Terms of Use

1.1 You must accept this Agreement before accessing and using the Service.

1.2 By accessing the Service, you consent to be bound by the terms and conditions of, and are deemed to be a party to, this Agreement. If you do not agree with all of the terms and conditions of this Agreement, do not access the Service.

1.3 This Agreement is entered into by you as a user of the Service. You confirm that you have the authority to act on behalf of any entity for whom you are using the Service.

1.4 From time to time we may need to make changes to this Agreement. We will notify you of any changes to this Agreement by posting them on www.arachne.digital/terms-of-use and you agree by continuing to access or use the Service to be bound by the updated terms and conditions.

2.1 In this Agreement unless the context otherwise requires:

• Agreement means these terms and conditions of use and our Privacy Policy (as amended by us from time to time).
• Authorised Purpose means your internal business purposes, and expressly excludes selling or otherwise commercially exploiting the Service or any Third Party Data.
• Authorised User means any of the personnel of the Subscriber’s organisation that the Subscriber has authorised to access and use the Service on its behalf.
• Confidential Information means all written and oral information provided by either party to the other (and, in the case of Arachne Digital, to any Authorised User) or to which the other party (including in the case of the Subscriber, its Authorised Users) gain access. It is acknowledged and agreed that all information regarding the Service and the Software is Confidential Information of Arachne Digital.
• Effective Date has the meaning given to it in clause 3.1.
• Fees means the fees, costs and/or expenses payable by you to Arachne Digital (from the Effective Date) in connection with any Service in respect of which a Fee applies, as specified on the Website (at www.arachne.digital/products) or as otherwise notified by Arachne Digital from time to time throughout the term of this Agreement.
• Privacy Policy means our privacy policy in place from time to time and contained on our Website at www.arachne.digital/privacy-policy.
• Service means the Arachne Digital service or solution made available to you (including, as applicable, configuration services, and access to and use of the Support Services), as detailed on the Website (at www.arachne.digital).
• Software means the Arachne Digital software (and any related software) that is owned (or licensed) by Arachne Digital and made available to you through the Service.
• Subscriber means the main person who registers to access and use the Service, and includes the entity for whom that person enters into this Agreement on behalf of.
• Subscriber Data means any and all data (including any text or images and Personal Information) relating to you and your Authorised Users that is entered into the Website or the Service directly by you or any Authorised User or indirectly as a result of the application of the Software, but excludes any Third Party Data.
• Support Services means the basic customer support services provided by (or on behalf of) us in connection with the Service from time to time.
• Third Party Data means any data of or information about or from a third party either (i) uploaded by or for you (or any of your Authorised Users) into the Service; or (ii) obtained by you or for you (including in any report you receive as an output of the Service) through the access and use of the Service.
• User Documentation means any printed or electronic documents supplied (or made available on the Website) by Arachne Digital relating to the Service and the Software, as updated by Arachne Digital from time to time.
• We, us, our or Arachne Digital means Arachne Digital Limited.
• Website means www.arachne.digital or such other site as notified by us from time to time.
• You means the Subscriber and as the context permits, includes the Authorised Users, and your has a corresponding meaning.

3.1 This Agreement shall be in effect from the first time you access the Service (Effective Date), and shall remain in effect until terminated in accordance with this Agreement.

4.1 Subject to compliance by you with this Agreement we grant to you and you accept from us, a non-exclusive, non-transferable and non-assignable right for you to access and use the Service during the Term solely for the Authorised Purpose.

4.2 We will provide the Support Services and the cost of such standard Support Services shall be included in the Fees. However, if you wish to request additional customer support from Arachne Digital at any time throughout the Term and Arachne Digital (in its sole discretion) agrees to provide such additional services, you agree to pay us the cost of providing such services (on a time and materials basis, as notified by us).

4.3 You warrant that all information supplied by you and your Authorised Users to Arachne Digital for the purposes of registration and accessing and using the Service (including all Subscriber Data) is true, correct and up to date.

4.4 Terminal equipment, communications links and systems compatibility (and all costs associated with such items) are your (or your Authorised Users’, as applicable) sole responsibility. We accept no responsibility for any unavailability of, or defects in, the Website or the Service to the extent such unavailability or defects arise out of or in connection with terminal equipment, communications links or systems compatibility, or your (or your Authorised Users) failure to make payment of the costs for such items.

4.5 You acknowledge and agree that the Service will not provide access to any information or data that:

1. 1. is attributable to, or Arachne Digital reasonably believes is or could be attributable to, any “Five Eyes” government; or
   2. Arachne Digital reasonably considers may place it in breach of any law or other government national security restrictions, policies or regulations.

5.1 ou are responsible for keeping all access information, including email addresses and log-on credentials, secret and secure. Without limiting the foregoing, you agree:

1. 1. not to disclose and to ensure that Authorised Users do not disclose their user name or log-on credentials to any other person;
   2. to ensure that none of your Authorised Users (or any other person under your control) attempts to gain unauthorised access to the Service, including but without limitation, through hacking or password mining;
   3. to inform us immediately of any known or suspected unauthorised access to and use of the Service; and
   4. you have sole responsibility for setting the administration privileges of each Authorised User and for monitoring whether those privileges are being adhered to.

5.2 You must notify each Authorised User of the terms of this Agreement and ensure that each of them strictly comply with these terms. You shall be responsible (and liable) for any failure of any Authorised User to comply with the terms of this Agreement (as if it were a breach by you of this Agreement).

6.1 In respect of your (and your Authorised Users’) access to and use of the Service you will comply (and will ensure your Authorised Users comply) with, all User Documentation, applicable laws, rules and regulations, together with all instructions (including website scraping instructions or directions), guidelines, procedures and policies notified by Arachne Digital from time to time.

6.2 You must not (and must ensure your Authorised Users do not):

1. use the Service in a manner that may damage, disable, overburden or impair either the Service or the networks connected to the Service;
2. access or use the Service or any Third Party Data other than for the Authorised Purpose;
3. modify, translate, reverse engineer, decompile, disassemble or create derivative works of the Services (or any part of them) or otherwise attempt to: (i) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Service (or any part of it), including, without limitation, any such mechanism used to restrict or control the functionality of the Service; or (ii) derive the source code or the underlying ideas, algorithms, structure or organisation form of the Service (or any part of it); or
4. distribute through the Service any attachments, documents or files that: (i) infringe on any copyright, patent, trade secret, trademark or other third party proprietary rights; (ii) violate any law, statute, ordinance or regulation; (iii) are defamatory, libellous or obscene; or (iv) contain viruses, trojan horses, worms, time bombs, or similar harmful programming routines.

6.3 Upon becoming aware of a breach, or suspected breach, of your security safeguards in respect of any Third Party Data, you must notify us without undue delay and shall provide timely information relating to the security incident as it becomes known or as is reasonably requested by us.

6.4 We may at our discretion use technology (including digital rights management protocols) or other means to protect the Service, protect its customers, or to prevent you from breaching this Agreement.

6.5 ou may not access the Service if you are a direct competitor of ours, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

7.1 Subject to clause 8.4, title and associated intellectual property rights in the Subscriber Data remain your (or, as applicable, the relevant Authorised User’s or third party’s) property.

7.2 Third Party Data will be (and will remain) exclusively owned by the third party owners of such data.

7.3 Subject only to your rights in the Subscriber Data (as specified in clause 7.1):

1. the Service, Website and Software may be protected by copyright and other interests and, excluding any open source software used in connection with the Service, are proprietary and confidential to us (or our third party licensors and/or suppliers); and
2. all rights, title and interest in and to the Service, Website and Software, including associated intellectual property rights, are and will remain vested in us or our third party licensors or suppliers (as applicable).

7.4 Beyond the rights expressly granted in this Agreement, nothing contained in this Agreement confers on you any right or interest in, or licence or permit to use, any of the intellectual property rights in the Service, Website or Software.

7.5 You acknowledge and agree that:

1. no obligation, warranty, undertaking or promise made by us in this Agreement shall apply in respect of any third party software or Third Party Data (including in respect of the accuracy or completeness of Third Party Data) accessed and used by you (or us for the purposes of fulfilling our obligations under this Agreement), which you acknowledge is provided by third parties; and
2. you shall comply (in all respects) with any restrictions of use in any agreement entered into in respect of any third party software used in connection with (or incorporated into) the Service.

7.6 You will not remove any trade mark or copyright notice from any tangible item (including any Third Party Data) obtained via the Service.

7.7 Your access to any Third Party Data may be terminated or suspended at any time by us (with or without notice) if we lose our right to access and use such data or if we consider that your continued access to the Services or the relevant Third Party Data may place us in breach of any law or any third party contract.

8.1 You grant a non-exclusive licence to us in respect of all Subscriber Data to the extent necessary to provide the Service and exercise our rights under this Agreement.

8.2 You will ensure that all Subscription Data is deleted from the Service once it is no longer needed by you, subject to any retention obligations we have at law.

8.3 While we adhere to best practice policies and procedures to keep Subscriber Data secure and confidential and have entered into appropriate arrangements requiring our service providers to keep Subscriber Data secure and confidential, the internet is inherently insecure, and we cannot guarantee that there will never be any unauthorised access to, or loss or corruption of, Subscriber Data. We expressly exclude liability for any loss or corruption of Subscriber Data, unless (and only to the extent) the loss of Subscriber Data has resulted solely from a breach by us of an express obligation in this Agreement.

8.4 You grant to us a non-exclusive royalty free world-wide and irrevocable license permitting us to copy, anonymize, aggregate, process and display Subscriber Data to derive anonymous statistical and usage data, and data about the functionality of the Service, provided such data cannot be used to identify you or your Authorised Users (Anonymous Data), for the purposes of combining or incorporating such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise (when so combined or incorporated, referred to as Aggregate Data), so as to permit us to provide services including the copying, publication, distribution, display licensing or sale of Aggregate Data and related or similar other statistics or data to third parties (and to you should you elect to subscribe for same) pursuant to a separate licensing or services arrangement or agreement. We will be the owners of all right, title and interest in and to the Aggregate Data.

8.5 You warrant and represent that:

1. 1. you have the right to grant the licence in clause 8.4 in respect of all Subscriber Data, and inputting the Subscriber Data in the manner anticipated by the Agreement and the Service; and
   2. use of the Subscriber Data by us, you or any Authorised User in connection with the Services will not breach any laws or the intellectual property rights of any person.

8.6 We may also use Anonymous Data and Aggregate Data to enable us to inform you of any products, software, services or information that we believe you may be interested in.

8.7 You acknowledge that the Service depends on the entry by you and your Authorised Users of accurate and up to date Subscriber Data. You undertake to ensure that all Subscriber Data inputted into the Service is accurate and up to date and without material omission.

8.8 We may store Subscriber Data in servers of our service providers, which may be located in a different country to us, and may access that Subscriber Data in such other countries in which data is stored from time to time.

8.9 You indemnify us against any liability, claims and costs (including the actual legal fees charged by our solicitors) arising from any claim by a third party that our possession or use of any Subscriber Data in accordance with its rights under this Agreement:

1. infringes a third party’s Intellectual Property rights or privacy rights;
2. is defamatory, objectionable, obscene or harassing;
3. is unlawful in any way; or
4. will otherwise result in us being in breach of this agreement.

9.1 The Website and the Service may contain links to other websites or resources over which Arachne Digital does not have control (External Websites). Such links do not constitute an endorsement by Arachne Digital of those External Websites. You acknowledge that Arachne Digital is providing these links to you as a convenience, and you further agree that Arachne Digital is not responsible for the content of any External Websites. Your (and your Authorised Users’) use of the External Websites is entirely at your own risk and is subject to the terms and conditions of use and privacy policies located on the External Websites.

10.1 In consideration of your (and your Authorised Users’) use of the Service, you will pay us the Fees (together with any other costs and expenses payable by you in respect of the Service).

10.2 Our Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Arachne Digital’s income. If Arachne Digital is required to pay or collect any federal, state, local, or value-added tax on any fees charged under this Agreement, or any other Arachne Digital net income, then such taxes and/or duties will be billed to and paid by you immediately upon receipt of Arachne Digital’s invoice and supporting documentation for the taxes or duties charged.

10.3 We may increase the Fees on an annual basis and will provide you with no less than 10 days’ notice of the new Fees.

11.1 The Fees are payable on a monthly basis (in advance). Continuation of the Service is strictly subject to payment by you of the Fees in accordance with this clause 11.

11.2 Fees shall be payable by you (without set-off or deduction, withholding or counterclaim).

11.3 If you default in payment of any amount payable under this Agreement, we may:

1. 1. suspend the provision of the Service until such time as you have made payment in full of all amounts due and owing under this Agreement;
   2. charge interest on the unpaid amount from the due date until the date of actual payment at 2% per annum over the base overdraft facility rate charged by our bankers from time to time, compounded monthly until paid; and
   3. charge you all costs incurred by us in connection with the recovery of the unpaid amounts, including the charges from debt recovery services and legal fees on a solicitor and own client basis.

12.1 Either party may terminate this Agreement on 30 days written notice to the other party.

12.2 We may immediately by notice in writing to you, terminate this Agreement (or, in our discretion, suspend the provision of the Service) where:

1. you fail to comply with any material term of this Agreement;
2. you fail to pay any applicable Fees or other amounts by the due date for payment and fail to remedy such failure within five days of such failure occurring;
3. you (or any of your Authorised Users or personnel) breach, or attempt to breach, any of Arachne Digital’s security protocols or systems on the Website, or access (or attempt to access) an account that does not belong to you;
4. there is an appointment of any type of insolvency administrator in respect of your affairs;
5. required by law; or
6. we consider it necessary or desirable to do so to protect our interests or reputation or the interests of the Service or any other person.

12.3 We may also suspend access to the Website and the Service at any time:

1. 1. for such time as is necessary to carry out maintenance determined by Arachne Digital to be necessary or desirable;
   2. to reduce or prevent interference with the Website or the Service; or
   3. if required to do so as a result of a direction by any Government, law enforcement or other authority.

12.4 You may by notice in writing to Arachne Digital, terminate this Agreement where:

1. 1. we fail to comply with any material term of this Agreement; or
   2. there is an appointment of any type of insolvency administrator in respect of our affairs.

12.5 Upon termination of this Agreement (for any reason):

1. you must immediately cease (and ensure all Authorised Users cease) to access the Service and Third Party Data;
2. you acknowledge and agree that no Fees (paid in advance and which relate to the period following termination, if any) will be refunded to you;
3. all of your Subscriber Data, other than Anonymous Data or Aggregate Data, shall be deleted from the Website;
4. any termination will be without prejudice to any prior breaches by you (or any of your Authorised Users) of this Agreement; and
5. any provision of this Agreement intended to survive termination shall survive.

13.1 We may provide updates to or new versions of the Software or Service (or any parts of them) and reserve the right to take down applicable servers hosting the Website and the Software to undertake such updates or install such new versions. You agree to comply with our instructions in relation to any update, new version or maintenance and we will not be held liable for any upgrade, update, maintenance or new version of the Software or Service (or any part of them).

14.1 You will maintain full, accurate and up to date records of all of your (and your Authorised Users’) access to and use of the Service.

14.2 You will provide us with access to your records (personnel and Authorised Users’) and such other information as is reasonably requested by us to enable us to confirm your (and your Authorised Users’) compliance with this Agreement.

15.1 We will use our commercially reasonable efforts to ensure that the Service is accessible by you and your Authorised Users in accordance with this Agreement.

15.2 In the event of any breach of clause 15.1 or any other term, condition or warranty that Arachne Digital is unable to exclude by law, your sole remedy will be (at our option) the resupply of the non-conforming Service within a commercially reasonable time or a refund of the Fees paid by you for such non-conforming Service.

15.3 Beyond clause 15.1:

1. 1. the Service, Website, Third Party Data and any outputs from the Service are provided, to the extent permitted by law, on an “as is” basis without any warranty or condition of any kind, either express or implied. Use of the Service and Third Party Data (and any part of them) is at your own risk.
   2. no conditions, warranties or other terms apply to the Service or to anything else supplied under this Agreement. In particular, no implied conditions, warranties or other terms relating to satisfactory quality or fitness for any particular purpose will apply to anything supplied under this Agreement. We do not warrant that the Service or Third Party Data will be uninterrupted or entirely error-free and you acknowledge and agree that internet transmissions cannot be guaranteed to be 100% secure in all aspects, and you therefore use the Service at your own risk.

15.4 You agree the Service is acquired for the purposes of a business, and as such, the guarantees provided under the New Zealand Consumer Guarantees Act 1993 do not apply.

16.1 You will indemnify and hold us, our third party licensors, suppliers (and their directors, officers and employees), harmless from all claims, liabilities, damages, losses (including legal fees) and expenses, due to or arising out of your (or any of your customers’, personnel or Authorised Users’) use of the Service, and/or any breach of any term of this Agreement by you or any of your Authorised Users.

16.2 Despite any other provision to the contrary in this Agreement, we will not under any circumstances be liable to you, any Authorised User or any third party in respect of your use or reliance on any information created by or derived from the Service (including any Third Party Data), including any decisions in respect of your business or customers arising from the use of the Service or Third Party Data, which remains your sole responsibility.

17.1 This Agreement is personal to you and you will not license, assign, resell, share, pledge, rent or transfer any of your rights under this Agreement or any part of them without our prior written consent (which may be withheld in our absolute discretion). If you are not a natural person, any change of control in your corporate entity will be deemed an assignment.

17.2 We may assign this Agreement at any time by notice in writing to you.

18.1 We collect and process your personal information and personal information of your Authorised Users when you (or your Authorised Users, as applicable) access or use the Website and/or the Service. In order to provide you with the Service (and improve on it), we may also collect certain information about the performance of the Website and the Service and your (and your Authorised Users’) use of the Website and/or the Service.

18.2 Our access to and use of all such personal information is governed by our Privacy Policy. However, you acknowledge that information transmitted over the internet is inherently insecure.

18.3 By agreeing to this Agreement, you also agree to the way we handle your (and your Authorised Users’) personal information under our Privacy Policy. You can access our Privacy Policy on the Website (at www.arachne.digital/privacy-policy). Our Privacy Policy forms part of this Agreement.

18.4 You must comply with all applicable privacy laws (including the NZ Privacy Act 2020 and, to the extent applicable, the European Union and/or United Kingdom General Data Protection Regulations) in connection with your collection and use of any personal information of any person (including any personal information contained in any Third Party Data). You will not (and will ensure your Authorised Users do not) use the Service or Third Party Data: (i) to collect personal information about third parties, including without limitation, e-mail addresses; or (ii) in a way that violates (or may be considered inconsistent with) the privacy, rights or civil liberties of any person (including in a way that prevents the exercise of them).

18.5 In respect of personal information contained in any Third Party Data that you direct us to process through our Service, you are acting as a data controller and we are acting as data processor, and you agree that you have a lawful basis under all applicable privacy laws, for us to process Third Party Personal Information through the Service as you direct.

19.1 Unless otherwise consented in writing by one party to the other, each party will maintain the confidentiality of all Confidential Information of the other obtained pursuant to this Agreement. The provisions of clause 19.1 do not apply to any information which:

1. is public knowledge other than breach of this clause 19;
2. is received from a third party who is in lawful receipt of the information and is able to disclose it to the recipient without restriction;
3. is required by law to be disclosed; or
4. in the case of Arachne Digital, is necessary for Arachne Digital to disclose in order to provide the Service.

20.1 Neither party shall be liable for any delay or failure to fulfil its obligations under this Agreement arising directly or indirectly from any circumstance beyond the reasonable control of the affected party (including, without limitation, acts of God, flood, earthquake, storm, fire, epidemic, war, embargoes, riot or civil disturbance), provided that the affected party shall:

1. notify the other party as soon as practicable of the events; and
2. use all reasonable endeavours to continue to perform its obligations and mitigate the effects of the event.

21.1 You will not commence any court or arbitration proceedings relating to a question, difference or dispute relating to this Agreement or the Service (Dispute) unless you have first complied with this section.

21.2 Where any Dispute arises, you (or your representative) and Arachne Digital will negotiate in good faith in an attempt to resolve the Dispute amicably.

21.3 Where the Dispute cannot be resolved by way of good faith negotiations within 14 days (or such longer period agreed by you and us) of negotiations commencing, either you or we can elect to mediate any dispute in terms of the New Zealand Resolution Institute standard mediation agreement.

21.4 If the Dispute cannot be resolved by way of mediation, then either party may initiate arbitration or litigation in New Zealand.

21.5 Nothing in this section will preclude a party from taking immediate steps to seek urgent injunctive relief before an appropriate court.