Evalu8 software (Evalu8) is owned and operated by Entuitive Limited (Entuitive). Evalu8 is a software program which allows users to upload their environmental data and use various analytical tools and functionalities to analyse their environmental data and produce scientific reports on a project-by-project basis.
Please read these Terms and Conditions carefully before using Evalu8. Evalu8 is not intended to be a substitute for professional judgment and you should not act in reliance upon it without first obtaining professional advice as to your particular circumstances.
Your access to and use of Evalu8 is conditional on your acceptance of and compliance with these Terms and Conditions. These Terms and Conditions apply to all users of Evalu8. By accessing or using Evalu8 you agree to be bound by these Terms and Conditions. If you do not accept any part of these Terms and Conditions, then you may not access Evalu8.
1.1 In these Terms and Conditions, unless the context indicates the contrary:
Authorised Users means any agents, employees or contractors of the Client who are approved by the Client to use Evalu8.
Evalu8 means the Evalu8 software program owned and operated by Entuitive which provides a platform for Clients to upload their environmental data and use various analytical tools and functionalities to assist the Client to analyse their data and produce scientific reports on a project-by-project basis. Evalu8 includes, for the avoidance of doubt, the website (at the domain evalu8.earth), and Entuitive’s servers and the Documentation.
Client means any user who Entuitive has given permission to access and use Evalu8 in accordance with these Terms and Conditions.
Client Data means:
a. all data, samples, information (including personal information) and other material of any nature entered into or uploaded to Evalu8 by the Client or accessed or stored by Entuitive in any form for processing, storage, hosting or for any other use by Entuitive in relation to the provision of Evalu8;
b. all data, outputs, images, information, reports and other material generated by the Client’s use of Evalu8; and
c. includes, without limitation, any information provided to Entuitive in order to register, access and use Evalu8 including any information in relation to the Client’s business, systems or networks or any information relating to the Client’s employees, contractors, or any other third parties.
Customisation(s) means a development, enhancement or other modification to Evalu8 which is undertaken by Entuitive at the request of the Client.
Documentation means any user and technical documentation supplied, or to be supplied to the Client by Entuitive and includes any software specifications.
Entuitive means Entuitive Limited, a New Zealand registered limited liability company.
Fee means the sum payable by the Client for their use of Evalu8 in accordance with clause 8 of these Terms and Conditions.
GST means the tax imposed under the GST Act.
GST Act means Goods and Services Tax Act 1985 (NZ) and any amendments thereof.
Insolvency Event in relation to a party (insolvent party) means:
a. the insolvent party ceases or takes steps to cease to conduct its principal business in the normal manner;
b. the insolvent party enters into or resolves to enter into any arrangement, composition or compromise with or assignment for the benefit of its creditors or any class of them;
c. the insolvent party is unable to pay its debts when they are due or is deemed under the Companies Act 1993 (NZ) to be insolvent;
d. a liquidator or provisional liquidator is appointed to the insolvent party or a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the assets or undertakings of the insolvent party;
e. an application or order is made or a resolution is passed of the winding up of the insolvent party; or
f. is removed from the Register of Companies.
Intellectual Property Rights includes copyright, and all current and future registered and unregistered rights conferred under statute, common law or equity in in respect of designs, circuit layouts, trademarks, know-how, confidential information, patents, inventions, discoveries, trade secrets, know-how, domain names, rights in databases, and all other proprietary rights, and all equivalent rights and forms of protection anywhere in the world, together with all right, interest or licence in or to any of the foregoing.
Tax Invoice has the meaning it has in the GST Act.
Terms and Conditions means these Terms and Conditions as may be amended by Entuitive from time to time.
Third Party Software means any computer software program owned and operated by a third party which Entuitive has incorporated or integrated into Evalu8 and which Entuitive is not otherwise authorised to sub-license to the Client.
1.2 In these Terms and Conditions unless the contrary intention appears:
a. the singular includes the plural and vice versa;
b. a reference to these Terms and Conditions or another instrument includes any variation or replacement of them;
c. a reference to a clause number is a reference to a clause in these Terms and Conditions;
d. the word “person” includes a firm, a body corporate, a partnership, joint venture, an
unincorporated body or association, or any government agency;
e. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it, and consolidations, amendments, re-enactments and/or replacements of any of them;
f. if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
g. a reference to a month is to a calendar month;
h. a reference to a day is to a calendar day;
i. a reference to a thing (including any amount) is a reference to the whole and each part;
j. the verb “include” (in all its parts, tenses and variants) is not used as, nor is it to be
interpreted as, a word of limitation;
k. the words “including”, “for example” or “such as” do not limit the meaning of the words to
which the example relates or examples of a similar kind;
l. New Zealand dollars, dollars, NZ$, or $ is a reference to the lawful currency of New
m. headings are inserted for convenience and do not affect the interpretation of these Terms and Conditions.
2. ACCESS TO AND USE OF EVALU8
2.1 In consideration of the Client’s obligation to pay the Fees under clause 8, Entuitive grants to the Client a non-exclusive, non-assignable licence to access and use Evalu8 in accordance with these Terms and Conditions.
2.2 The Client agrees to use Evalu8 in a manner that complies with all applicable laws and regulations and that does not infringe upon Entuitive’s rights, nor the rights of any third parties, nor restricts or inhibits their use and enjoyment of Evalu8.
2.3 The Client may not, without Entuitive’s prior written permission, in any form or by any means:
a. allow Evalu8 to be used by any persons other than the Client or its Authorised Users;
b. adapt, reproduce, copy, store, distribute, print, display, perform, publish or create adaptions from any part of Evalu8, other than for the purpose of fulfilling the purposes for which Evalu8 is being supplied;
c. use any device, including any software which interferes with the usual operation of Evalu8;
d. use Evalu8 or any the content from Evalu8 to promote the Client’s business;
e. commercialise or on-sell any information, or materials obtained from any part of Evalu8; or
f. assign or sub-contract any of its rights or obligations under these Terms and Conditions to any third party.
2.4 The Client is responsible for ensuring that:
a. at all times, it meets the system requirements which are necessary to access and use Evalu8 and that it will take reasonable steps to ensure that any computer used to access Evalu8 is protected against computer viruses and unauthorised access; and
b. all of its Authorised Users who are approved to use Evalu8 comply at all times with these Terms and Conditions.
3. CLIENT DATA
3.1 Entuitive will host all of the Client’s Data entered into Evalu8 on Entuitive’s cloud server or a third party server. Entuitive’s cloud server and/or third party server is regularly backed up and Entuitive will use its best endeavours to maintain effective security measures to safeguard Client Data from unauthorised access, use, copying or disclosure. However the Client acknowledges that Entuitive shall not be responsible for any Client Data which is lost, stolen, copied, deleted or subject to unauthorised access or use.
3.2 It is the Client’s sole responsibility to ensure the accuracy of, and to maintain copies of, any Client Data entered into or uploaded to Evalu8.
3.3 Entuitive does not take any responsibility for the Client Data which the Client chooses to upload to Evalu8. Entuitive does not pre-screen or monitor the content of any Client Data. Without limiting clause 11, in no event shall Entuitive be liable for any claims made in relation to the Client Data including, but not limited, to any misleading statements made and/or incorporated into any Client Data.
4. REGISTRATION AND SECURITY OF PASSWORDS
4.1 By signing up for Evalu8, the Client agrees that all information provided during the registration process is true and accurate and the Client will update this information as required in order to keep it current, complete and accurate.
4.2 During the registration process, the Client will be issued a password for Evalu8 to operate a Client account. The Client agrees to be fully responsible for activities that relate to its Client account including the actions of all Authorised Users and for maintaining the confidentiality of its password. If the Client has any reason to believe that its password has been obtained by someone else without its consent, the Client must inform Entuitive immediately to disable the Client’s account, if required.
5. OWNERSHIP OF INTELLECTUAL PROPERTY
5.1 The Client acknowledges that all Intellectual Property Rights and other rights in Evalu8 remain the property of Entuitive (other than Third Party Software).
5.2 The Client shall notify Evalu8 as soon as reasonably practicable if it becomes aware of:
a. any infringement of any of Evalu8’s Intellectual Property Rights;
b. any defect in its use of Evalu8; or
c. any material matters that may be of concern to the Client concerning Evalu8 which come to the attention of the Client.
5.3 All Intellectual Property Rights in the Client Data remain property of the Client. Entuitive cannot use, copy, transmit, store or back-up Client Data except for in limited circumstances. The Client agrees to grant Entuitive a limited licence to use, copy, transmit, store, and back-up Client Data for the limited purposes of:
a. enabling the Client to access and use Evalu8; and
b. for any other purpose related to provision of Evalu8 to the Client.
6. THIRD PARTY INFORMATION
6.1 Evalu8 stores and provides the Client with access to a wide range of information created or provided by third parties which can be utilised by the Client to assist them to analyse, assess and customise its Client Data (including but not limited to a number of national and international environmental guidelines)(Third Party Information). Without limiting clause 11, in no event shall Evalu8 be responsible for the accuracy or reliability of any Third Party Information made available to the Client via Evalu8.
7. CONTINUITY OF SERVICE
7.1 Entuitive will use reasonable endeavours to provide access to Evalu8 on a continuous basis, subject to any necessary downtime that may be required for system maintenance, repairs and updating, or loss of access resulting from matters beyond Entuitive’s control.
7.2 Entuitive reserves the right to suspend, or otherwise alter the Client’s access to and use of Evalu8 at any time and without notice in the case of:
a. periodic maintenance;
b. updates or software upgrades;
c. where a threat has been identified to the security of Evalu8;
d. a failure by the Client to make payment of any Fee payable to Entuitive on the due date;
e. a breach of these Terms and Conditions by the Client;
f. a requested Customisation by the Client; or
g. Entuitive otherwise being prevented from providing Evalu8 for reasons beyond its control.
7.3 When scheduling suspensions or access to Evalu8 for any of the above reasons, Entuitive will use reasonable means to contact the Client to inform them in advance of any suspension or alteration of their access to and use of Evalu8. Without limiting clause 11, in no event shall Evalu8 be responsible for any loss arising from any delay or loss of access to and use of Evalu8 at any time.
8. PRIVACY AND CONFIDENTIALITY
8.1 Entuitive collects information from and about the Client, including but not limited to the Client’s name and contact details, upon registering for Evalu8. Such information is provided by the Client voluntarily. Entuitive may also collect and store information about the Client’s use of Evalu8, for example, the pages accessed and how many times the Client accesses Evalu8.
8.2 All Client Data (including the information referred to in clause 8.1) will be stored on Entuitive’s cloud server or via a third-party server. Any such information will only be used by Entuitive for its own statistical purposes. Entuitive will never disclose any Client Data to any third party without first obtaining the Client’s consent, unless Entuitive is otherwise obliged or permitted by law to disclose it. To the extent that any Client Data is personal information (as defined in the Privacy Act 1993) then the Client is entitled to access and correct such personal information held by Entuitive.
9.1 Entuitive agrees to grant the Client the right to access and use Evalu8 in consideration of the Client’s payment of the relevant Fees.
9.2 The Fee for using Evalu8 will be determined by the number of data samples which the Client uploads to Evalu8 on a project-by-project basis. Each time the Client establishes a new project in Evalu8, the Client will be notified of the relevant Fee for that project by the production of a Tax Invoice by 10.00am the following Business Day. The Client will be deemed to accept the Fee by continuing to use Evalu8 for the relevant project following production of the Tax Invoice.
9.3 All Client Data entered into or uploaded to Evalu8 will be archived for 365 days following the last upload of any Client Data to Evalu8. If the Client requires any Client Data to be archived for a period greater than 365 days, then the Client will be required to pay a storage fee.
9.4 Entuitive may provide the Client with the ability to pay any Fees by credit card. All Fees paid through a third party payment services provider are subject to that third party’s terms of service, and Entuitive will not be responsible for anything contained therein. The Client is responsible for payment of any taxes or transaction costs associated with payment of the Fee.
9.5 In the event that payment of the Fee is not received by Entuitive within the specified timeframe in the Tax Invoice, Entuitive will be entitled to suspend the Client’s access to and use of Evalu8, until such time as payment is received but without prejudice to clause 13 and provided the relevant Fees are not in dispute.
9.6 All Fees and other charges are inclusive of any and all taxes and duties apart from GST. The Client will pay GST at the prevailing rate on the amount of the Fee at the same time and in the same manner as the Fee is payable.
9.7 From time to time, Entuitive (or others on Entuitive’s behalf) may offer trials to use Evalu8 for a specified period without payment or at a reduced rate (a “Trial”). Entuitive reserves the right, in its absolute discretion, to determine the Client’s eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.
9.8 Clients may request a Customisation of Evalu8 for their particular use. Any Customisations may be subject to additional Fees. A Fee proposal will be issued at the time of the Customisation request to indicate the costs associated (if any) with the Customisation.
9.9 If the Client disputes any amount in a Tax Invoice issued under clause 9.2, the Client shall:
a. notify Evalu8 as soon as reasonably practicable, identifying the amount in dispute and the reasons for the dispute; and
b. pay by the due date any balance of the Tax Invoice which is not in dispute.
10.1 The Client’s use of Evalu8 is at the Client’s own risk. Evalu8 is provided on an “as is” and “as available basis” and is provided by Entuitive without any warranties of any kind, either express or implied. To the fullest extent permissible by law, Evalu8 does not warrant that:
a. access to Evalu8 will be uninterrupted, or secure, or that Evalu8 will be error free and that such errors or minor defects will be corrected;
b. Evalu8 will be fit for the Client’s particular purpose, or for any other purpose;
c. Third Party Information made available via Evalu8 which is used or accessed by the Client is accurate, adequate, current, complete or suitable for the Client’s intended use;
d. all data, outputs, images, information, reports, results and other material generated by the Client’s use of Evalu8 is fit for the Client’s particular purpose, reliable or accurate; and
e. any results obtained or generated from Evalu8 will be in accordance with the Client’s expectations.
10.2 The Client warrants that it has relied upon its own skill and judgment as to the suitability of Evalu8 for its purposes and has not relied on any representation or upon any description, illustration or specification contained in any document, including the Documentation, or any publicly available material produced by Entuitive.
11. LIMITATION OF LIABILITY AND INDEMNITY
11.1 To the fullest extent permitted by law, Entuitive will not be liable to the Client (or any third party), for any damages (whether indirect, punitive, special, incidental or consequential damage (including loss of business, revenue, profits, use, privacy, data (including Client Data), goodwill or other economic advantage)) suffered as a result of the Client or anyone else using Evalu8 or any Third Party Software whether such liability arises in contract or in tort resulting from:
a. the Client’s use of, or inability to access and use Evalu8;
b. any failure or performance, error, omission, interruption, defect, delay in operation of Evalu8 (including as a result of third parties or Third Party Software);
c. computer virus or communication line failure;
d. theft, destruction, unauthorised access or alteration of Evalu8 or any of its contents including, without limitation, Client Data;
e. any error or inaccuracy in:
i. Client Data which the Client has uploaded to Evalu8 (including any misleading statements made and/or incorporated into any Client Data);
ii. Third Party Information which is stored, accessed or used by the Client within Evalu8; or
iii. any data, outputs, images, information, reports, results and other material generated by the Client’s use of Evalu8;
f. the Client’s use of any information (including Third Party Information) data, outputs, images, information, reports and other material accessed, analysed or generated by the Client’s use of Evalu8;
g. any unauthorised access to the Client’s account or use of the Client’s password; or
h. any cause or event reasonably beyond Entuitive’s control.
11.2 Without limiting the foregoing, in no event will Entuitive’s aggregate liability to the Client arising under or in relation to these Terms and Conditions whether arising in contract, tort (including negligence), equity or otherwise shall not exceed, in aggregate, the total amount of any Fees paid by the Client for the relevant project in Evalu8 which as given rise to any such liability.
11.3 As a condition of the Client’s access to and use of Evalu8, the Client agrees to not breach these Terms and Conditions. The Client agrees to indemnify and keep indemnified Entuitive against any claim, proceeding, damage, liability, loss, cost or expense (including legal costs on a solicitor and own client basis, whether arising in contract, tort (including for negligence) or otherwise arising out of or in connection with:
a. a breach by the Client of its obligations under these Terms and Conditions;
b. any failure by the Client to ensure that steps are taken to prevent unauthorised use of Evalu8; and
c. any willful, unlawful or negligent act or omission of the Client in respect of its access and use of Evalu8.
12. CHANGES TO THESE TERMS AND CONDITIONS
12.1 No variation to these Terms and Conditions shall be enforceable except if it is made in writing and agreed by both parties.
13.1 Entuitive may suspend or withdraw the Client’s right to access and use Evalu8 at any time without prior notice if:
a. the Client has breached these Terms and Conditions or have acted fraudulently;
b. the Client dies, becomes bankrupt, or commits an act of bankruptcy or if a corporate, suffers and Insolvency Event;
c. Entuitive withdraws Evalu8 as software product;
d. Entuitive considers that it has other reasonable grounds to do so (in which case all reasonable efforts will be made to advise the Client of the circumstances of withdrawal or suspension); or
e. Entuitive is complying with a court order or legislative requirement.
13.2 Upon termination of these Terms and Conditions, all rights and obligations of the parties immediately cease to have effect except that:
a. the termination of these Terms and Conditions is without prejudice to the rights and obligations of the parties accrued up to and including the date of termination (including for the avoidance of doubt, the payment of any outstanding Fees); and
b. clauses which, by their nature, are intended to survive termination of these Terms and Conditions, survive termination.
13.3 On termination of these Terms and Conditions, the Client must immediately cease its access and use Evalu8 and deliver up to Entuitive any Documentation within its possession and control.
14.1 If Entuitive does not exercise or enforce any right available to it under these Terms and Conditions, it does not constitute a waiver of those rights.
14.2 These Terms and Conditions constitute the entire agreement between the Client and Entuitive and supersede all prior agreements, arrangements, understandings and representations (whether oral or written) given by or made between Entuitive and the Client, relating to the subject matter of these Terms and Conditions.
14.3 The rights and remedies provided in these Terms and Conditions are cumulative and not exclusive of any rights or remedies provided by these Terms and Conditions or at law.
14.4 If any provision of these Terms and Conditions becomes or is held to be illegal, invalid or unenforceable in any respect, that provision shall be read down to the extent necessary to make it legal, valid and enforceable or, if it cannot be read down, be deemed severed from these Terms and Conditions. Neither such change shall affect the legality, validity and enforceability of the other provisions of these Terms and Conditions.
14.5 These Terms and Conditions are governed by the laws of New Zealand. When the Client accesses Evalu8, the Client submits to the exclusive jurisdiction of the New Zealand courts.