By accepting these Terms (by clicking a box indicating your acceptance) you agree to comply with the terms and conditions set out in these Terms. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its Affiliates to these Terms, in which case the terms “You” or “Your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these Terms, you must not confirm (in the manner required by us) that you have accepted these Terms and may not use CLARC.
“Confidential Information” means all information (that is not publicly known) disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information includes our Intellectual Property. Your Confidential Information includes Your Data.
“Fees” means any fees charged by us in relation to CLARC.
“Guest” means an individual who will use the CLARC tool to receive shared information for a limited time without signing up in cases where information is shared between that Guest and a Permitted User via CLARC.
“Intellectual Property Rights” includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
“Loss or Claim” means any loss, liability, action, proceeding, damage, cost or expense (including all reasonable legal costs and expenses), including liability in tort and consequential and economic losses.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“NON-CLARC Application “means any other third-party software i.e. applications that can be integrated with CLARC.
“Objectionable” includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
“Personal Information” means that term as defined in the Privacy Act 1993. Basically, this is information about an identifiable individual.
“Permitted User” means an individual who is authorised to use CLARC and to whom we have at your request supplied a user identification and password for the purpose of using CLARC and includes any business accounts and individual client accounts which are activated by you in accordance with our instructions.
“We,” “Us” or “Our” means CLARC Limited, New Zealand Company Number 8138281.
“CLARC” means the CLARC cloud management system and associated user documentation. For the avoidance of doubt, CLARC includes any modules or other add-ons to CLARC which you may purchase from us from time to time.
“You” or “Your” means you, the company or other legal entity for which you are accepting this Agreement.
“Your Data” means all data, content and information (including Personal Information) owned, held, used or created by you and which is stored using CLARC.
2. LICENCE TO USE
2.1 The Licence
We are the exclusive owner of CLARC. You are granted the non-exclusive, non-transferable, right to use CLARC in accordance with the terms contained in these Terms.
2.2 No sub licence or transfer
You must not sub-licence, novate or transfer any of your rights or obligations under these Terms.
3. GENERAL TERMS
3.1 Protecting your username and password
Unless you take adequate security precautions, it could be possible for an unauthorised person to gain access to Your Data. It is your responsibility to ensure that your passwords remain secure and confidential. If your password is compromised you must reset your password from within CLARC. You agree to be liable if your login details are used by an unauthorised person.
3.2 Your Responsibilities
a) No interference with CLARC – You will not:
1. Reverse‐engineer, reverse‐assemble, decompile, or otherwise attempt to discover source code, formulae or processes in respect of the software behind CLARC;
2. Copy, reproduce, alter, modify, create derivative works, or publicly display, any part of any content from CLARC;
3. Use CLARC in way that is prohibited by law, regulation or government order in any relevant jurisdiction, or in a way that violates a third party’s legal rights;
4. Remove, modify, and tamper with any regulatory or legal notice or link that is incorporated into CLARC;
5. Use CLARC for any other reason other than for its intended purposes;
6. Impersonate another person or misrepresent authorisation to act on behalf of others or us;
7. Attempt to view, access or copy any material or data other than:
i that which you are authorised to access; and
ii to the extent necessary for you to use CLARC in accordance with these Terms; and
8. Use CLARC in a manner, nor transmit, input or store any data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.
3.3 Permitted Users
You must ensure that no individual other than a Permitted User may access or use CLARC. If you hold a business account you may invite your personnel to be Permitted Users. Each new Permitted User invited by you must provide us with the their name and other information that we reasonably require in order for them to be confirmed as a Permitted User. You must procure each Permitted User’s compliance with these Terms. You are responsible for any breach of these Terms by a Permitted Users that has been authorised by you.
3.4 Use of CLARC and our intellectual property
a) We retain our Intellectual Property Rights – except where specifically set out in these Terms, these Terms do not give you any Intellectual Property Rights or other rights in CLARC and you (including your staff, agents or contractors) must not otherwise use, reproduce or modify our Intellectual Property.
b) Third Party Intellectual Property Rights – These Terms do not give you any intellectual property or other rights in any of the software or other intellectual property supplied by any third party as a part of CLARC , and you (including your staff, agents or contractors) must not otherwise use, reproduce or modify this Intellectual Property.
3.5 Guest Use
Guests may access data shared to them by you or a Permitted User via an email link. This data will only be made accessible for a limited time of 30 days, during which the Guest can view, confirm and download the file. After this time as ended the data will no longer be able to be viewed unless the Guest has downloaded it.
If the Guest chooses to stop being a Guest and sign up to become a Permitted User then the data will be stored within their account and made available to them so long as they continue to be a Permitted User.
4. YOUR OBLIGATIONS
4.1 Your Responsibilities: You will
a) Be responsible for the accuracy, quality and legality of Your Data and the means by which you acquired Your Data;
b) Use commercially reasonable efforts to prevent unauthorised access to or use of CLARC and notify us promptly of any such unauthorised access or use;
c) Use CLARC only in accordance with these Terms and applicable laws and government regulations;
d) Ensure that when sharing documents via CLARC with Guests that, the Guests must agree to these Terms (in the manner required by us).
4.2 As a Permitted User, You agree to your business logo being displayed on the CLARC website and in sales and marketing materials stating that You are a CLARC customer.
4.3 These Terms are personal to you. You may only use CLARC for your internal requirements. You shall not rent, lend, lease, license, time-share or otherwise grant access CLARC to persons who are not Permitted Users. You shall not allow third parties to use, or otherwise have access to CLARC.
5. OUR RESPONSIBILITIES
5.1 Availability of CLARC. We will use commercially reasonable efforts to ensure that CLARC is available 24 hours a day, 7 days a week, except for:
a) Planned downtime (of which we shall give advance notice); and
b) Any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, global pandemic, civil unrest, act of terror, strike or other labour problem (other than one involving Our employees), Internet service provider failure or delay.
5.2 Protection of Your Data. We will use commercially reasonable efforts to maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. In the event that Your Data is lost, it is your responsibility for maintaining copies of Your Data entered into CLARC.
5.3 No Compensation: For any downtime, access issues or data loss, your only recourse is to terminate your licence to use CLARC through the correct termination procedure in clause 14.
6.1 Subscriptions: Unless otherwise provided:
a) Access to CLARC is purchased as a subscription;
b) Subscriptions for Permitted Users may be added and the additional licence fee will be payable; and
c) any added subscriptions (for Permitted Users) will terminate on the same date as your underlying subscriptions.
6.2 Trial Period: Upon registration with CLARC you may opt to sign up on a trial period. The trial period will be a period that is specified at the time of registration. You will be required to input your payment details at the end of the trial period if you choose to carry on with a CLARC Subscription.
6.3 Minimum Term: Your CLARC subscription has a minimum term of one month.
6.4 Future Functionality. You agree that your subscription to use CLARC is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
7. NON-CLARC APPLICATIONS
7.1 Non-CLARC Applications. Any third party applications or products (“Non-CLARC Applications”) used in CLARC or made available by us are subject to terms and conditions and privacy notices set by their providers. These include how the provider will use Your Data that you make available to them. Be sure to read and make sure you agree to their terms and conditions and understand their approach on personal and non-personal data before you connect to them. The descriptions of third-party products that we publish, and any associated links, have been provided to us by the providers. While we make reasonable efforts to check the accuracy of the descriptions, the providers are solely responsible for any representations contained in those descriptions. We do not endorse or assume any responsibility for third-party products.
7.2 Integration with Non-CLARC Applications. CLARC may contain features designed to interoperate with Non-CLARC Applications. To use such features, you may be required to obtain access to such Non-CLARC Applications from their providers and may be required to grant us access to your account(s) on such Non-CLARC Applications. We cannot guarantee the continued availability of such features, and may cease providing them without entitling you to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-CLARC Application ceases to make the Non-CLARC Application available for interoperation with the corresponding features in a manner acceptable to us. CLARC cannot guarantee that data that is exported and/or imported by CLARC that has been provided Non-CLARC applications will always be available and accessible. CLARC will not be liable for any malfunctioning of services due to issues caused by connections with Non-CLARC applications.
7.3 No-charge or beta service We may from time to time offer a service at no charge for example a beta service or trial period to another product or service developed by us or a third party. You agree that you use these services completely at your own risk.
8. FEES AND PAYMENTS
8.1 Fees. You will pay all fees specified in www.clarc.co/landing/pricing/. Fees based on pricing plans and term at the time, which may change without notice. Except as otherwise specified in these Terms:
a) fees are based on your subscription fee as specified in the Pricing Plan;
b) payment obligations are non-cancellable and fees paid are non-refundable unless we have made a mistake. If this happens, please contact us as soon as possible;
c) payments are made at the beginning of the subscription term and recurring payments will cover the following subscription term;
d) the fee price and structure may be changed at any time. In the event that there is a change in fees, the change will apply to the following term and will be charged on the next payment. The change will not be applied to a current subscription term;
e) if the number of Permitted Users is decreased during the relevant subscription term, subscription fees will remain unchanged until the end of the relevant subscription term. Only once the subscription term renews will the subscription fee reflect the reduced number of Permitted Users; and
f) Adding additional Permitted Users to your subscription will incur an additional fee as specified in www.clarc.co/landing/pricing/ from the time that the Permitted User is added and this increase will continue to be payable until your Clarc subscription is ended in accordance with this agreement.
All payments due to us (e.g. our fees), unless already stated to be GST inclusive, are to be increased by the amount of any GST liability we have in relation to supplies we make to which those payments relate.
8.2 Invoicing and Payment: You will provide us with valid and updated credit card information, you authorise us to charge such credit card for subscription you have purchased for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, either monthly or in accordance with any different billing frequency agreed to. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.
8.3 Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting our rights or remedies, those charges may accrue a late administrative fee of up to 15% of the overdue payment to be paid at our discretion.
8.4 Suspension of Access. If any amount is owing by you, we may, without limiting our other rights and remedies, immediately suspend you and your Permitted Users’ and Guests access to CLARC until such amounts are paid in full. Your account and relevant information held by us will be retained for 90 days after Your account is suspended. If payment for the amount owing is paid within 90 days your account will be reactivated with the existing data. If payment of the amount owing is not received within 90 days of your account being suspended, your account with us will be terminated and its data will be permanently deleted.
8.5 Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section 8.5, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against us based on our income, property and employees.
9. PROPRIETARY RIGHTS AND LICENSES
9.1 Reservation of Rights. Subject to the limited rights expressly granted in these Terms, we reserve all of our right, title and interest in and to CLARC, including all of our related intellectual property rights. No rights are granted to You here under other than as expressly set out in these Terms.
9.2 License to Host Your Data and Applications. You grant us, our Affiliates and applicable contractors a license to host, copy, transmit and display Your Data, as reasonably necessary for us to provide you with access to and use of CLARC in accordance with these Terms. We acquire no right, title or interest from you under these Terms or to any of Your Data and/or Non-CLARC Application.
9.3 License to Use Feedback. You grant to us and our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use any suggestion, enhancement request, recommendation, correction or other feedback provided by you or Permitted Users relating to the operation of CLARC.
9.4 Keeping it confidential: While using if you or CLARC, you may share Confidential Information with us, and you may become aware of Confidential Information about us. You and we both agree to take reasonable steps to protect the other party’s Confidential Information from being accessed by unauthorised individuals. While using CLARC you may also share Your Confidential Information with other Permitted Users and Guests. You are not permitted to share other Permitted Users’ and Guests Confidential Information with any unauthorised individual. Any Permitted User or Guest who breaches this clause 10.1 will have their access to CLARC and their CLARC accounts immediately and permanently terminated from CLARC. CLARC is not liable for any breaches of confidentiality caused by You or any other Permitted User. You or We may share each other’s Confidential Information with legal or regulatory authorities if required to do so.
10. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
10.1 Disclaimer of warranties: Except as expressly provided, CLARC is made available to you on an “as is” basis. We disclaim all warranties, express or implied, including any implied warranties of non-infringement, merchantability and fitness for a particular purpose. We do not warrant that CLARC will be compatible with every digital device and every operating environment. It is your responsibility to ascertain whether CLARC is compatible with your computer and operating environment. We do not warrant that CLARC will be secure, free of viruses or other harmful code, uninterrupted or error free. You agree that we are not in the business of providing advice, any information we provide is not to be seen as a substitution for professional advice and we are not liable in any way for such information which is given to you by us.
10.2 Consumer Guarantees Act 1993 and Fair Trading Act 1986: You agree that you are in trade and have subscribed for CLARC for the purposes of a business and that the Consumer Guarantees Act and section 9, 12 and 14 of the Fair Trading Act 1986 do not apply and that it is fair and reasonable that the parties are bound by these Terms.
11. LIABILITY AND INDEMNITY
11.1 You indemnify us: You indemnify us against all losses, costs (including legal costs), expenses, demands or liability that we incur arising out of, or in connection with, a third-party claim against us relating to your or your Permitted Users’ use and any breach by you of these Terms of CLARC or any third-party product (except as far as we’re at fault).
11.2 Limitation of liability: Other than liability that cannot be excluded or limited by New Zealand law, our liability to you in connection with our services or these terms, in contract, tort (including negligence) or otherwise, is limited as follows:
a) We have no liability arising from your use of CLARC for any loss of revenue or profit, loss of goodwill, loss of customers, loss of capital, loss of anticipated savings, legal, tax or accounting compliance issues, damage to reputation, loss in connection with any other contract, or indirect, consequential, incidental, punitive, exemplary or special loss, damage or expense.
b) We shall not be liable for any delay, damage, loss, injury, failure or breakdown that you may suffer as a consequence of any defect or deficiency in CLARC, including any delay, damage, loss, injury, failure or breakdown to your other programs and equipment.
c) For loss or corruption of your data, our liability will be limited to taking reasonable steps to try and recover that data from our available backups.
d) Our total aggregate liability to you in any circumstances is limited to the total amount you paid us for your subscription in the 12 months immediately preceding the date on which the claim giving rise to the liability arose.
12. USE OF YOUR DATA
12.1 When you enter or upload Your Data into our services, we do not own that data, however you grant us the right to use that data for but not limited to the following purposes:
12.2 Communication. We may use Your Data to communicate with you. This may include:
a) providing you with information you have requested from us or information we are required to send to you;
b) operational communications, like changes to our websites and services, security updates, or assistance with using our websites and services;
c) marketing communications;
d) asking you for feedback or to take part in any research we are conducting (which we may engage a third party to assist with).
12.3 Support. This may include assisting with the resolution of technical support issues or other issues relating CLARC.
12.4 Enhancement of CLARC. We may track and monitor your use of CLARC so we can keep improving CLARC and optimise your user experience.
12.5 Protection. We may use Your Data for the purpose of detecting and preventing any fraudulent or malicious activity and to ensure Users are using CLARC in accordance with these Terms.
12.6 Marketing. In addition to sending you marketing communications, we may also use your personal data to display targeted advertising to you online.
12.7 Reporting. We may use the personal data we collect about you and other users of CLARC (whether obtained directly or from third parties) to produce aggregated and anonymised analytics and reports, which we may share publicly or with third parties.
12.8 Statistical Data. We may create anonymous statistical data (which will not contain any identifiable Personal Information) from Your Data and use of CLARC. This data may be used by us for our own purposes including to improve CLARC and develop other products and services, for marketing and promotional purposes and any other purposes we determine.
12.9 Security. While we will use our best efforts to protect your Data and keep it safe and secure it is impossible for us to guarantee absolute security. If we become aware that there has been unauthorised use of your CLARC account we will let you know and take steps to restrict access until we are certain that the access was not unauthorised.
12.10 Retention of Your Data once your subscription to CLARC ends (for any reason) it will be archived and no longer available to you.
Accounts that are suspended due to non-payment will have their data retained for 90 days as per clause 8.4. This data cannot be accessed while Your account remains suspended.
If you choose to end your subscription, your account data will be retained for 14 days during which time your data can be exported by you. CLARC cannot guarantee that you will be able to export all of your data. Only data that has been formatted to be compatible with our export tools can be exported. After 14 days your account and all data will be deleted.
Any information shared by you which is stored by other Permitted Users will be kept and will remain accessible by those Permitted Users and Guests.
If your account is terminated due to a breach of these Terms, CLARC reserves the right delete your account and all of its data immediately. Alternatively we may retain your data for such period as we determine in our sole discretion.
If an account that has shared a file with another Permitted User or a Guest is deleted, then the files will no longer be accessible via CLARC to the Permitted Users or Guests who the files have been shared with.
13. TERM AND TERMINATION
13.1 Licence Term. These Terms and your right to access and use CLARC commences on the date You first accept these Terms. Your subscription continues for the period covered by the subscription fee paid or payable. At the end of each billing period, these terms automatically continue for a further period of the same duration as the previous one, provided you continue to pay the subscription fee in accordance with the pricing plan.
13.2 Changes to These Terms. CLARC has the right to change these Terms at any given time. Any changes will not apply retrospectively and we will make our best efforts to inform you of any changes to these Terms. We will endeavour to provide you with 30 days’ notice of material changes before they become effective, unless immediate changes are required for purposes outside of our control. If a change is not material, we may not notify you. If you find a modified term unacceptable, you may terminate your subscription at any time and you will be charged up until then end of your subscription term provided that you cancel before the renewal date.
13.3 Termination by You. It is not possible to terminate your subscription prior to the end of your subscription term.
13.4 Termination by Us. CLARC may terminate your subscription on 30 days’ written notice without giving reason. CLARC may also terminate your subscription immediately if:
a) You breach any of these Terms and fail to remedy the breach within 14 days after receiving notice of breach;
b) You breach any of the Terms and we do not consider that the breach can be remedied. This includes any breaches of Confidentiality terms, any illegal activity or any other malicious activity towards CLARC or any other Permitted User;
c) You fail to pay subscription fees on the due date; and
d) You or your business become insolvent, your business goes into liquidation or has a receiver or manager appointed over any of its assets, You become insolvent or make any arrangement with your creditors, or become subject to any similar insolvency event in any jurisdiction.
13.5 Refund or Payment upon Termination If these Terms are terminated by you in accordance with Section 14.1 or 14.3, you will not be entitled to any refund for fees already paid and will continue to be liable for Fees up to the end of your subscription term. If these Terms are terminated by us in accordance with Section 14.4, you are not entitled to any refund for any fees already paid by you.
13.6 Promotional Offers: If you have subscribed to CLARC as a result of a promotion by us and you elect to cancel your subscription prior to the end of your subscription term, we reserve the right to charge an early termination fee equal to the amount of any discount you received under the promotion.
14.1 No person other than you and Us has any right to a benefit under, or to enforce, these Terms.
14.2 For us to waive a right under these Terms, that waiver must be in writing and signed by us.
14.3 If we need to contact you, we may do so by email or by posting a notice on https://clarc.co/ You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing email@example.com.
14.4 These Terms, and any dispute relating to these Terms or CLARC are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms or the Service.
14.5 Clauses which, by their nature, are intended to survive termination of these Terms, including Sections 3.4, 8, 9, 10, 11, 12, 13, 15.2, 15.3, 15.4, 15.6, 15.8 and 15.9, continue in force.
14.6 If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.
14.7 These Terms set out everything agreed by the parties relating to CLARC, and supersede and cancel anything discussed, exchanged or agreed prior to the commencement date of these Terms. The parties have not relied on any representation, warranty or agreement relating to CLARC that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect. Without limiting the previous sentence, the parties agree to contract out of Sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this Section 15.8.
14.8 You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.