Terms and Conditions of Service
Brilliant Assessments
Last updated 29 June 2017
1. Definitions: In these terms and conditions:
“Agreement” means the Customer Information, Selected Options, Relevant Pricing and these terms and conditions (as updated from time to time under clause 2 below);
“Customer” means the customer named in the Customer Information;
“Customer Information” means the customer name, email address and any other contact information submitted by or on behalf of a customer in the course of Registration;
“Commencement Date” means the date that the Customer completes Registration, following successful completion of Registration as confirmed by the Supplier;
“Confidential Information” means any proprietary information, know-how and data disclosed or made available by one party to the other party but does not include any information which (a) is in the public domain without any breach of the Agreement; (b) on receipt by the other party is already known by that party; (c) is at any time after the date of receipt by the other party, received in good faith by that party from a third party; (d) required by law to be disclosed by the other party;
“Data” means the Customer’s data that is entered by the Customer and processed or collected in the course of provision of the Service;
“Intellectual Property” includes all copyright, trademarks, designs, patents, domain names, concepts, know-how, trade secrets, logos and all other similar property and rights whether registered or unregistered;
“Maximum Number” means, where applicable, the maximum number chosen by the Customer as a Selected Option;
“Permitted Users” means, unless specified otherwise in the Selected Options (if any) selected by Customer or on the Website, employees, directors or contractors of the Customer not exceeding, in aggregate, the Maximum Number;
“Registration” means registration on the Website for the Customer to receive the Service;
“Relevant Pricing” means the pricing specified on the Website for provision of the Service, and where Selected Options apply, means the pricing for the Selected Options;
“Selected Options” means, if there are options to choose from for provision of the Service (which may, amongst other options, include the type of service to be provided, the maximum number of users or the term for which the Service is to be provided), the
options selected during Registration for provision of the Service;
“Service” means the Brilliant Assessments service provided by the Supplier as described in the on the various ‘What we do’ pages of the Website, as modified from time to time by the Supplier;
“Supplier” means Brilliant Assessments Limited a company registered in New Zealand;
“Systems” means, as the context permits, the software used by the Supplier to provide the Service and/or the equipment on which that software is installed or used to host the Website (whether this is the Supplier’s software or equipment or is third party software or equipment);
“Template” means a template to facilitate assessments in respect of the relevant subject matter, created by the Supplier and made available as part of the Service;
“Website” means www.brilliantassessments.com;
“Working Day” means a day that is not a Saturday, Sunday or public holiday in New Zealand.
2. Terms and conditions
2.1 The Customer accepts the terms and conditions in effect at the time of supply of the Service. It is the Customer’s responsibility to check the Website and the terms and conditions on each occasion you use the Service. The Supplier may amend or replace these terms and conditions at any time on one month’s written notification to the Customer which may be given via the Website. The Customer’s continued use of the Service confirms the Customer’s acceptance to be bound by the latest terms and conditions. Any additional or different terms that the Customer may stipulate or state in any communication with the Supplier will not be binding on the Supplier or included in the Agreement unless expressly agreed upon in writing by the Supplier.
3. Charges and payment
3.1 The Customer will pay the Relevant Pricing for the Service in accordance with the timing specified on the Website or otherwise agreed in writing (by email). All payments must be made in full without deduction or set-off.
3.2 All applicable value added taxes will be charged and payable in addition to the Relevant Pricing.
3.3 If any amount is not paid by the due date, the Supplier may suspend provision of Service until the Supplier receives payment in full of all outstanding amounts.
3.4 The Relevant Pricing may be changed by the Supplier on the Supplier giving at least six weeks’ written notice (by email) to the Customer of the new charges that will apply.
4. Term
4.1 Subject to clause 4.2, the Agreement will commence on the Commencement Date and may be terminated by the Customer at any time through the cancellation processes on the Website with the termination taking effect at the end of the month in which the Supplier confirms receipt of the Customer’s cancellation request.
4.2 Where the Customer selects a fixed term on the Website as a Selected Option (where available), the Service will be provided for that term and early termination options are not available.
5. Provision of Service
5.1 The Supplier will provide the Service to the Customer in accordance with the Agreement. The Service is provided to the Customer on a non-exclusive basis and the Customer’s right to use the Service is not transferable. The Supplier will provide log on details to the Customer to enable the Customer to access and use the Service.
5.2 The Supplier will provide email support between the hours of 8am to 5pm on Working Days for matters which relate directly to the provision of the Service.
5.3 Provision of the Service is subject to the terms and conditions of the Agreement including without limitation clause 5.4.
5.4 The Customer must not, nor may the Customer permit any other person to do any of the following, or attempt to do so:
copy, alter, modify, reverse assemble, reverse compile, reverse engineer or enhance the Systems; or
permit or enable users other than Permitted Users to access or use the Service; or
provide the Service to any users through operation of a bureau or like service; or
resell, rent, lease, transfer, sublicense or otherwise transfer rights to use the Service; or
use the Service in any way that could damage or interfere with the Systems in any way;
use the Service otherwise than in the manner in which the Service is designed to be used;
use the Service in any way (whether by transmitting or inputting any files or other material or otherwise) that could interrupt, damage or otherwise interfere with use of the Service by any other customers;
do any act which would or might invalidate or be inconsistent with the Supplier’s Intellectual Property rights.
5.5 The Customer must notify the Supplier of any actual, threatened or suspected infringement of any Intellectual Property right and of any claim by any third party that any use of the Service infringes any rights of any other person, as soon as that infringement or claim comes to the Customer’s notice. The Customer must (at the Supplier’s expense) do all such things as may reasonably be required by the Supplier to assist the Supplier in pursuing or defending any proceedings in relation to any such infringement or claim.
5.6 The Customer indemnifies the Supplier against any loss, costs, expenses, demands or liability whether direct, indirect or otherwise, and whether arising in contract, tort (including negligence), equity or otherwise, arising out of a claim by a third party alleging infringement of that third party’s Intellectual Property rights if such claim arises from infringement, suspected infringement or alleged infringement due to:
use of the Service in a manner or for a purpose or in combination with any other service or product not reasonably contemplated or authorized by the Supplier; or
a breach by the Customer of clause 5.4.
5.7 The availability of the Service is dependent on factors outside of the Supplier’s control including without limitation the availability of telecommunications networks and as such the Supplier cannot and does not warrant that the Service will be continuously available or available without interruption. The Supplier’s commitment to Service availability is described below:
the Supplier intends that the Service is available 24 hours a day seven days a week. Exceptions to this may occur for any planned maintenance, emergency maintenance or unplanned outages;
Planned maintenance: Planned maintenance will take place at times notified on the Website;
Emergency maintenance and unplanned outages – where emergency maintenance is necessary or where unplanned outages occur, this will be notified on the Website as soon as possible following this coming to the Supplier’s attention.
5.8 The Service utilizes the Amazon Web Services platform. Details of their disaster recovery plan are available from the Supplier on request.
6. Use of templates
6.1 If the Customer chooses to use a Template as part of the Service
there is no additional charge for use of the Template while the Customer is using the Service;
the Customer may change it in any way the Customer wishes. The Customer will own the Intellectual Property in all changes made to the Template by the Customer. The Supplier will retain ownership of the Intellectual Property in the Template;
the Customer accepts full responsibility for use of the Template. The Supplier does not warrant that the Template will be suitable for the Customer’s needs or that it will provide accurate results.
7. Data
7.1 The Customer warrants that the Customer has the right and authority to deal with the Data in the manner contemplated by the Agreement.
7.2 In seeking to maintain Data anonymity and confidentiality pertaining to the Data, the Supplier will not view the Data unless the Customer requires application support. Therefore, the Customer accepts full responsibility for the following:
all Data entry requirements; and
except as expressly provided otherwise in the Agreement, for all aspects of the Customer’s access and use of the Service; and
maintaining and deleting (as applicable) the respondents’ data (being part of the Data) while using the Service; and
enforcing any applicable data protection policies for your organization that help ensure data confidentiality of respondents; and
ensuring that all of the data subjects are of age to legally consent to data collection; and
acquiring the parents’ express written consent before collecting data from respondents under the age of consent; and
ensuring that, in using the Service, it complies with all applicable laws. The Supplier accepts no responsibility for ensuring that use of the Service will result in the Customer complying with applicable laws or enable the Customer to comply with applicable laws (including for example and without limitation, laws requiring records to be stored in a particular jurisdiction).
The Supplier will notify the Customer if the Supplier becomes aware of any unauthorized access or disclosure of the Data (‘Security Breach’). On receiving notification of a Security Breach, the Customer will notify the ‘relevant people’ of the Security Breach within a reasonable amount of time (‘relevant people’ being people in respect of whom information or data is included in the Data)
7.3 Nothing in the Agreement transfers ownership of the Data to the Supplier.
7.4 All Data is available to the Customer:
for the term of the Agreement, via the Service;
on request to the Supplier at any time during the term of the Agreement and for a period of one month following expiration or termination of the Agreement.
7.5. The Supplier acknowledges that it will or may be obliged to co-operate with the local and foreign authorities in the event that the Customer is found to be in violation of any applicable laws.
8. Intellectual Property
8.1 All Intellectual Property in:
the Service and the Website; and
the software, processes, methodology and know-how used by the Supplier in its performance of the Agreement;
is the property of the Supplier (or its licensors) and nothing in the Agreement operates to change that ownership.
8.2 All Intellectual Property in the Data is the property of the Customer (or its partners) and nothing in the Agreement operates to change that ownership.
9. Confidential Information
9.1 The parties recognise and acknowledge the confidential nature of the Confidential Information.
9.2 Neither party may use or disclose any Confidential Information other than:
to its employees, directors or contractors to the extent necessary in the performance of the Agreement; or
with the express prior written consent of the other party; or
to its professional advisers.
9.3 The Supplier may refer to the Customer in marketing materials.
10. Warranties
10.1 Each party warrants to the other that it has authority to enter into and perform and the ability to perform its obligations under the Agreement.
10.2 Except as expressly provided in these terms and conditions, all warranties, terms and conditions (including, without limitation, warranties and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise, are excluded to the extent permitted by law.
11. Termination
11.1 Either party may terminate the Agreement immediately if the other party:
breaches any of its obligations under the Agreement and fails to remedy the breach within 10 days of receiving notice requiring the breach to be remedied; or
becomes insolvent or goes into liquidation or has a receiver or statutory manager appointed over its assets or ceases to carry on business or makes any arrangement with its creditors.
11.2 On termination of the Agreement:
all amounts due to the Supplier will become immediately due and payable;
the Supplier will cease to provide the Service to the Customer, and the Customer will cease to have any entitlement to use the Service;
the provisions of the Agreement that are by their nature intended to survive termination will remain in full force.
12. Liability
12.1 The Supplier will only be liable for losses (excluding loss of business or profits) which flow directly from a breach of the Agreement up to a maximum of the amount paid by the Customer to the Supplier in the three months preceding the event giving rise to the claim under the Agreement.
12.2 The Customer indemnifies the Supplier against any losses, costs (including legal costs on a solicitor and own Customer basis), expenses, demands or liability whether direct, indirect, consequential or otherwise, and whether arising in contract, tort (including negligence), equity or otherwise, arising (whether directly or indirectly) out of a claim by a third party in respect of the Customer’s use of the Service or the Website, provided that this indemnity does not apply:
if the Customer’s use of the Service has been only as intended by the Supplier; or
to the extent that the claim has arisen as a direct result of the Supplier’s negligence.
12.3 The Customer acknowledges that:
in using the Service, the Customer may be redirected to third party websites and/or elect to use third party products and services;
access or use by the Customer of any such third party websites, products or services is subject to the third party’s terms and conditions; and
the Supplier accepts no responsibility or liability for or in connection with access or use by the Customer of any such third party websites, products or services.
13. Dispute Resolution
13.1 In the event of any dispute arising between the parties in relation to this Agreement, no party may commence any proceedings relating to the dispute (except where the party seeks urgent interlocutory relief) unless that party has complied with the procedures in this clause 12.
13.2 The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The other party must within fourteen days of receipt of the notice, give written notice to the first party naming its representative for the negotiations (“Other Party’s Notice”). Each nominated representative will have authority to settle or resolve the dispute. The parties will co-operate with each other and endeavour to resolve the dispute through discussion and negotiation.
13.3 If the dispute is not resolved within one month following the date of the Other Party’s Notice (or such longer period as may be agreed upon by the parties in writing), either party may utilize any other legal remedies available to it in seeking to resolve the dispute.
14. Consumer guarantees
14.1 The Customer acknowledges that where it is acquiring the Service for the purposes of a business, to the extent permitted by the relevant legislation, any statutory consumer guarantees or legislation that are intended to apply to non-business consumers only will not apply.
15. General
15.1 Entire agreement: The Agreement constitutes the complete and exclusive statement of the agreement between the parties, superseding all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of the Agreement.
15.2 Waiver: No exercise or failure to exercise or delay in exercising any right or remedy by a party will constitute a waiver by that party of that or any other right or remedy available to it.
15.3 Partial invalidity: If any provision of the Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of the Agreement and its application will not be affected and will remain enforceable to the greatest extent permitted by law.
15.4 Independent contractor: The Supplier is an independent contractor to the Customer and is in all respects independent of the Customer. Nothing in the Agreement constitutes either party a partner, agent, employee or joint venture of the other.
15.5 Suspension: The Supplier may suspend performance of its obligations under the Agreement for so long as it is unable to perform for reasons outside of its control.
15.6 Assignment: The Customer is not permitted to assign its rights under the Agreement.
16. Notices
16.1 Except where the Agreement anticipates that notifications will be made via the Website, notices from the Supplier to the Customer under the Agreement will be sent to the Customer via email at the Customer’s contact details specified in the Customer Information. The Customer may notify the Supplier of a change to the email contact details specified in the Customer Information, on seven days’ notice in writing to the Supplier. Notices from the Customer to the Supplier under the Agreement must be sent to the Supplier at the Supplier’s email contact details included on the Website.
16.2 Notices sent by email will be deemed received on sending, provided that the sender does not receive an automatic delivery failure notification.
17. Governing law and jurisdiction
17.1 The Agreement is governed by the laws of New Zealand. The parties hereby submit to the non-exclusive jurisdiction of the courts of New Zealand.
