MUNA GROUP LIMITED

TERMS AND CONDITIONS

By registering your details with us and accessing and using the MunaHR software (as defined in this agreement) you accept and agree to comply with the terms of this agreement.

1.          Definitions

In this agreement, unless the context otherwise requires:

“Account” means an online account which you set up with us to access and use the Software.

“Agreement” means this agreement and all specific terms of the subscription plan selected by you on registration of your Account.

“Approved Purpose” means accessing and using the Software only for employment management and recruitment in relation to your entity or any other purpose we authorise in writing.

“Business Hours” means the period commencing at 8.00am and ending at 5.00pm Monday to Friday.

“Change of Control” means any share transfer or other change which results in a change in your effective control.

“Derivative Works” means any work by us based on our pre-existing work.

“Intellectual Property Rights” means all our intellectual property rights, including any copyright, trademark and patent rights, source codes, trade secrets and other proprietary rights in the Software and any Derivative Works, whether existing now or in the future.

“Payment Date” means each month from the Start Date.

“Software” means the software product named “Muna HR” which streamlines and improves the recruitment process and employee management.

“Start Date” means the commencement date of your subscription specified when you complete the initial payment process of the Subscription Fee.

“Subscription Fee” means the monthly fee charged by us for the number of Users able to access and use the Software as set out in the subscription plan selected by you on registration of your Account and any additional fees payable in respect of additional services provided by us as agreed with you.

“Third-Party Service” means any software, tool or service provided to you by a party other than us in connection with this Agreement. As at the date of this Agreement, this includes Stripe’s payment services.

“Us” or “we” means Muna Group Limited.

“User” means an employee or officer of your company who is authorised to access and use the Software under a valid User Subscription as agreed by us.

“User Content” means all information relating to your business and employment which you upload to the Software, including but not limited to employment contracts.

“User’s Sub-Account” means an online account which a User sets up with us to access and use the Software.

“User Subscription” means a subscription to enable a User to access and use the Software.

“Working Day” means any day of the week other than:

(a)           Saturday, Sunday and any day which is observed as a public holiday under the Holidays Act 2003;

(b)          If Waitangi Day or ANZAC Day falls on a Saturday or Sunday, the following Monday;

(c)           A day in the period starting on 24 December in any year and ending on 5 January in the following year, both days inclusive.

A Working Day commences at 9.00am and ends at 5.00pm.

2.          Licence

2.1            In consideration of the Subscription Fee, we grant to you and each User a non-exclusive, non-transferable licence to access and use the Software.

2.2            This Agreement commences on the Start Date for a period of one month and automatically renews thereafter on a month-to-month basis until terminated in accordance with this Agreement.

2.3            If you purchase any additional User Subscriptions, this will commence on the start date specified at the time you add the additional subscription and automatically renews thereafter on a month-to-month basis and continue until terminated in accordance with this Agreement.

3.          Fees and Payment Terms

3.1            The Subscription Fee is payable on each Payment Date.

3.2            You agree to an initial and recurring Subscription Fee. You authorise us to automatically charge on each Payment Date the credit card provided on registration, or as updated from time to time, based on your chosen content of services.

3.3            If an automatic payment pursuant to clause 3.2 is declined and the Subscription Fee is unpaid, we reserve our rights to suspend your access and all Users’ access to the Software until the Subscription Fee has been paid in full or cancel your access and all Users’ access to the Software.

3.4            You agree that we are entitled to recover from you all legal and debt collection costs that we incur in obtaining or attempting to obtain payment of the Subscription Fee.

3.5            We may change the Subscription Fee from time to time on 20 Working Days’ prior written notice to you. You are deemed to have accepted the new Subscription Fee if we do not receive a valid notice of termination from you in accordance with clause 11.1.

4.          Software Access and Use

4.1            You will be required to set up an Account to access and use the Software. To obtain an Account, you are required to complete a registration process. You warrant that all information submitted to us during the registration process is accurate and true.

4.2            Each User is required to set up a User Sub-Account to access and use the Software. You and each User agree not to share your respective passwords, information relating to your respective Account or Sub-Accounts or access to the Software with any third party.

4.3            You warrant that the maximum number of Users that you authorise to access and use the Software will not exceed the number of User Subscriptions you have purchased from time to time.

4.4            You will not allow any User Subscription to be used by more than one User unless it has been reassigned in its entirety to another User, in which case the prior User shall no longer have any right to access or use the Software.

4.5            You and each User agree to comply with any reasonable directions issued by us from time to time in respect of the access and/or use of the Software.

4.6            You agree you and each User will not access and use the Software for any purpose other than the Approved Purpose or undertake, or attempt to undertake, any of the following:

(a)             decompile, reverse-engineer, damage or otherwise modify the Software;

(b)            lease, transfer, lend, sell, market, license, distribute or otherwise give any person or entity other than the Users any right to access and use the Software;

(c)             reproduce, duplicate or copy the Software;

(d)            derive any of the Software’s source codes; or

(e)             publish any performance or benchmark tests or analysis relating to the Software.

4.7            You and each User are responsible for:

(a)             the establishment, maintenance and monitoring of adequate internal security measures in connection with the access and use of the Software by you and your Users, including maintaining the confidentiality of your respective passwords;

(b)             all activities that occur under your Account or User Sub-Accounts;

(c)             ensuring your respective hardware, telecommunications equipment, internet service and operating system meets any system requirements; and

(d)             ensuring that all information you or a User upload to the Software is accurate, compliant with all applicable laws and regulations and does not infringe on a third party’s intellectual property rights.

4.8            A breach of this Agreement by a User is deemed to be a breach of this Agreement by you.

4.9            You will immediately notify us in writing as soon as you become aware of any unauthorised access of your Account or a User’s Sub-Account.

5.          Maintenance

5.1            We will take all reasonable steps to provide you with uninterrupted access to the Software. However, you acknowledge that your access or any User’s access of the Software may not be uninterrupted or free from errors or bugs. Where this occurs, we will take reasonable steps to restore your access and any User’s access within a reasonable period of time.

5.2            Notwithstanding clause 5.1, it may be necessary to perform urgent maintenance. We reserve the right to suspend access and use of the Software in the event that essential urgent maintenance is necessary.

5.3            We may need to perform maintenance services. Where scheduled maintenance is required, we will use reasonable endeavours to provide you with prior notice of such maintenance and complete these outside of Business Hours.

6.          Intellectual Property Rights

6.1            The Software, all Intellectual Property Rights and any Derivative Works are owned by us. Nothing in this Agreement transfers our ownership in the Software, our Intellectual Property Rights and any Derivative Works to you or a User.

6.2            You agree that you and each User will not do anything which is inconsistent with our Intellectual Property Rights.

6.3            If you or any User provide us with any ideas, comments or suggestions relating to the Software, all Intellectual Property Rights in that feedback and anything created as a result of that feedback are owned solely by us. We may use or disclose the feedback for any purpose.

6.4            We reserve the right to remove and delete any information which infringes or appears to infringe on a third party’s intellectual property rights on prior written notice to you.

6.5            You retain all right, title and ownership interest in and to the User Content.

7.          Confidentiality

7.1            Neither party will, during the term of this Agreement and for an indefinite period following the term of this Agreement, use or disclose to any third party any confidential information concerning the practice, dealings, transactions or affairs of a party which was acquired pursuant to this Agreement.

7.2            Confidential information does not include information which was already in the public domain or which subsequently entered the public domain through no fault of a party, information which was already known by the recipient at the time the information was disclosed, information which was received from a third party not in breach of any obligations of confidentiality, information independently developed by the recipient without use of the confidential information and information which is required to be disclosed by law or a law enforcement agency.

7.3            The recipient of confidential information may disclose such information to its employees but only to the extent that it is necessary to perform its obligations under this Agreement and if they agree to be bound by the same obligations of confidence.

7.4            This clause survives termination of this Agreement.

8.          Data Collection, Use and Protection

8.1            You acknowledge and accept that we may collect personal information about you or a User. We will only use the personal information in connection with this Agreement and in accordance with our Privacy Policy which can be found on our website, including but not limited to contacting you, providing you with details on the Software and any updates, improving the Software and authorising and processing payment information. By registering your details with us and accessing and using the Software, you agree to be bound by the terms of our Privacy Policy which can be found on our website.

8.2            We do not make any representation or warranty regarding any Third-Party Service and do not assume any responsibility for any Third-Party Service or any delays, delivery failures or any other loss or damage resulting from the transfer of data in relation to any Third-Party Service.

8.3            Any Third-Party Service may be subject to that provider’s own terms and conditions and privacy policy. You are encouraged to read that provider’s terms and conditions and privacy policy.

9.          Indemnity

9.1            You agree to indemnify us for and against all liability, losses, damages, costs and expenses, including legal fees on a solicitor-client basis, suffered by us as a result of any claims brought against us by a third party as a result of your breach of this Agreement.

9.2            If any proceedings are brought against you alleging your use of the Software infringes a third party’s intellectual property rights, you must:

(a)             Advise us immediately;

(b)             Not admit to any responsibility or do anything to prejudice or settle the claim without our prior approval; and

(c)             Provide us with all authority and information we may require to negotiate or settle any litigation on this matter.

9.3            We reserve the right to modify or replace any feature of the Software which is the subject or could be the subject of any proceedings without material loss of functionality to ensure the Software does not infringe on a third party’s intellectual property rights.

10.        Limitation of Liability

10.1         The Software enables you and Users to submit and upload employment contracts and other content or correspond with third parties through direct messages. We are not liable in the event that notifications or correspondence are not successfully delivered to the intended party for any reason whatsoever or for any User Content. We have no obligation to monitor, check or review the legality, validity or accuracy of any User Content.

10.2         The Software is not intended and shall not be deemed to be the provision of any employment, legal, financial or such other professional advice.

10.3         At all times our maximum aggregate liability whatsoever under or relating to this Agreement is equal to the Subscription Fee paid by you under this Agreement.

10.4         Neither party is liable to the other under or in connection with the Agreement for any loss of profit, revenue, savings, business, data, goodwill or indirect, incidental or special damage or loss of any kind.

10.5         The Software is provided 'as is'. We provide no warranties, expressed or implied, and hereby disclaim and negate all other warranties, including without limitation, implied warranties or conditions of fitness for a particular purpose or non-infringement of intellectual property or other violation of rights to the extent permitted by law. We do not warrant or make any representations concerning the accuracy, likely results or reliability of the use of the Software. You agree you have not relied on any representation, warranty or agreement relating to the Software not included in this Agreement.

10.6         The Software does not replace the need for you to maintain regular data backups or retain copies of information as required and for such periods required under all applicable legislation. You are responsible for this. We are not liable in the event that you fail to comply with such obligations.

11.        Termination

11.1         Your subscription is automatically renewed each month and continues until a valid notice of termination is received from you. A valid notice of termination is a written notice from you stating your intention to terminate your subscription which we have received at least 20 Working Days prior to a Payment Date.

11.2         Notwithstanding the above, either party can immediately terminate this Agreement without any liability if the other party:

(a)             breaches any of the terms of this Agreement and, if this breach can be remedied, the breach is not remedied within 20 Working Days of a party notifying the breaching party of its breach;

(b)            becomes insolvent, liquidated or bankrupt, have 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;

11.3         We may terminate this Agreement without any liability if an automatic payment pursuant to clause 3.3 is declined.

11.4         We may also terminate this Agreement for any reason and without any liability by giving you 20 Working Days’ prior written notice.

11.5         Upon termination of this Agreement, you will no longer have access to the Software and all rights granted under the licence to you and all Users cease. Any amounts outstanding on the date of termination become immediately due and payable.

11.6         Termination of this Agreement does not affect either party’s rights or obligations existing prior to termination.

12.        Consumer Guarantees Act 

To the extent permitted by law, the Consumer Guarantees Act 1993 does not apply to your access and use of the Software or this Agreement.

13.        Dispute Resolution

13.1         Where any question, dispute or difference arises between the parties concerning or in any way arising out of the interpretation or performance by any party of the provisions of this agreement, the parties will make a genuine effort to resolve the question, dispute or difference without resorting to litigation, using the procedures set out in this clause.

13.2         The party initiating the question, dispute or difference (“the first party”) shall provide written notice of the same to the other party (“the other party”) and shall nominate in that notice the first party’s representative for the negotiations. The other party shall then promptly give written notice to the first party naming the other party’s representative for the negotiations. Each representative nominated will have authority to settle or resolve the question, dispute or difference.

13.3         If the parties are unable to resolve the dispute by discussion and negotiation within 10 Working Days of receipt of the written notice from the first party, then the dispute shall be referred to Mediation. The Mediation shall in all respects be conducted in terms of the LEADR New Zealand Incorporated standard Mediation Agreement.

13.4         The Mediation shall be conducted by a Mediator in New Zealand and at a fee agreed by the parties, failing agreement between the parties, the Mediator shall be selected, and the mediator’s fee shall be determined by the Chair for the time being of the LEADR New Zealand Incorporated.

13.5         If the dispute remains unresolved 15 working days after commencement of the Mediation, either party may make an application to the District Court to seek determination of the matter.

13.6         To the extent possible, both parties must continue to perform its obligations under the Agreement notwithstanding the dispute.

13.7         Where necessary, the parties are entitled to seek urgent interlocutory and/or injunctive relief notwithstanding good faith negotiations are in place.

14.        Amendments

We may amend this Agreement from time to time on 20 Working Days’ prior written notice. By continuing to use the Software following the amendments coming into effect, you agree to be bound by the then current version of this Agreement.

15.        Interpretation and General

15.1         This Agreement is governed by the laws of New Zealand, and the parties submit to the exclusive jurisdiction of New Zealand courts in respect of any dispute or proceeding arising out of this agreement.

15.2         References to statutes, regulations ordinance or by-laws shall be deemed to extend to all statutes, regulations, ordinances or by-laws amending, consolidating or replacing them.

15.3         This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all previous agreements between the Parties relating to that subject matter.  Each party confirms that, in agreeing to enter into this Agreement, that party has not relied on any representation, warranty, or other assurance except any set out in this Agreement.

15.4         Any changes to this Agreement must be in writing.

15.5         Where either party is unable to perform its obligations under this Agreement because of a strike, lockout, riot, industrial action, fire, storm, tempest, operation of law or other cause beyond the control of that of either party, each party shall be released from its obligations under this Agreement, but this does not affect any pre-existing claim, liability or responsibility in respect of this Agreement.

15.6         You may not assign, novate, subcontract or transfer any of your rights or obligations under this Agreement to a third party without our prior written consent. Any assignment, novation, subcontracting or transfer must be in writing and on terms and conditions we find acceptable.

15.7         Any Change of Control will be deemed to be an assignment, for which our prior written consent is needed.

15.8         Failure by a party at any time to enforce any provision of this Agreement is not a waiver of such provision and does not affect the validity of this Agreement.

15.9         The invalidity of any part of this Agreement will not affect the enforceability of the rest of this Agreement.

15.10       All notices and other communications required or permitted under this Agreement must be in writing and delivered personally or sent by registered post. The notice will be deemed given when it has been delivered personally or the next day after sending by registered post at the address notified by the other party for this purpose.