These Terms were last updated on 20 July 2018.
“Confidential Information” includes all information exchanged between You and LINQ, 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 of us.
“Data” means any data inputted by You or with Your authority into the LINQ Service.
” Fee” means the monthly (or, in the case of an annual subscription, annual) fee (excluding any taxes and duties) payable by You in accordance with clause 4 of this Agreement for the use of the Service at the rates set out in LINQ’s Fee Schedule, available on request (which Fee Schedule LINQ may change from time to time on one month’s notice to You).
“Intellectual Property Right” means all vested contingent and future intellectual property rights including but not limited to any copyright, trademarks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up, database rights and any applications for the protection or registration or these rights and all renewals and extensions thereof existing in any part of the world to which LINQ may be entitled.
“LINQ” means LINQ Limited, a New Zealand registered company which owns and provides the LINQ Service.
A reference to a “person” includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a state and an agency of state, in each case, whether or not having a separate legal personality.
“Personal Information” means information about an identifiable individual as set out in the Privacy Legislation.
“Privacy Legislation” means the Privacy Act 1993 (New Zealand) and equivalent privacy legislation in any other jurisdiction.
“Service” means the LINQ application service made available from time to time by LINQ via the Website.
“Subscriber” means the person who registers to use the Service, and, where the context permits, includes any person on whose behalf the Subscriber registers to use the Service.
“Subscriber Organisation” means the organisation on behalf of which the Subscriber has registered to use the Service.
“Website” means the Internet site at the domain www.linq.it or any other site operated by LINQ including customer application domains at [customer].linq.it
“You” means the Subscriber Organisation and all users of the LINQ Service within that Subscriber Organisation. “Your” has a corresponding meaning.
2. License to use Service
2.1 LIMITED LICENSE:
In consideration of payment by You of the Fees in accordance with clause 4, LINQ grants You a license to access and use the Service via the Website for the term of Your subscription. This right is revocable, non-exclusive, non-transferable, and limited by and subject to these Terms.
2.2 USER ROLES:
In particular, Your access to and use of the Service will depend on the Subscriber Organisation’s subscription type, and on Your user role within the Subscriber Organisation. You acknowledge and agree that within a Subscriber Organisation, the Subscriber Organisation Administrator:
- determines what level of user role access is granted to users;
- is responsible for all users’ use of the Service; and
- controls each user’s level of access to the Service.
Any dispute between a Subscriber Organisation Administrator and a user regarding access to the Service is a matter for the Subscriber Organisation and not for LINQ.
3. Your obligations
3.1 USE FOR BUSINESS PURPOSES:
You must only use the Service for Your own business purposes, in accordance with these Terms, the law and any notice given by LINQ from time to time.
If LINQ has authorised You to do so, You may use the Service in order to provide services to other persons but you must ensure that all persons for whom or to whom you provide those services comply with and accept these Terms. In particular, if You are party to a Consultant Partner Agreement with LINQ, You may use the Service in accordance with that Agreement, provided that You ensure that Your clients or customers comply with and accept these Terms.
3.2 PASSWORDS AND SECURITY:
You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify LINQ of any unauthorised use of Your passwords or any other breach of security and take all other actions that LINQ reasonably deems necessary to maintain or enhance the security of LINQ’s computing systems and networks and Your access to the Services.
3.3 USE OF COMMUNICATION TOOLS:
LINQ may make communication tools available through the Website (such as forums, chat rooms or message centres). You must exercise caution when using the communication tools available on the Website. You agree to use such communication tools only for lawful purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Service, including (but not limited to): offers of goods or services for sale, 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 (including material that is protected by copyright or trade secrets which You do not have the right to use). You must not make any communication in the name of or on behalf of a Subscriber Organisation or other person unless You are authorised to do so.
LINQ is under no obligation to monitor or moderate the communications on the Website, nor to verify that the communications on the Website are legitimate or authorised. However, LINQ reserves the right to remove any communication at any time in its sole discretion.
3.4 RESTRICTED ACTIVITIES:
* not attempt to undermine the security or integrity of LINQ’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
* not use, or misuse, the Service in any way which may impair the functionality of the Service or Website, or other systems used to deliver the Service or impair the ability of any other user to use the Service or Website;
* not attempt to gain unauthorised access to any Data or materials other than those to which You have been given express permission to access or to the computer system on which the Service are hosted;
* not transmit, or input into the Website, 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 You do not have the right to use); and
* not license, sublicense, resell, transfer, assign, distribute or otherwise commercially exploit the Service or its content or the software underlying the Service or the Website in any way including to modify or make derivative works based on the Service or its content; nor reverse engineer or access the Service in order to build a product or service using similar ideas, features, functions or graphics; copy any ideas, features, functions or graphics.
3.5 YOUR LOGO
LINQ Ltd reserves the right to use Your logo on the LINQ website to promote You as a customer of LINQ, unless explicitly requested not to by You through the procurement process.
4.1 PAYMENT OBLIGATION:
You agree to pay the Fees for Your use of the LINQ Service in accordance with this clause 4.
The Fees payable for the use of the Service are available on request by emailing email@example.com. The Fees payable by You will comprise the Core Fee and additional Fees for any Solver Packs to which You subscribe.
Your billing currency shall be based on the Country in which Your organisation is based.
If You use the Service to provide services to other persons, You must pay the Fee specified in the Fee Schedule for each other client, organisation or person to whom You provide Your services
4.3 ANNUAL FEE – PREPAY (PP):
LINQs standard payment mechanism is a prepaid annual subscription rate based on purchase order / invoice.
An invoice for Your subscription to LINQ will be issued annually based on the date LINQ grants the Subscriber Organisation Administrator access to Your LINQ account. The invoice will specify the term of the subscription. LINQ will continue invoicing You annually until this Agreement is terminated in accordance with clause 9.
All LINQ invoices will be sent to You, or to a Billing Contact whose details are provided by You, by email. Invoices are payable within 10 days of the invoice date (“Due Date”). You must pay or arrange payment of all amounts specified in any invoice by the Due Date. You are responsible for payment of all GST and other taxes and duties in addition to the Fees.
4.4 MONTHLY FEE – PAY AS YOU GO (PAYG):
Alternatively, on request, you may choose a monthly, pre-paid ‘pay as you go’ transaction, paid directly to LINQs bank account based on the issue of an invoice stating a monthly payment.. The day of the first month’s payment (e.g. the 21st) shall become the latest day that the subsequent months’ payments shall be made. This is referred to as the monthly recurrence date.
In the event that the initial receipt date is between the 29th and 31st day of the month, the monthly recurrence date shall be the end of the month.
Subsequent payment shall be made automatically each calendar month on the working day prior to the monthly recurrence date. LINQ will not send You a reminder prior to the monthly recurrence date; it is Your responsibility to ensure timely recurring payment.
4.5 CONSULTING PARTNER FEE
The fee to join the LINQ Partner Programme as a Consulting Partner for 12 months is one-month subscription fee. This entitles you to access a Business Development LINQ Account which may be used to learn how to apply LINQ, to create content as a response to requests for work and other non-fee earning Presales activities.
As a Consulting Partner. You may upgrade Your account so that You are able to apply LINQ internally by subscribing according to the fees described in 4.3 and 4.4.
4.6 LINQ ACCOUNT PARKING
A LINQ Client or Partner may choose to park a LINQ account for a 90% discount on the monthly LINQ subscription fee. “Parking” means the LINQ account is put into a non-accessible state so that Data and Users may be preserved until such time that access is required, at which point the LINQ account may be reactivated for the full monthly fee, or payment of an annual subscription.
4.7 LINQ for INDIVIDUALS
4.8 BILLING EVENTS
A billing event is a change to Your LINQ subscription which will cause the issue of an additional invoice against Your account. These currently fall into two categories:
- Consulting Partner Accounts:
- The increase or decrease in the number of users to a subsequent block of ten, e.g. from ten to eleven users, or from twenty-one to twenty users
- Direct Customer Accounts:
- Increased usage of LINQ requiring more LINQ Editors than currently supported by your subscription level.
Based on your billing frequency, i.e. monthly or annually, the invoice generated will be for each monthly period, or pro rata to your annual anniversary date.
4.9 UNPAID FEES:
If any amount payable by You remains unpaid for 14 days after the Due Date, LINQ may suspend Your access to and use of the Service without giving notice to You. Suspension of the Service will not relieve You from having to pay any amount due and owing to LINQ or restrict any other right or remedy of LINQ.
4.10 FEE DISPUTES:
LINQ shall use its best endeavours to resolve any dispute it may have with You concerning an invoice within 60 days of being advised by You that there is a dispute. You must make payment of all amounts which are not disputed in good faith by the Due Date.
5. Confidentiality and Privacy
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
- Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with the Service or 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.
- The provisions of this clause shall not apply to any information which:
- a) is or becomes public knowledge other than by a breach of this clause;
- 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 without access to the Confidential Information.
This clause applies only where the Data incorporates any Personal Information. LINQ agrees:
a) to comply with all applicable Privacy Legislation;
b) not to do any act or engage in any practice that would breach any provision of the Privacy Legislation;
d) to notify You immediately if it becomes aware of a breach or possible breach of any of the obligations contained in, or referred to in, this clause.
6. Intellectual Property
Title to, and all Intellectual Property Rights in the Service, the Website and any documentation relating to the Service remain the property of LINQ (or its licensors).
6.2 OWNERSHIP OF DATA:
Title to, and all Intellectual Property Rights in, the Data that You have entered into the Service remain Your property. However, Your access to the Data through the Service is subject to payment of LINQ’s invoices by the Due Date.
You grant LINQ a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Service and for any other purpose related to provision of services to You.
6.3 BACKUP OF DATA:
LINQ 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. LINQ expressly excludes liability for any loss of Data no matter how caused.
6.4 ACCURACY OF DATA:
You are responsible for the accurate input of Your Data into the Service.
6.5 NO OBLIGATION TO RETAIN DATA AFTER TERMINATION:
You acknowledge that LINQ has no obligation to retain Your Data after termination of the provision of the Service to You, and it may, accordingly, delete Your Data without notice to You.
6.6 DELETION OF DATA:
With effect from termination, You will not be able to access the Service nor any of Your Data
LINQ will delete all LINQspaces associated with Your account
Your Data will continue to be held by LINQ in our backups for as long as those backups are retained, but You will not be able to access this Data
Although Your Data will be retained in our backups for a time, it will not be accessible by LINQ or third parties.
7. Warranties and Acknowledgements
You warrant that where You have registered to use the Service on behalf of another person, You have the authority to do so and agree that by registering to use the Service You bind that person.
You acknowledge that:
a) If You use the Service or access the Website on behalf of or for the benefit of another person, you agree that:
i. You are responsible for ensuring that You have the right to do so;
ii. It will be for You to determine which Users will be given access to the Service (and Your Data), and You agree that LINQ has no obligation to provide any person access to the Service (and Your Data) without Your authorisation and may refer any requests for authorisation to You to address; and
iii. You will indemnify LINQ against any claims or loss relating to:
- LINQ’s refusal to provide any person access to the Service (or Your Data) in accordance with these Terms,
- LINQ’s making available the Service (or Your Data) to any person with Your authorisation.
b) LINQ has no responsibility to any person other than You and nothing in these Terms confers, or purports to confer, a benefit on any person other than You.
c) It is Your responsibility to determine that the Service meets the needs of Your business and is suitable for the purposes for which they are used.
d) LINQ will make every reasonable effort to ensure that You receive uninterrupted and error free access to the Service and Your Data, but LINQ does not warrant that the use of the Service will be uninterrupted or error free. 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 Service. LINQ is not in any way responsible for any such interference or prevention of Your access or use of the Service.
- that it has the right to supply the Service; and
- that the Service will perform in accordance with the descriptions of the Service contained in material provided by LINQ.
To the extent permitted by law, all other warranties (whether express or implied by law) are excluded. including (without limitation) warranties of merchantability and fitness for purpose.
7.4 CONSUMER GUARANTEES:
You warrant and represent that You are acquiring the right to access and use the Service for the purposes of a business and that, 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 Service, the Website or these Terms.
You indemnify LINQ against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to pay to LINQ, including (but not limited to) any costs relating to the recovery of any Fees that are due but have not been paid by You.
8. Limitation of Liability
8.1 LINQ’s liability to You for a breach of warranty or for any other claim arising under or in connection with the Service shall be limited to the lesser of an amount equal to the Fees paid by You to LINQ in the 12 months prior to the date of breach and the sum of NZD16,800
8.2 Except at set out in clause 8.1, to the maximum extent permitted by law, LINQ excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence) or otherwise for any loss or damage resulting, directly or indirectly, from any use of or reliance on the Service or Website.
8.3 Neither You nor LINQ shall be liable for any special, incidental, consequential or indirect loss under or arising out of these Terms or any use of or reliance on the Service or Website, including loss of Data, loss of income, profit or savings, whether or not such damages where foreseeable or contemplated and whether arising under contract, negligence, strict liability or any other legal or equitable basis.
9.1 NO-FAULT TERMINATION:
Where You are paying Fees on a monthly basis, You can terminate these Terms and Your use of the Service at any time by giving 30-days written notice to LINQ, in which case these Terms will terminate immediately, but You will not be entitled to a refund of Fees paid in respect of that month.
Where You are paying Fees on an annual basis, You can terminate these Terms and Your use of the Service at any time before Your next annual Fee is payable, but at least within 60-days of your subscription renewal date, by giving written notice to LINQ, in which case these Terms will terminate on the last day of its current annual term. You will not be entitled to a refund of Fees for the remainder of the current annual term, regardless of when you terminate.
a) You breach any of these Terms (including by non-payment of any Fees), the breach is capable of being remedied but You do not remedy the breach within 14 days after receiving notice of the breach;
b) You breach any of these Terms and the breach is not capable of being remedied;
c) You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed over any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,
LINQ may, in its sole discretion, take any or all of the following actions:
d) Terminate this Agreement and Your use of the Service and the Website;
e) Suspend for any definite or indefinite period of time, Your use of the Service and the Website;
f) Suspend or terminate access to Your Data.
g) Take any of the above actions in respect of any or all other persons whom You have authorised to have access to the Service.
9.3 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. In particular, despite termination of these Terms You will remain liable for any accrued Fees or other amounts due to LINQ.
9.4 EFFECT OF TERMINATION:
On termination, Your licence to access and use the Service and the Website shall cease immediately.
9.5 TERMS THAT SURVIVE:
Clauses 3.4, 4, 5, 6, 7, 8 and 11 survive the expiry or termination of these Terms.
10. Help Desk
10.1 TECHNICAL PROBLEMS:
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting LINQ. If You still need technical help, please check the support provided online by LINQ on the Website or failing that email us at firstname.lastname@example.org.
10.2 SERVICE AVAILABILITY:
Whilst LINQ intends that the Service will be available 24 hours a day, seven days a week, it is possible that on occasions the Service or Website may be unavailable to permit maintenance or other development activity to take place.
If for any reason LINQ has to interrupt the Services for longer periods than normal, LINQ will use reasonable endeavours to give notice of such interruption on the Website.
11.1 ENTIRE AGREEMENT:
These Terms, together with the LINQ Ltd. Privacy Policies (www.linq.it/app-privacy-policy/ ) and the terms of any other notices or instructions given to You by LINQ, set out the entire agreement between You and LINQ relating to Your use of the Service. These Terms supercede any prior agreement or understanding whether oral or written relating to the Service.
A party’s failure or delay to exercise any power or right it has under these Terms will not operate as a waiver of that power or right, and the exercise of any such power or right will not preclude any other or future exercise of that power or right. A waiver of, or consent by a party to any departure from, any term of these Terms must be in writing and signed by or on behalf of the party giving it and is effective only to the extent for which it is given.
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.
11.4 NO ASSIGNMENT:
You may not assign or transfer any rights in relation to the Service to any other person without LINQ’s prior written consent.
11.5 GOVERNING LAW AND JURISDICTION:
These Terms are governed by New Zealand law and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
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 these Terms will be binding on the parties.
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 LINQ must be sent to email@example.com or to any other email address notified by email to You by LINQ. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
11.8 RIGHTS OF THIRD PARTIES:
LINQ has no responsibility to any person other than You and nothing in these Terms confers, or purports to confer, a benefit on any person other than You.