Terms of Service
Welcome to Toolkit, an online job management service. The following are the terms and conditions for use of the Toolkit software described herein (the "Service") between Toolkit Global Solutions Limited (“Toolkit”) and you (either an individual or a legal entity that you represent as an authorized employee or agent) ("You").
These Terms are binding on any use of the Service and apply to You from the time that Toolkit provides You with access to the Service.
You acknowledge that You have read, understood and agreed to 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 any entity for whom you use the Service.
"Agreement" means these Terms of Service.
“Add-on” means an additional, activated service that enhances the Toolkit platform.
“Application / App” means the software application developed and formatted for use of mobile devices (smart phones, laptops and tablets) on Android and iOS platforms.
"Confidential Information" includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service, but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
"Data" refers to written and graphical content provided by or through the Service, including, without limitation, text, photographs, videos, recordings, files, illustrations, and designs, whether provided by You, another customer of the Service, or any other third party.
"Intellectual Property Right" means any patent, trademark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
"Invited User" means any person or entity, other than You, that uses the Service with Your authorisation from time to time.
"Service" means the online job management and ancillary software made available (as may be changed or updated from time to time by Toolkit) via Toolkit
"Toolkit" means Toolkit Global Solutions Limited, a company incorporated in New Zealand (Registration Number: 8194035)
"Subscriber" means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service. The Subscriber is the sole owner of the Toolkit account and its data.
"You" means the Subscriber, and where the context permits, an Invited User. "Your" has a corresponding meaning.
"Website" means the Internet site at the domain https://portal.toolkitglobal.com/login or any other site operated by Toolkit.
USE OF SOFTWARE
Toolkit grants You the right to access and use the Service via the Website and an iPhone, iPad with the particular user roles available to You. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable laws:
- the Subscriber determines who is an Invited User and what level of access to the relevant organisation and Service that Invited User has;
- the Subscriber is responsible for all Invited Users’ use of the Service;
- the Subscriber controls each Invited User’s level of access to the relevant organisation and Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be;
- if there is any dispute between a Subscriber and an Invited User regarding access to any organisation or Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that Invited User shall have, if any.
Toolkit will continue invoicing You in accordance with your pricing plan until this Agreement is terminated. All Toolkit invoices will be sent to You, or to a Billing Contact whose details are provided by You, by email. You must pay all amounts specified in any invoice by the due date.
Additionally, we will charge You, and You shall pay, any and all additional costs, fines, or penalties we incur from a government or regulatory body or telecommunication provider as a result of Your use of the Services.
Your use of the Service requires you to pay a monthly subscription fee. The pricing plan consists of the subscription and subscription fees we offer you, including invoicing, payment, auto-renewal and cancellation terms. The pricing plan may vary by region. Toolkit may update or amend the pricing plan from time to time. The terms of the pricing plan form part of these terms. As with any other changes to our terms, changes to the pricing plan will not apply retrospectively and, if we make changes and you are a subscriber, we will make every effort to let you know.
Depending on your region, subscription fees may be inclusive or exclusive of transactional taxes where relevant (like GST, Sales Tax and VAT). You are responsible for paying all other external fees and taxes associated with your use of our services wherever levied. Your responsibility includes withholding tax if it applies, unless we already process that withholding tax. We may collect geographical location information to determine your location, which may be used for tax purposes. This means location information you give us must be accurate for tax residency purposes.
In order to continue accessing the service you need to make timely payments based on the pricing plan you selected. To avoid delayed or missed payments, please make sure we have accurate payment information. If we don’t receive timely payments, we may suspend access to your subscription until the payment is made.
You must only use the Service for Your own lawful business purposes, in accordance with these Terms and any notice sent by Toolkit or condition posted on the Website, and applicable laws. You may use the Service on behalf of others or in order to provide services to others but if You do so You must ensure that You are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to You.
You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Toolkit of any unauthorised use of Your passwords or any other breach of security. Toolkit may reset Your password and You must take any other actions that Toolkit reasonably deems necessary to maintain or enhance the security of Toolkit's computing systems and networks and Your access to the Services.
As a condition of these Terms, when accessing and using the Services, You must:
• ensure all Your contact information provided in connection with the administration and use of the Service is always current, true and correct;
• not attempt to undermine the security or integrity of Toolkit's computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
• not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
• not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
• not transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
• not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services or to operate the Website.
As a condition of these Terms, if You use any communication tools available through the Website and Services, if any, You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool in a manner that:
(a) is illegal, fraudulent, harassing or abusive in nature;
(b) is in violation of laws or regulations relating to:
the transmission of data or recording of phone calls and other communications;
unsolicited advertising and marketing, or transmission of communications;
(c) generates inquiries from a law enforcement, government, or regulatory agency or triggers such an agency to request the suspension of the Service to You.
(d) may damage any other person's computing devices or software;
(e) involves transmission of material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).
When You make and/or record any communication on the Website or through the Services, You represent that You are permitted to make and/or record such communications, and you will comply with all applicable laws and regulations prior to doing so and secure all required consents. You agree to indemnify Toolkit and its service providers for any claim arising out of or related to your acts or omissions in connection to providing required notices and obtaining consent for making and/or recording phone calls, sending SMS and email, or other communications using the Services.
Toolkit is under no obligation to ensure that your use of communications through the Website and Services are legitimate or that they are related only to the use of the Services. You must exercise caution when using the Service’s communication tools. Toolkit reserves the right to remove any communication at any time in its sole discretion.
You indemnify Toolkit against: all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to Toolkit, including (but not limited to) any costs relating to the recovery of any Usage Fees that are due but have not been paid by You.
CONFIDENTIALITY AND PRIVACY
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
•Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
•Each party's obligations under this clause will survive termination of these Terms.
The provisions of this clause shall not apply to any information which:
- is or becomes public knowledge other than by a breach of this clause;
- is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
- is independently developed without access to the Confidential Information.
Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of Toolkit (or its licensors).
Ownership of Data
Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the Toolkit Usage Fee when due. You grant Toolkit a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of services to You.
Backup of Data
Toolkit adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. Toolkit expressly excludes liability for any loss of Data no matter how caused.
Third-party applications and your Data
If You enable third-party applications for use in conjunction with the Services, You acknowledge that Toolkit may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Services. Toolkit shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
WARRANTIES AND ACKNOWLEDGEMENTS
You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
You acknowledge that:
- You are authorised to use the Services and to access the information and Data that You input into the Services, including any information or Data input into the Services by any person you have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Services (whether that information and Data is Your own or that of anyone else).
- Toolkit has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You.
- If You use the Services or access the Services on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:
- You are responsible for ensuring that You have the right to do so;
- You are responsible for authorising any person who is given access to information or Data, and you agree that Toolkit has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and
- You will indemnify Toolkit against any claims or loss relating to Toolkit's refusal to provide any person access to Your information or Data in accordance with these Terms, or Toolkit making available information or Data to any person with Your authorisation.
- The provision of, access to, and use of, the Services is on an "as is " basis and at Your own risk.
- Toolkit does not warrant that the use of the Service will be uninterrupted or error free.
- Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Toolkit is not in any way responsible for any such interference or prevention of Your access or use of the Services.
- It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
Toolkit gives no warranty about the Services. Without limiting the foregoing, Toolkit does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website or these Terms.
LIMITATION OF LIABILITY
To the maximum extent permitted by law, Toolkit excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service.
If You suffer loss or damage as a result of Toolkit's negligence or failure to comply with these Terms, any claim by You against Toolkit arising from Toolkit's negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Usage Fees paid by You in the previous 12 months.
If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with the Termination clause.
These Terms will continue while You continue to use the Service, provided You continue to pay the prescribed Usage Fee when due, unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period. If You terminate these Terms You shall be liable to pay all relevant Usage Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms.
• You breach any of these Terms (including, without limitation, by non-payment of any Usage Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied; or
• You breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any payment of Usage Fees that are more than 30 days overdue); or
• You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction; then
Toolkit may take any or all of the following actions, at its sole discretion:
• Terminate this Agreement and Your use of the Services and the Website;
• Suspend for any definite or indefinite period of time, Your use of the Services and the Website;
• Suspend or terminate access to all or any Data.
For the avoidance of doubt, if payment of any invoice for Usage Fees due in relation to the Service is not made in full by the relevant due date, Toolkit may: suspend or terminate Your use of the Service, the authority for all or any of Your Organisations to use the Service, or Your rights of access to all or any Data.
Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
• remain liable for any accrued charges and amounts which become due for payment before or after termination; and
• immediately cease to use the Services.
No refund is due to you if you terminate your subscription or Toolkit terminates it in accordance with these terms.
Retention of your data:
Once a subscription is terminated by you or us, it is archived and the data submitted or created by you is no longer available to you. We retain it for a period of time consistent with our data retention policy, during which, as a subscriber, you can reactivate your subscription and once again access your data by paying the subscription fees. We retain data in case you need it as part of your record retention obligations, but you can get in touch with us to have your data removed completely if you wish.
In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Toolkit. If You still need technical help, please check the support provided online by Toolkit on the Website or failing that email us at [email protected]
Whilst Toolkit intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable to permit maintenance or other development activity to take place.
If for any reason Toolkit has to interrupt the Services for longer periods than Toolkit would normally expect, Toolkit will use reasonable endeavours to publish in advance details of such activity on the Website.
If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
You may not assign or transfer any rights to any other person without Toolkit's prior written consent.
Governing law and jurisdiction
New Zealand law governs this Agreement and You submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement.
If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Toolkit must be sent to [email protected] or to any other email address notified by email to You by Toolkit. Notices to You will be sent to the email address which You provided when setting up Your access to the Service and/or the email address listed as the Account Owner.
Rights of Third Parties
A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.