due and payable by the Subscriber within thirty (30) days from the invoice. All payments made by the Subscriber to Platform8 under these Terms and Conditions shall be final and non-refundable.
All fees are in NZD unless stated otherwise and do not include any taxes and duties such as GST, which shall be charged additionally to the Subscriber.
In the event the Subscriber disputes any portion of an invoice, such Subscriber shall notify Platform8 of such disputed amount and the basis for the Subscriber’s dispute within fifteen (15) calendar days from the invoice date via registered mail, failure of which shall result in the invoice being irrevocably deemed accepted by the Subscriber. Any undisputed portion shall be paid as provided herein.
7.6 Late payment
In the event of non-payment or insufficient payment on the due date, the following shall apply automatically and without any formal notice or court order being required, shall bear an APR interest rate of 12%, capitalized annually;
8 Confidential Information
All software, plans, documents, know-how, Data and other information relating to a Party’s business, technology, products or services or other proprietary or confidential information provided by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) under the Terms and Conditions shall be considered and treated as confidential (the “Confidential Information”). The Confidential Information remains at all times the property of the Disclosing Party.
8.2 The Receiving Party shall
(i) only use such Confidential Information for the purposes of complying with its obligations under the Terms and Conditions;
(ii) store such Confidential Information with at least the same level of care applied when storing its own Confidential Information, and in no case with a less than reasonable level of care; and
(iii) not disclose such Confidential Information to any third Party.
The confidentiality obligations as specified in this Article 8 shall not apply to information which:
(i) has become publicly known in a way other than by violation by the Receiving Party of its obligations under the Terms and Conditions;
(ii) was disclosed to the Receiving Party by a third Party that is not under any obligation of confidentiality to the Disclosing Party;
(iii) was developed by the Receiving Party independent of the Disclosing Party’s Confidential Information, or was already known by the Receiving Party prior to the information being disclosed by the Disclosing Party; and/or
(iv) is disclosed with the prior written consent of the Disclosing Party.
Notwithstanding Article 8.2, the Receiving Party may disclose the Confidential Information to its employees, consultants and suppliers which are directly involved with and/or should be informed of such Confidential Information for the execution of the Receiving Party’s obligations as set forth in the Terms and Conditions. The Receiving Party shall impose on them confidentiality obligations which are at least similar to those included in this Article 8.
9 Data Protection
To the extent any Personal Data is controlled or processed by the Platform, such processing shall be done in accordance with the applicable data protection legislation.
9.1 Data controller
Platform8 may collect any Personal Data, such as (but not limited to) name and e-mail address, from the Subscribers concerning their employees or consultants. Such Personal Data shall be used by Platform8 solely for the purpose of the management of the Account and the Platform, as well as for the contractual management of the client relationship with the Subscriber (invoicing, renewal request). In this regard, Platform8 shall act as Data Controller.
9.2 Data processor
Data processor. Platform8 may be provided access to any Personal Data and/or must process any Personal Data on behalf of the Subscriber when performing its obligations under these Terms and Conditions. In this regard, the Parties record their intention that the Subscriber shall act as “Data controller” and Platform8 shall act as “Data processor”, as specified in the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC). Platform8 acts exclusively on behalf of and upon the lawful instructions of the Subscriber, and shall not process any Personal Data in this regard for its own purposes.
Platform8 and the Subscriber shall each take the appropriate technical and organizational measures which are required to protect the Personal Data against accidental or unauthorised destruction, accidental loss, as well as against any modification of or access to, and any other unauthorised processing of the Personal Data.
Each Data subject must be informed of the existence of his/her rights of access, rights of rectification and erasure, and right to object to Data processing at any time and free of charge.
10 Intellectual Property Rights
The Platform, including any rights, title and interest (including Intellectual Property Rights) therein, shall at all times remain the sole and exclusive property of Platform Provider and/or its licensor, and the Subscriber shall obtain no rights, title or interest (including without limitation Intellectual Property Rights) in the Platform pursuant to these Terms and Conditions except the rights expressly granted hereunder. The Platform (including the Intellectual Property Rights) may not be modified, copied, printed, reproduced, distributed, republished, performed, downloaded, displayed, posted, transmitted and/or otherwise used in any form or by any means, unless expressly permitted in these Terms and Conditions. Except as expressly set forth herein, no express or implied license or right of any kind is granted to the Subscriber regarding the Platform or any part thereof, including any right to obtain possession of any source code, Data or other technical material related to the Platform.
The Deliverables, including any rights, title and interest (including Intellectual Property Rights) therein, shall at all times remain the sole and exclusive property of Platform Provider and/or its licensor, and the Subscriber shall obtain no rights, title or interest (including without limitation Intellectual Property Rights) in the Deliverables pursuant to these Terms and Conditions except the rights expressly granted hereunder.
The Data including any rights, title and interest (including Intellectual Property Rights, if any) therein, shall at all times remain the sole and exclusive property of the Data Provider and/or its licensor and Platform8 and the Authorised Users shall obtain no rights, title or interest (including without limitation Intellectual Property Rights) in the Data pursuant to these Terms and Conditions except the rights expressly granted hereunder. The Data may not be modified, copied, printed, reproduced, distributed, republished, performed, downloaded, displayed, posted, transmitted and/or otherwise used in any form or by any means, unless expressly permitted in this Terms and Conditions.
10.4 App Development
The App Developer (or its licensor’s) shall at all times retain all right, title and interest in his App. Other than a license to use in accordance with these Terms and Conditions, no other party obtains any rights in such App. The App (including the Intellectual Property Rights) may not be modified, copied, printed, reproduced, distributed, republished, performed, downloaded, displayed, posted, transmitted and/or otherwise used in any form or by any means, unless expressly permitted in these Terms and Conditions. Except as expressly set forth in Article 4, no express or implied license or right of any kind is granted to Platform8 or other Users regarding the App or any part thereof.
11 Platform8 Rights & Obligations
Platform8 reserves the right, but is not obliged, to review and remove any Data or information which is deemed to be in violation with the provisions of the Terms and Conditions or otherwise inappropriate, deemed to be in violation of any rights of third Parties or any applicable legislation or regulation, may materially and adversely impact the functioning of the Platform, or pose a security risk to Subscribers.
If Platform8 becomes aware or suspects, in its sole discretion, any violation by Subscriber of the Terms and Conditions, or any other instructions, guidelines or policies issued by Platform8, then Plaftorm8 may suspend or limit Subscriber’s access to its Account. The duration of any suspension by Platform8 will be until Subscriber has cured the breach which caused such suspension or limitation.
Platform8 may delete any Data related to the Subscriber after its Account is closed, and such Data shall not be recoverable. Platform8 shall not be responsible for any Data that is lost due to the closing of the Account
12 Subscriber’s Rights and Obligations
The Subscriber shall receive Account information from Platform8 to be able to access its Account on the Platform and shall be free to set up Account communities within its own Account to provide access to several Authorised individuals appointed by the Subscriber.
The Subscriber shall be solely responsible for all access to and use of the Platform and its Account and through its account community.
13.1 To the maximum extent permitted under applicable law, Platform8’s liability arising out of or in connection with these Terms and Conditions shall not exceed (i) the amounts of Fees paid by the Subscriber during a period of twelve (12) months preceding the claim or (ii) NZD 25,000. The limitation in this Section 13.1 shall not apply to the damages resulting out of the breach by Platform8 of its obligations under Article 8 and 9.
13.2 To the extent legally permitted under applicable law, Platform8 shall not be liable to the Subscribers or any third Party, for any special, indirect, exemplary, punitive, incidental or consequential damages of any nature including, but not limited to damages or costs due to loss of profits, reconstruction of Data, revenue, goodwill, production or use, procurement of substitute services, or property damage arising out of or in connection with the Platform under the Terms and Conditions, regardless of the cause of action or the theory of liability, even if Platform8 has been notified of the likelihood of such damages.
13.3 Subscribers agree that Platform8 can only be held liable as per the terms of this Article 13 to the extent damages suffered by Subscribers are directly attributable to Platform8. For the avoidance of doubt, Platform8 shall not be liable for any claims resulting from (i) Subscribers’ unauthorised use of the Platform, (ii) Subscribers’ or any third Party’s modification of (any parts) of the Platform, (iii) Subscribers’ unauthorised use of the Platform in combination with any non- Platform8 products or services, (iv) the nature, accuracy, completeness or legality of the Data provided by a Data Provider, (v) the use by Subscribers or any third Party of the Data, (vi) any damages directly or indirectly resulting from the use of the Data by Subscriber or its employees, consultants, subsidiaries or trading partners. The exclusions and limitations of liability under this Article shall operate to the benefit of any of Platform8’s Affiliates and subcontractors under the Terms and Conditions to the same extent such provisions operate to the benefit of Platform8.
14 Warranties and disclaimers
The Platform may be unavailable from time to time, may be offered on a limited basis, or may vary depending on your region or device. Platform8 strives to keep the Platform up and running; however, all online services suffer occasional disruptions and outages. Platform8 warrants to provide the Platform and the APIs in accordance with the service levels as set out in the applicable Service Level Agreements.
Except as expressly provided in this Article 14 and to the maximum extent permitted by applicable law, the Platform is provided “AS IS,” and Platform8 makes no (and hereby disclaims all) other warranties, covenants or representations, or conditions, whether written, oral, express or implied including, without limitation, any implied warranties of satisfactory quality, course of dealing, trade usage or practice, merchantability, suitability, availability, or fitness for a particular use or purpose, with respect to the use, misuse, or inability to use the Platform or any other products or services provided to the Subscribers by Platform8. Platform8 does not warrant that all errors can be corrected, or that access to or operation of the Platform shall be uninterrupted, secure, or error-free. Any service levels provided by Platform8 shall be provided in accordance with the instructions as set out on the Platform and under the conditions as et out in the applicable Service Level Agreement. The Subscribers acknowledge and agree that there are risks inherent to transmitting information over and storing information on the internet and that Platform8 t is not responsible and cannot be held liable for any loss or corruption of Subscribers’ Data, except for any loss caused by any attributable negligence or default of Platform8.
Subscribers acknowledge to solely use the Platform in accordance with
(i) the Terms and Conditions, and
(ii) any applicable legislation, rules or regulations (including any legislation regarding the transfer of Data between countries).
Subscribers agree that any use of the Platform contrary to or in violation of these representations and warranties shall constitute unauthorised and improper use of the Platform for which Platform8 cannot be held liable.
The Subscriber warrants that they are the owner of the Data uploaded by the Subscriber or that he has the necessary rights, licenses or permissions to make such Data available in accordance with these Terms and Conditions. The Subscriber warrants that such Data does not contain any restrictions such as confidentiality, privacy/personal information, sensitive data or other restrictions which would cause the use of the Data as permitted under these Terms and Conditions to breach any rights of third parties or applicable laws.
A Subscriber shall only be liable for any errors, malfunctions or inaccuracies in the Data provided on the Platform and will only be held liable for any errors or inaccuracies in enrichments or ameliorations of such Data to the extent specific, explicit warranties were given by such Subscriber on the accuracy of the Data or its enrichments or ameliorations in the API Specific Terms.
15.1 IPR Indemnification
Platform8 hereby agrees to indemnify and hold harmless Subscribers and its current and future Affiliates, officers, directors, employees, agents and representatives from each and every demand, claim, loss, liability, or damage of any kind whatsoever, including reasonable attorney’s fees, whether in tort or in contract, that it or any of them may incur by reason of, or arising out of, any claim by any third Party
based on an infringement of the IPR of such third Party by the Platform and excluding any claims resulting from
(i) Subscriber’s unauthorised use of the Platform;
(ii) any Data provided by a Data Provider;
(iii) Subscribers’ or any third Party’s modification of any of the Platform; and
(iv) any Application running on the Platform developed by an Application Developer.
Such indemnity obligation shall be conditional upon the following:
(i) Platform8 is given prompt written notice of any such claim;
(ii) Platform8 is granted sole control of the defense and settlement of such a claim;
(iii) upon Platform8 ’s request, the Subscribers fully cooperate with Platform8 in the defense and settlement of such a claim, at Platform8’s expense; and
(iv) the Subscribers make no admission as to Platform8’s liability in respect of such a claim, nor do the Subscribers agree to any settlement in respect of such a claim without Platform8’s prior written consent. Provided these conditions are met, Platform8 shall indemnify the Subscribers for all damages and costs incurred by the Subscribers as a result of such a claim, as awarded by a competent court of final instance, or as agreed to by Platform8 pursuant to a settlement agreement.
In the event the Platform, in Platform8 ’s reasonable opinion, is likely to or becomes the subject of a third-Party infringement claim (as per Article 15.1), Platform8 shall have the right, at its sole option and expense, to:
(i) modify the ((allegedly) infringing part of the) Platform so that it becomes non-infringing while preserving materially equivalent functionalities;
(ii) obtain for the Subscribers a license to continue using the Platform in accordance with the Terms and Conditions; or
(iii) terminate the Terms and Conditions and refund to the Subscribers an amount equal to a pro rata portion of the fees for that portion of the Platform which is the subject of such infringement.
15.2 Indemnification by Platform8
Platform8 hereby agree to indemnify and hold harmless Subscriber and its current and future Affiliates, officers, directors, employees, agents and representatives from each and every demand, claim, loss, liability, or damage of any kind whatsoever, including reasonable attorney’s fees, whether in tort or in contract, that it or any of them may incur by reason of, or arising out of, any claim by any third party with respect to:
(ii) any breach by Platform8 of its warranties pursuant to Art. 14; and
(iii) fraud, intentional misconduct, or gross negligence committed by Platform8.
15.3 By Subscribers
Subscribers hereby agree to indemnify and hold harmless Platform8 and its current and future Affiliates, officers, directors, employees, agents, suppliers, licensors and representatives from each and every demand, claim, loss, liability, or damage of any kind whatsoever, including reasonable attorney’s fees, whether in tort or in contract, that it or any of them may incur by reason of, or arising out of, claims by any third Party with respect to:
(iv) any breach or violation by Subscribers of any provisions of the Terms and Conditions;
(v) any Data or Apps violating any IPR of a third party;
(vi) any breach by Subscriber of its warranties pursuant to Art. 14 and
(vii) caused by fraud, intentional misconduct, or gross negligence committed by Subscribers.
16 Term and termination
The Account may be terminated by the Subscriber at any time upon written notification to Platform8 without any justification.
Unless terminated by Platform8 or a Subscriber, the Account is provided for an indefinite term. The Subscriber may terminate its Account through the Platform or by providing written notice to Platform8. Platform8 may terminate the Account for convenience by giving a notice period of three (3) months.
16.3 Termination for breach
Platform8 may terminate with immediate effect the Subscriber’s right to access and use of the Platform
(i) if Platform8 has reasonable grounds to suspect that such Subscriber is violating the Terms and Conditions (including but not limited to any violation of the IPR of Platform8) or any other guidelines or policies issued by Platform8, or
(ii) if such Subscriber remains suspended for non-payment for more than 60 (sixty) days.
16.4 Effects of termination
Upon the termination of the Account for any reason whatsoever in accordance with the provisions of the Terms and Conditions, at the moment of effective termination:
(i) the Subscribers will no longer be Authorised to access or use the Platform;
(ii) Platform8 may delete all Data associated with Subscriber’s Account, including but not limited to the Data, on the Platform; and
(iii) all rights and obligations of Platform8 or Subscriber under the Terms and Conditions shall terminate, except those rights and obligations under those Articles specifically designated in Article 17.2.
17.1 Force Majeure
A Party shall not be liable for any failure or delay in the performance of its obligations with regard to the Platform if such delay or failure is due to causes beyond its control, including but not limited to acts of God, war, strikes or labour disputes, embargoes, government orders, telecommunications, network, computer, server or Internet downtime, unauthorised access to Platform8’s information technology systems by third Parties or any other cause beyond the reasonable control of Platform8 (the “Force Majeure Event”). Platform8 shall notify Subscriber of the nature of such Force Majeure Event and the effect on our ability to perform our obligations under the Terms and Conditions and how Platform8 plans to mitigate the effect of such Force Majeure Event.
Articles 8, 9, 13, 14, 15 and 17 (where applicable) shall survive any termination or expiration of these General Terms and Conditions.
17.3 Governing law and jurisdiction.
The Terms and Conditions shall be exclusively governed by and construed in accordance with the laws of New Zealand, without giving effect to any of its conflict of law principles or rules.
If an update affects a Subscriber’s use of the Services or legal rights as a User of the Platform, Platform8 will notify such Subscriber(s) prior to the update’s effective date by sending an email to the email address associated with the Account or via an in-product notification. These updated Terms and Conditions will be effective no less than 15 days from the notification.
If a Subscriber does not agree to the updates made, the Subscriber may cancel its Account before the new Terms and Conditions become effective. By continuing to use or access the Platform after the updates come into effect, the Subscriber agrees to be bound by the revised Terms and Conditions.
17.5 Fair Use Policy
We may apply our Fair Use Policy where, in our reasonable opinion, your usage of our Platform is excessive and/or unreasonable as detailed below:
(i) If your usage of our Platform materially exceeds the range of estimated use patterns or is likely to damage or negatively impact the operation of our network, we will consider your usage to be excessive and/or unreasonable. We may contact you to advise you that your usage is in breach of our Fair Use Policy, and request that you stop or alter your usage to come within our Fair Use Policy.
(ii) If your excessive or unreasonable usage continues after receipt of a request to stop or alter the nature of such usage, we may without further notice restrict, suspend or cancel your Subscription.
(iii) We may take service protection measures to throttle use of or disable services whilst abnormal or excessive usage patterns are investigated.
Last updated 2/12/2022