Terms of Service

Terms of Use

Welcome to BOOM! Building management software, The Terms laid out in this document are
intended to explain Projex Software LTD obligations as a service provider and Your obligations as a
subscriber to BOOM. Please read carefully and understand the terms laid out before accepting.

These terms are binding on all services provide By BOOM and Projex Software in support of BOOM.
Terms are effective from the time off acceptance on registration.

The terms of service will evolve over time and be amended to better suit all parties. Terms and
services are not intended to answer any technical questions or resolve any issues with the service.
Projex software ltd reserves the right to change these terms at any time, amended terms will be
effective from the time of posting to the website. Projex Software will take reasonable actions to
communicate these changes to clients via email or notification via the website. It is the obligation of
the client or customer to ensure that the most recent terms are read, understood, and agreed to.

By registering to use the Service you acknowledge that You have read and understood these Terms
and have the authority to act on behalf of any person for whom You are using the Service. You are
deemed to have agreed to these Terms on behalf of the entity for whom you use the Service.

These Terms were last updated 19 September 2018.

General-Terms

1 Interpretation

1.1 Definitions: In the Agreement, the following terms have the stated meaning:

Agreement:

These BOOM Terms of Use and the BOOM SaaS Agreement.

Confidential Information:

The terms of the Agreement and any information that is not public knowledg
and that is obtained from the other party in the course of, or in connection
with, the Agreement. Intellectual Property owned by the Supplier (or its
licensors), including the BOOM Software, is the Supplier's Confidential
Information. The Data is the Subscriber's Confidential Information.

Data:

All data, content, and information (including Personal Information) owned,
held, used or created by or on behalf of the Subscriber that is stored using, or
inputted into, the Services.

End Date:

the end date set out in the BOOM SaaS Agreement

Fees:

the fees set out in the BOOM SaaS Agreement, as amended from time to time
in accordance with clause 5.4.

Force Majeure:

an event that is beyond the reasonable control of a party, excluding:

an event to the extent that it could have been avoided by a party
taking reasonable steps or reasonable care; or
a lack of funds for any reason.

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.

BOOM SaaS Agreement:

The separate document that contains the specific details of the Agreement.

Objectionable:

includes being objectionable, defamatory, obscene, harassing, threatening,
harmful or unlawful in any way.

Payment Terms:

the payment terms set out in the BOOM SaaS Agreement (if any) as amended
from time to time in accordance with clause 5.4.

Personal Information:

has the meaning given in the Privacy Act 1993.

Related Services:

any related service described in the BOOM SaaS Agreement and any further
services that we agree to provide to You under the Agreement.

SaaS Service:

the service having the core functionality described in more detail on the
Website, as the Website is updated from time to time.

Service:

the SaaS Service and any Related Service.

Start Date:

the start date set out in the BOOM SaaS Agreement Details.

Subscriber:

the SaaS Service and any Related Service.

Supplier, we, us, our:

Projex Software Limited

Underlying Systems:

The BOOM Software, IT solutions, systems and networks (including
software and hardware) used to provide the Services, including any
third-party solutions, systems and networks.

Website:

the Internet site at the domain www.boom.net.nz, or such other site
notified to the Subscriber by the Supplier.

Year:

a 12-month period starting on the Start Date or the anniversary of that date.

You, Your:

The Subscriber.

1.2 Interpretation:

In the Agreement:

clause and other headings are for ease of reference only and do not affect the
interpretation of the Agreement;
words in the singular include the plural and vice versa;
a reference to:
1. a party to the Agreement includes that party's permitted assigns;
2. personnel includes officers, employees, contractors and agents, but a
  reference to the Subscriber's personnel does not include the Supplier;
3. a person includes an individual, a body corporate, an association of
  persons (whether corporate or not), a trust, a government department, or any other entity;
4. including and similar words do not imply any limit; and
5. a statute includes references to regulations, orders or notices made under
  or in connection with the statute or regulations and all amendments, replacements or other
  changes to any of them;
no term of the Agreement is to be construed against a party because the term was first
proposed or drafted by that party; and
if there is any conflict between these Terms and the BOOM SaaS Agreement, these
Terms prevail unless expressly stated otherwise in the BOOM SaaS Agreement.

2 Service

2.1 General:

The Supplier must use best efforts to provide the Services:

in accordance with the Agreement and New Zealand law;
exercising reasonable care, skill and diligence; and
using suitably skilled, experienced and qualified personnel.

2.2 Non-exclusive:

The Supplier's provision of the Services to the Subscriber is non-exclusive.
Nothing in the Agreement prevents the Supplier from providing the Services to any other
person.

2.3 Availability:

The Supplier will use reasonable efforts to ensure the SaaS Service is available during
normal business hours in New Zealand. However, it is possible that on occasion the SaaS
Service may be unavailable to permit maintenance or other development activity to take place,
or in the event of Force Majeure. The Supplier will use reasonable efforts to give email notice
to the Subscriber of advance details of any unavailability.
Through the use of web services and APIs, the SaaS Service interoperates with a range
of third-party service features. The Supplier does not make any warranty or representation on
the availability of those features. Without limiting the previous sentence, if a third-party feature
provider ceases to provide that feature or ceases to make that feature available on reasonable
terms, the Supplier may cease to make available that feature to the Subscriber. To avoid
doubt, if the Supplier exercises its right to cease the availability of a third-party feature, the
Subscriber is not entitled to any refund, discount or other compensation.

2.4 Additional Related Services:

The Supplier may, from time to time, make available additional services to supplement
the SaaS Service.
At the request of the Subscriber and subject to the Subscriber paying the applicable Fees,
the Supplier may agree to provide to the Subscriber an additional Related Service on the terms
of the Agreement.

3 Subscriber Obligations

3.1 General use:

The Subscriber and its personnel must:

use the Services in accordance with the Agreement solely for:
1. the Subscriber's own internal business purposes; and
2. lawful purposes; and
not resell or make available the Services to any third party, or otherwise commercially
exploit the Services.

3.2 Access conditions:

When accessing the SaaS Service, the Subscriber and its
personnel must:

not impersonate another person or misrepresent authorisation to act on behalf of others
or the Supplier;
correctly identify the sender of all electronic transmissions;
not attempt to undermine the security or integrity of the Underlying Systems;
not use, or misuse, the SaaS Service in any way which may impair the functionality of the
Underlying Systems or impair the ability of any other user to use the SaaS Service;
not attempt to view, access or copy any material or data other than that to which the
Subscriber is authorised to access;
neither use the SaaS Service 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; and
comply with any terms of use on the Website, as updated from time to time by the
Supplier.

3.3 Personnel:

A breach of any term of the Agreement by the Subscriber's personnel is deemed
to be a breach of the Agreement by the Subscriber.

3.4 Authorisations:

The Subscriber is responsible for procuring all licences, authorisations and
consents required for it and its personnel to use the Services, including to use, store and input
Data into, and process and distribute Data through, the Services.

4 Data

4.1 Supplier access to Data:

The Subscriber acknowledges and agrees that:
1. the Supplier may require access to the Data to exercise its rights and
  perform its obligations under the Agreement; and
2. to the extent that this is necessary but subject to clause 7 (Confidentiality),
  the Supplier may authorise a member or members of its personnel to access the Data for this
  purpose; and
3. the Supplier is granted a licence to use, copy, transmit, store, and back-up
  Subscriber’s information and Data for the purposes of enabling Subscriber to access and use
  the Services and for any other purpose related to provision of services to Subscriber.
The Subscriber must arrange all consents and approvals that are necessary for the
Supplier to access the Data as described in clause 4.1a

4.2 Third Party Applications and External Data Integration:

The Subscriber acknowledges and agrees that:
1. if Subscriber authorises third-party applications for use in conjunction with
  the Services, the Supplier may allow the providers of those third-party applications to access
  Data as required for the interoperation of such third-party applications with the Services; and
2. the Supplier shall not be responsible for any disclosure, modification or
  deletion of Data resulting from any such access by third-party application providers.

4.3 Agent:

The Subscriber acknowledges and agrees that to the extent Data contains Personal
Information, in collecting, holding and processing that information through the Services, the
Supplier is acting as an agent of the Subscriber for the purposes of the Privacy Act 1993 and
any other applicable privacy law.
The Subscriber must obtain all necessary consents from the relevant individual to enable
the Supplier to collect, use, hold and process that information in accordance with the
Agreement.

4.4 Backups of Data:

While the Supplier will take standard industry measures to back up all Data stored using
the Services, the Supplier expressly excludes liability for any loss of Data under all
circumstances.

4.5 International storage of Data:

The Subscriber agrees that the Supplier may store Data (including any Personal
Information) in secure servers in New Zealand, Australia, the UK, the European Union and
North America;
and may access that Data (including any Personal Information) in Australia, the UK,
the European Union, North America and New Zealand from time to time.

4.6 Indemnity:

The Subscriber indemnifies the Supplier against any liability, claim, proceeding,
cost, expense (including the actual legal fees charged by the Supplier's solicitors) and loss of
any kind arising from any actual or alleged claim by a third party that any Data infringes the
rights of that third party (including Intellectual Property Rights and privacy rights) or that the
Data is Objectionable, incorrect or misleading.

5 Fees:

5.1 Fees:

The Subscriber must pay to the Supplier the Fees.

5.2 Invoicing and payment:

TThe Supplier will provide the Subscriber with valid GST tax invoices on the dates set out
in the Payment Terms, or if there are none, monthly in advance.;
The Fees exclude GST, which the Subscriber must pay on taxable supplies under the
Agreement.
The Subscriber must pay the Fees:
1. on the dates set out in the Payment Terms, or if there are none, by the
  20th of the month following the date of invoice; and
2. electronically in cleared funds without any set off or deduction.

5.3 Overdue amounts:

The Supplier may charge interest on overdue amounts. Interest will be
calculated from the due date to the date of payment (both inclusive) at an annual percentage
rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by the
Supplier's primary trading bank as at the due date (or, if the Supplier's primary trading bank
ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that
rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.

5.4 Increases:

By giving at least 30 days' notice, the Supplier may increase the Fees, change the
method of calculating the Fees and/or change the Payment Terms at any time.
If the Subscriber does not wish to pay the amended Fees, it may terminate the Agreement
on no less than 10 days' notice, provided the Supplier receives the notice before the effective
date of the Fee increase. If the Subscriber does not terminate the Agreement in accordance
with this clause, it is deemed to have accepted the amended Fees and Payment Terms.

6 Intellectual Property:

6.1 Ownership:

Subject to clause 6.1b, title to, and all Intellectual Property Rights in, the Services, the
Website, and all Underlying Systems is and remains the property of the Supplier (and its
licensors). The Subscriber must not contest or dispute that ownership or the validity of such
Intellectual Property Rights.
Title to, and all Intellectual Property Rights in, the Data (as between the parties) remain
the property of the Subscriber. The Subscriber grants the Supplier a worldwide, non-exclusive,
fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and
communicate the Data for any purpose in connection with the exercise of its rights and
performance of its obligations in accordance with the Agreement.

6.2 Know how:

To the extent not owned by the Supplier, the Subscriber grants the Supplier a
royalty-free, transferable, irrevocable and perpetual licence to use any know how, techniques,
ideas, methodologies, and similar Intellectual Property used by the Supplier in the provision of
the Services.

6.3 Feedback:

If the Subscriber provides the Supplier with ideas, comments or suggestions
relating to the Services or Underlying Systems (together feedback):

all Intellectual Property Rights in that feedback, and anything created as a result of that
feedback (including new material, enhancements, modifications or derivative works), are
owned solely by the Supplier; and
the Supplier may use or disclose the feedback for any purpose.

6.4 Third party sites and material:

The Subscriber acknowledges that the SaaS Service may link
to third party websites or feeds that are connected or relevant to the SaaS Service. Any link
from the SaaS Service does not imply any Supplier endorsement, approval or recommendation
of, or responsibility for, those websites or feeds or their content or operators. To the maximum
extent permitted by law, the Supplier excludes all responsibility or liability for those websites or
feeds.

6.5 Third party Intellectual Property Rights indemnity:

The Supplier indemnifies the Subscriber against any claim or proceeding brought against
the Subscriber to the extent that claim or proceeding alleges that the Subscriber's use of the
SaaS Service in accordance with the Agreement constitutes an infringement of a third party's
Intellectual Property Rights (IP Claim). The indemnity is subject to the Subscriber:
1. promptly notifying the Supplier in writing of the IP Claim;
2. making no admission of liability and not otherwise prejudicing or settling
  the IP Claim, without the Supplier's prior written consent; and
3. giving the Supplier complete authority and information required for the
  Supplier to conduct and/or settle the negotiations and litigation relating to the IP Claim.
  The costs incurred or recovered are for the Supplier's account.
The indemnity in clause 6.5a does not apply to the extent that an IP Claim arises from or
in connection with:
1. the Subscriber's breach of the Agreement;
2. use of the SaaS Service in a manner or for a purpose not reasonably
  contemplated by the Agreement or otherwise not authorised in writing by the Supplier; or
3. any third-party data or any Data.
If at any time an IP Claim is made, or in the Supplier’s reasonable opinion is likely to be
made, then in defence or settlement of the IP Claim, the Supplier may (at the Supplier's
option):
1. obtain for the Subscriber the right to continue using the items which are the
  subject of the IP Claim; or
2. modify, re-perform or replace the items which are the subject of the
  IP Claim so they become non-infringing.

7 Third party Intellectual Property Rights indemnity:

7.1 Security:

Each party must, unless it has the prior written consent of the other party

keep confidential at all times the Confidential Information of the other party;
effect and maintain adequate security measures to safeguard the other party's
Confidential Information from unauthorised access or use; and
disclose the other party's Confidential Information to its personnel or professional advisors
on a need to know basis only and, in that case, ensure that any personnel or professional
advisor to whom it discloses the other party's Confidential Information is aware of, and
complies with, the provisions of clauses 7.1a and 7.1b.

7.2 Permitted disclosure:

The obligation of confidentiality in clause 7.1a does not apply to any
disclosure or use of Confidential Information:

for the purpose of performing the Agreement or exercising a party's rights under the
Agreement;
required by law (including under the rules of any stock exchange);
which is publicly available through no fault of the recipient of the Confidential Information
or its personnel;
which was rightfully received by a party to the Agreement from a third party without
restriction and without breach of any obligation of confidentiality; or
by the Supplier if required as part of a bona fide sale of its business (assets or shares,
whether in whole or in part) to a third party, provided that the Supplier enters into a
confidentiality agreement with the third party on terms no less restrictive than this clause 8.

8 Warranties:

8.1 Mutual warranties:

Each party warrants that it has full power and authority to enter into and
perform its obligations under the Agreement which, when signed, will constitute binding
obligations on the warranting party.

8.2 No implied warranties:

To the maximum extent permitted by law:

the Supplier's warranties are limited to those set out in the Agreement, and all other
conditions, guarantees or warranties whether expressed or implied by statute or otherwise
(including any warranty under the Contract and Commercial Law Act 2017) are expressly
excluded and, to the extent that they cannot be excluded, liability for them is limited to $1,000;
and
the Supplier makes no representation concerning the quality of the Services and does not
promise that the Services will:
1. meet the Subscriber's requirements or be suitable for a particular purpose,
  including that the use of the Services will fulfil or meet any statutory role or responsibility of the
  Subscriber; or
2. be secure, free of viruses or other harmful code, uninterrupted or error free
You agree and represent that you are acquiring the Service, and accepting these Terms, for
the purpose of trade and that the Consumer Guarantees Act 1993 and any other applicable
consumer protection legislation does not apply to the supply of the Service or these
Terms. The parties agree that it is fair and reasonable that the parties are bound by the
Agreement and in particular this clause 8.3.

8.3 Limitation of remedies:

Where legislation or rule of law implies into the Agreement a
condition or warranty that cannot be excluded or modified by contract, the condition or
warranty is deemed to be included in the Agreement. However, the liability of the Supplier for
any breach of that condition or warranty is limited, at the Supplier's option, to:

supplying the Services again; and/or;
paying the costs of having the Services supplied again.

9 Liability

9.1 Maximum liability:

The maximum aggregate liability of the Supplier under or in connection
with the Agreement or relating to the Services, whether in contract, tort (including negligence),
breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the
Fees paid by the Subscriber under the Agreement in the previous Year (which in the first Year
is deemed to be the total Fees paid by the Subscriber from the Start Date to the date of the
first event giving rise to liability). The cap in this clause 9.1 includes the cap set out in clause
8.2a.

9.2 Unrecoverable loss:

Neither party is liable to the other under or in connection with the
Agreement or the Services for any

loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
consequential, indirect, incidental or special damage or loss of any kind.

9.3 Unlimited liability:

Clauses 9.1 and 9.2 do not apply to limit the Supplier's liability:
1. under the indemnity in clause 6.5a; or
2. under or in connection with the Agreement for:
- personal injury or death;
- fraud or wilful misconduct; or
- a breach of clause 7.
Clause 9.2 does not apply to limit the Subscriber's liability:
1. to pay the Fees;
2. under the indemnity in clause 4.5; or
3. for those matters stated in clause 9.3aii.

9.4 No liability for other's failure:

Neither party will be responsible, liable, or held to be in breach
of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to
the extent that the failure is caused by the other party failing to comply with its obligations
under the Agreement, or by the negligence or misconduct of the other party or its personnel.

9.5 Mitigation:

Each party must take reasonable steps to mitigate any loss or damage, cost or
expense it may suffer or incur arising out of anything done or not done by the other party under
or in connection with the Agreement.

10 Term, Termination and Suspension

10.1 Duration:

Unless terminated under this clause 10 or under clause 5.4, the Agreement:

starts on the Start Date and ends on the End Date; but
where no End Date is set out in the BOOM SaaS Agreement, continues for successive
monthly terms from the Start Date unless a party gives at least 30 days' notice that
the Agreement will terminate on the expiry of the then current term.

10.2 No fault termination:

Supplier may terminate the Agreement on no less than 3 months' prior
notice to the other party.

10.3 Other termination rights:

Either party may, by notice to the other party, immediately terminate the Agreement if the
other party:
1. breaches any material provision of the Agreement and the breach is not:
  - remedied within 10 days of the receipt of a notice from the first party requiring it to
    remedy the breach; or
  - capable of being remedied;
2. becomes insolvent, liquidated or bankrupt, has an administrator, receiver,
  liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to
  any form of insolvency action or external administration, or ceases to continue business for any
  reason; or
3. is unable to perform a material obligation under the Agreement for 30 days
  or more due to Force Majeure.
If the remedies in clause 6.5c are exhausted without remedying or settling the IP Claim,
the Supplier may, by notice to the Subscriber, immediately terminate the Agreement.

10.4 Consequences of termination or expiry:

Termination or expiry of the Agreement does not affect either party's rights and
obligations that accrued before that termination or expiry.
On termination or expiry of the Agreement, the Subscriber must pay all Fees for Services
provided prior to that termination or expiry.
Except to the extent that a party has on-going rights to use Confidential Information, at the
other party's request following termination or expiry of the Agreement, a party must promptly
return to the other party or destroy all Confidential Information of the other party that is in the
first party's possession or control.
At any time prior to one month after the date of termination or expiry, the Subscriber may request:
1. a copy of any Data stored using the SaaS Service, provided that the
  Subscriber pays the Supplier’s reasonable costs of providing that copy. On receipt of that
  request, the Supplier must provide a copy of the Data in a common electronic form.
  The Supplier does not warrant that the format of the Data will be compatible with any software;
  and/or
2. deletion of the Data stored using the SaaS Service, in which case the
  Supplier must use reasonable efforts to promptly delete that Data.
  
  To avoid doubt, the Supplier is not required to comply with clause 10.4di to the extent that the
  Subscriber previously requested deletion of the Data.

10.5 Obligations continuing:

Clauses which, by their nature, are intended to survive termination or
expiry of the Agreement, including clauses 5.5, 7, 8, 10, 11.4, 11.5 and 12, continue in force.

10.6 Suspending access:

Without limiting any other right or remedy available to the Supplier, the
Supplier may restrict or suspend the Subscriber's access to the SaaS Service where the
Subscriber (including any of its personnel):

undermines, or attempts to undermine, the security or integrity of the SaaS Service or any
Underlying Systems;
uses, or attempts to use, the SaaS Service:
1. for improper purposes; or
2. in a manner, other than for normal operational purposes, that materially
  reduces the operational performance of the SaaS Service; or
has otherwise materially breached the Agreement (in the Supplier's reasonable opinion).

10.7 Notice:

The Supplier must notify the Subscriber where it restricts or suspends the Subscriber's
access under clause 10.6.

11 Disputes

11.1 Good faith negotiations:

Before taking any court action, a party must use best efforts to
resolve any dispute under, or in connection with, the Agreement through good faith negotiations.

11.2 Obligations continue:

Each party must, to the extent possible, continue to perform its
obligations under the Agreement even if there is a dispute.

11.3 Right to seek relief:

This clause 11 does not affect either party's right to seek urgent
interlocutory and/or injunctive relief.

12 General

12.1 Force Majeure:

Neither party is liable to the other for any failure to perform its obligations
under the Agreement to the extent caused by Force Majeure, provided that the affected party:

immediately notifies the other party and provides full information about the Force Majeure
uses best efforts to overcome the Force Majeure; and
continues to perform its obligations to the extent practicable.

12.2 Rights of third parties:

No person other than the Supplier and the Subscriber has any right to
a benefit under, or to enforce, the Agreement.

12.3 Waiver:

To waive a right under the Agreement, that waiver must be in writing and signed by
the waiving party.

12.4 Independent contractor:

Subject to clause 5.2, the Supplier is an independent contractor of
the Subscriber, and no other relationship (e.g. joint venture, agency, trust or partnership) exists
under the Agreement.

12.5 Notices:

A notice given by a party under the Agreement must be delivered to the other party
via email using the email address set out in the BOOM SaaS Agreement or otherwise notified
by the other party for this purpose. If the notice is a notice of termination, a copy of that email
must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer
of the other party at the other party’s last known physical address.

12.6 Severability:

Any illegality, unenforceability or invalidity of a provision of the Agreement does
not affect the legality, enforceability or validity of the remaining provisions of the Agreement.

12.7 Severability:

Any variation to the Agreement must be in writing and signed by both parties.

12.8 Entire agreement:

The Agreement sets out everything agreed by the parties relating to the
Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the
Start Date. The parties have not relied on any representation, warranty or agreement relating
to the subject matter of the Agreement that is not expressly set out in the Agreement, and no
such representation, warranty or agreement has any effect from the Start Date. Without limiting
the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair
Trading Act 1986.

12.9 Subcontracting and assignment:

The Subscriber may not assign, novate, subcontract or transfer any right or obligation
under the Agreement without the prior written consent of the Supplier, that consent not to be
unreasonably withheld. The Subscriber remains liable for its obligations under the Agreement
despite any approved assignment, subcontracting or transfer. Any assignment, novation,
subcontracting or transfer must be in writing.
Any change of control of the Subscriber is deemed to be an assignment for which the
Supplier's prior written consent is required under clause 12.9a. In this clause change of
control means any transfer of shares or other arrangement affecting the Subscriber or any
member of its group which results in a change in the effective control of the Subscriber.

12.10 Law:

The Agreement is 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 the Agreement.

12.11 Counterparts:

The Agreement may be signed in counterparts, each of which constitutes an
original and all of which constitute the same agreement. A party may enter the Agreement by
signing and emailing a counterpart copy to the other party.