BLERTER TERMS OF USE

 

1    BLERTER SERVICES AND TERMS OF USE

1.1    The Blerter Services “Blerter” is a cloud service provided by CLOUD M that supports businesses to manage their health and safety information and their workforce.  Blerter connects users together in a health and safety focused network, enabling users of the network to share, track and direct health and safety information.  Blerter is a tool for management of information. 

BLERTER IS NOT A GUARANTEE OF COMPLIANCE WITH ANY LEGAL HEALTH AND SAFETY OBLIGATIONS YOU MAY HAVE.  YOU REMAIN RESPONSIBLE FOR MEETING ANY SUCH LEGAL OBLIGATIONS.

1.2    These Terms apply to your use of Blerter.  By creating a profile on Blerter, registering a business on Blerter, creating or running any Projects on Blerter, and/or accessing and using Blerter, or by downloading or using any Blerter Apps, you:

a.    agree to these Terms; and

b.    where your access and use is on behalf of another person (e.g. a company), confirm you are authorized to, and do in fact, agree to these Terms on that person’s behalf and that person is bound by these Terms. 

1.3    If you do not agree to these Terms, you are not authorized to access or use Blerter or to download or use any Blerter Apps and you must immediately stop your access, downloading and use.  

2    CHANGES

2.1    CLOUD M may change these Terms at any time by updating them on the Blerter App or the Website, including (without limit) updating or adding new fees for the access and use of Blerter.  Unless stated otherwise, any change takes effect immediately.  You are responsible for ensuring you are familiar with the latest Terms.  By continuing to use Blerter and/or downloading and using Blerter Apps, you agree to be bound by the changed Terms.

2.2    CLOUD M may change, suspend, discontinue, or restrict access to Blerter without notice or liability.

2.3    These Terms were last updated 23 October 2015.

3    DEFINITIONS AND INTERPRETATION

3.1    Definitions

In these Terms, the following phrases have the stated meaning: 

Blerter or Blerter Services means the services made available to End Users and includes the following functional components:  

a.    Blerter Apps, including all graphics, content, information, text, video or visual images;

b.    a Blerter platform hosted in the cloud.  It stores and manages Data, authenticates End Users (establishing an account, etc.) and enables communication between the various components comprising Blerter; 

c.    the ability for End Users to access certain Data and features;

d.    access to a CLOUD M microsite that is mobile-optimized and provides your personnel with access to current content and information as well as social network syndication and features;

e.    messaging systems delivering information to your personnel, including email and push notifications; and

f.    Application Programming Interfaces (APIs) for integration with third party systems.

Blerter Apps means the web application(s) available online or the mobile application(s) available to download from the relevant app store for the chosen platform.

Business is a company or organization that is legally entitled to trade or do business in the relevant territory it operates. A Business is represented by an End User who registered the Business in Blerter, or who may be later designated as the Business Owner, and this person represents and agrees to these Terms on behalf of the Business.

Business Partner means an organization designated as a Business Partner by CLOUD M to resell or otherwise support or interact with the Blerter Services.

CLOUD M means CLOUD M Limited, a limited liability company incorporated in New Zealand, and includes any related company as that phrase is defined in the New Zealand Companies Act 1993. 

Confidential Information means any information that is not public knowledge and which is provided or obtained by you in the course of or in connection with your use of Blerter. 

Data:  all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of you or an End User that is stored using, inputted into, or distributed through Blerter.

Employee is a person who is directly employed by a Business.

End User:  any person who downloads a Blerter App that enables the person to access and share Data and access the Blerter Services.

Force Majeure:  an event that is beyond the reasonable control of CLOUD M including riots, acts of war, epidemics, governmental action superimposed after your acceptance of the Terms, legislative change, strikes and other industrial action, communication line or internet failures, power failures, or earthquakes, floods or other disasters.

Intellectual Property Rights:  includes copyright and all worldwide rights conferred under statute, common law or equity relating to inventions (including patents), registered or unregistered trade marks 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.

Loss means any and all claims, damages, loss, liability and costs, including, without limit, legal costs on a solicitor and own client basis. 

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

Personal Information: has the meaning given in the Privacy Act 1993.

Project is a work site, asset, route or similar grouping of a distinct set of work activities which has its own health and safety processes for hazard identification and incident reporting.

Related Services means any additional services provided by CLOUD M or third parties in relation to Blerter under clause 4.5. 

Subcontractor is a Business that is sub-contracting to another Business to perform services on a Project.

Subscription means the right granted by CLOUD M to businesses for the use of the Blerter Services; 

Subscription Fees means mean the fees payable for use of the Blerter Service as set out in the Pricing page ofwww.blerter.com and as may be updated from time to time.

Terms means these terms and conditions titled Blerter Terms of Use, as updated from time to time in accordance with clause 2.

Underlying Systems means the Blerter software owned by CLOUD M (and/or its licensors) and any IT solutions, systems, and networks (including software and hardware) including any third party solutions, systems and networks, used by CLOUD M to provide Blerter. 

User ID means a unique username and/or password.

Website means the internet site at www.blerter.com

Year means the 12-month period starting on the date of your acceptance of the Terms or the anniversary of that date.

You (and your) means the person registering an account to use Blerter, accessing Blerter and/or downloading and using the Blerter App. 

3.2    Interpretation:

a.    Clause and other headings are for ease of reference only and do not affect the interpretation of the Terms.

b.    Singular words include the plural and vice versa.

c.    A reference to:

  1. a person includes an individual, corporation, unincorporated association, or government department;
  2. personnel includes officers, employees, agents and contractors, but a reference to your personnel does not include CLOUD;
  3. including and similar words do not imply any limit; and    

d.    a reference to legislation includes:

  1. that legislation as from time to time amended, re-enacted or substituted; and
  2. any statutory instrument, regulation, rule and order issued under that legislation or provision from time to time.

3.3    The Terms are governed by, and interpreted in accordance with, New Zealand law and the courts of New Zealand have non-exclusive jurisdiction for any dispute or proceeding relating to it.

4    SERVICES

4.1    End Users are authorized to use the personal areas of the Blerter Service free of charge. This includes creating and managing their Profile and Social Connections, and participating in Conversations, Group Chats and any Project-related activities they have access to through their employer.

    Businesses are authorized to use the basic business features of the Blerter Service free of charge. This includes registering your Business, adding End Users as Employees, and participating as a Subcontractor on Projects.

    Premium features such as creating or managing Projects, advanced reporting features and API access require a Business to have an active Subscription and pay the Subscription Fees.

    All Users, including End Users and Businesses must accept the Terms and use Blerter:

a.    in accordance with the Terms and New Zealand law;

b.    exercising reasonable care, skill and diligence; and

c.    if a Business, ensure all Employees are suitably skilled, experienced and qualified in using Blerter and in performing all tasks they will be required to do on Projects where Blerter is used.

4.2    Non-exclusive:  CLOUD M’s provision of Blerter to you is non-exclusive.  Nothing in the Terms prevents CLOUD M from providing Blerter to any other person.

4.3   

a.    CLOUD M does not make any warranty or representation that Blerter will be available on a 24/7 basis.  Without limiting the previous sentence, it is possible that on occasion Blerter may be unavailable, to permit maintenance or other development activity to take place, or in the event of Force Majeure. CLOUD M will use reasonable efforts to publish on the Website advance details of any known periods of unavailability.

b.    Through the use of web service and APIs, Blerter interoperates with a range of third party service features (e.g. location identification).  CLOUD M 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, CLOUD M may cease to make available that feature.  To avoid doubt, if CLOUD M exercises its right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.

4.4    Underlying Systems: development, selection and procurement for any Underlying Systems is entirely at CLOUD M’s option and discretion. 

4.5    Additional Related Services:

a.    From time to time, CLOUD M may provide, or may enable third parties to provide, additional Related Services to supplement Blerter.

b.    Subject to you paying the applicable Fees, and accepting any further terms and conditions relating to the Related Service, CLOUD M may authorize you to use an additional Related Service on those further terms and conditions and these Terms.

5    YOUR OBLIGATIONS

5.1    You, and if a Business your Employees must:

a.    provide true, current and complete information in your dealings with CLOUD M (including in your Profile and Business registration), and must promptly update that information as required so that the information remains true, current and complete;

b.    use Blerter in accordance with the Terms solely for:

  1. your business’ own operational purposes; and
  2. for lawful purposes (including complying with the Unsolicited Electronic Messaging Act 2007); 

c.    not resell Blerter to any third party or otherwise commercially exploit Blerter;

d.    not remove or alter any proprietary or other notice that appears on any material in relation to Blerter, the Blerter Apps, the Website or the Underlying Systems;

e.    not copy, publish, disseminate, reproduce, modify, adapt, create derivative works, translate, decompile, reverse-engineer, or sub-license any such material or Blerter, the Blerter Apps, the Website or the Underlying Systems (or cause or permit any person to do so) except as permitted under the Terms or as permitted by law.

5.2    Access conditions:  When accessing Blerter, you (and if a Business, your Employees) must:

a.    keep your User ID secure and not permit any other person to use your User ID, including (without limit) disclosing or providing it to any other person; 

b.    immediately notify CLOUD M if you become aware of an unauthorized use or disclosure of your User ID, by sending an email to support@blerter.com;

c.    not impersonate another person or misrepresent authorization to act on behalf of others or CLOUD M;

d.    correctly identify the sender of all electronic transmissions;

e.    not attempt to undermine the security or integrity of the Underlying Systems;

f.    not use, or misuse, Blerter in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use Blerter;

g.    not attempt to view, access or copy any material or data other than that to which you are authorized to access; and

h.    neither use Blerter 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.

5.3    Employees:  To avoid doubt, a breach of clauses 5.1 and/or 5.2 of the Terms by your Employees is deemed to be a breach of the Terms by you.

5.4    Authorizations:  You are responsible for procuring all licenses, authorizations and consents (including End User consent) required to use Blerter, including to use, store and input in Data, and process and distribute Data through, Blerter. 

5.5    Confidential Information:  You agree to keep confidential at all times any Confidential Information and ensure that any personnel or professional advisor or End Users joined to your Blerter network are aware of and comply with the provisions of this clause. Your obligation under this clause continues even after you have stopped using Blerter.

6    FEES, PAYMENT AND REFUNDS

6.1    If you wish to use any Premium Features you must pay to CLOUD M or its Business Partner the Subscription Fees.     Payment must be by way of Credit Card unless you either have an approved Invoice Account with CLOUD M, or you have a billing agreement with an authorized Business Partner. Payment must be made in accordance with any applicable terms and conditions governing the use of any third party specific payment means, including without limitation by way of credit card or Business Partner agreement. 

6.2    If you have an approved Invoice Account you must pay your invoice: 

a.    within 14 days of the date of invoice; and

b.    electronically in cleared funds.

6.3    CLOUD M may charge interest on overdue amounts.  Interest will be calculated from the due date to the date of payment at a rate of 2% per month.

6.4    You can request a refund of your subscription payment provided you make the request within 30 days of the start of the billing period you are requesting the refund for and you have not created any projects or used any Premium Features during that time. Requests for refund should be made by email to: support@blerter.com.

6.5    You are responsible for any telecommunications charges applied by your telecommunications provider in respect of SMS messages, data and calls.

7    DATA      

7.1     CLOUD M access to Data:  

a.    You acknowledge that CLOUD M may require access to the Data to provide Blerter to you.  To the extent that this is necessary, CLOUD M may authorize a member or members of its personnel to access the Data for this purpose. 

b.    You agree that CLOUD M may retain and aggregate Data for the purpose of providing other CLOUD M services to its general customer base and for marketing purposes, provided that such use does not enable the identification of any individual, i.e. is anonymized.

c.    You agree that CLOUD M may collect information electronically about your usage levels, including number of End Users, to verify your compliance with the Terms and Fees which apply to your use of Blerter;

d.    You must arrange all necessary consents and approvals for CLOUD M to access the Data as described in clauses 7.1a to 7.1c.

7.2    Agent:  

a.    You acknowledge and agree that to the extent that Data contains Personal Information, in collecting, holding and processing that information through Blerter, CLOUD M is acting as your agent for the purposes of the Privacy Act 1993 and any other applicable privacy law.

b.    You must obtain all necessary consents from the relevant individual to enable CLOUD M to collect, use, hold and process that information in accordance with the Terms and you agree to ensure that you collect, use, hold and process any Data in accordance with your obligations under the Privacy Act 1993 and any other applicable privacy law.

7.3    Backups of Data:  CLOUD M will use reasonable efforts to take standard industry measures to back up all Data stored using Blerter, however, you agree to keep a separate back-up copy of all Data you upload onto Blerter.

7.4    International storage of Data:  You agree that CLOUD M may store and access Data (including any Personal Information) in secure servers in countries outside New Zealand, including in the United States of America. 

7.5    Indemnity:  You indemnify CLOUD M against any liability, claim, cost (including the actual legal fees charged by CLOUD M’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.

8    INTELLECTUAL PROPERTY

8.1    Ownership:  

a.    Subject to clause 8.1b, title to, and all Intellectual Property Rights in, Blerter, the Blerter Apps, the Website, and all Underlying Systems is and remains the property of CLOUD M (and/or its licensors).  You must not dispute that ownership.

b.    Title to, and all Intellectual Property Rights in, the Data (as between you and CLOUD M) remains your property.  You grant CLOUD M a worldwide, non-exclusive, fully paid up, transferable, irrevocable license to use, store, copy, modify, make available and communicate the Data for any purposes in connection with the exercise of CLOUD M’s rights and performance of its obligations in accordance with the Terms. 

8.2    Know how:  To the extent not owned by CLOUD M, you grant CLOUD M a royalty-free, irrevocable and perpetual license to use any know how, techniques, ideas, methodologies, and similar Intellectual Property used by CLOUD M in the provision of Blerter.

8.3    Feedback: If you provide feedback, recommendations, contributions, or suggestions, (together feedback) to CLOUD M in respect of Blerter or Underlying Systems, all Intellectual Property in that feedback and any new material created or modification made to Blerter or Underlying Systems as a result of that feedback will be owned solely by CLOUD M.

8.4    News feeds, third party sites and material: You acknowledge that Blerter may from time to time provide news feeds or link to third party websites or feeds that are connected or relevant to Blerter.  Any information, link or feed provided is by way of general interest only and does not imply any accuracy, CLOUD M endorsement, approval or recommendation of, or responsibility for, that information or those websites or feeds or their content or operators.  To the maximum extent permitted by law, CLOUD M excludes all responsibility or liability for that information, those websites or feeds. 

9    WARRANTIES

9.1    Authority:  You warrant that you have full power and authority to enter into and perform your rights and obligations under the Terms including without limitation the power and authority to join and manage any End Users joined to your Blerter network.

9.2    Exclusions:  

a.    To the maximum extent permitted by law, CLOUD M’s warranties are limited to those set out in the Terms and any implied condition or warranty (including any warranty under the New Zealand Sale of Goods Act 1908) is excluded.  Without limiting the previous sentence, CLOUD M does not warrant that Blerter:

  1. will meet your requirements or be suitable for a particular purpose, including that the use of Blerter will fulfill or meet any statutory role or responsibility you may have, including without limitation, any responsibilities you may have under New Zealand health and safety legislation; or
  2. will be secure, free of viruses or other harmful code, uninterrupted or error free.

b.     You agree and represent that you are using Blerter for the purposes of a business and that the New Zealand Consumer Guarantees Act 1993 does not apply to the supply of Blerter or the Terms.  

9.3    Limitation of remedies:  Where legislation or rule of law implies into the Terms 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 CLOUD M for any breach of that condition or warranty is limited, at CLOUD M’s option, to:

a.    supplying Blerter again; and/or

b.    paying the costs of having Blerter supplied again.

10    LIMITATION OF LIABILITY

10.1    Maximum liability:  The maximum aggregate liability of CLOUD M under or in connection with the use of Blerter in any Year, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the total Subscription Fees paid by you in the previous Year.

10.2    Unrecoverable losses:  CLOUD M is not liable for any: 

a.    loss of profit, use, revenue, data (including Data), savings, business, and/or goodwill, or

b.    other indirect, consequential or incidental loss or damage arising under or in connection with the Terms or the Blerter Services.

10.3    No liability for your failure:  CLOUD M will not be responsible, liable, or held to be in breach of the Terms for any failure to perform its obligations under the Terms or otherwise, to the extent that such failure is directly attributable to you failing to comply with your obligations under the Terms, or to your or your Employee’s or End User’s negligence or misconduct.

10.4    Time bar:  In any event, CLOUD M will not be liable to you in respect of any claim under or in connection with the Terms or Blerter unless that claim is notified in writing to CLOUD M within 12 months of the date that the circumstances giving rise to the claim were reasonably discoverable to you.

11    INDEMNITY

11.1    You indemnify CLOUD M against all Loss that CLOUD M suffers or incurs as a direct or indirect result of your failure (and the failure of any person who accesses and uses Blerter using your User ID) to comply with these Terms.

12    SUSPENSION AND TERMINATION

12.1    Suspending or terminating access: Without limiting any other right or remedy available to CLOUD M, CLOUD M may immediately and without notice restrict or suspend your, or any End User’s, access to Blerter where CLOUD M considers that you (including your personnel) or an End User have:

a.    undermined, or attempted to undermine, the security or integrity of Blerter or any Underlying Systems;

b.    used, or attempted to use, Blerter:

  1. for improper purposes; or
  2. in a manner, other than for normal operational purposes, that materially reduces the operational performance of Blerter; or
  3. is an unreasonable use of Blerter; or

c.    has otherwise breached the Terms.

12.2    On suspension or termination under clause 12.1, you must immediately cease using Blerter and must not attempt to gain further access.

12.3    You may terminate your use of Blerter at any time and for any reason by giving 30 days notice via email tosupport@blerter.com.

12.4    Except as provided in clause 12.1 CLOUD M may terminate your use of Blerter at any time and for any reason by giving 30 days notice via email to the email address in your Profile.

12.5    On termination for any reason you will no longer be able to access or use Blerter and your connection to other Blerter End Users will be removed. If you are a Business, your Employees will no longer be linked to your Business. You acknowledge that any Data may continue to be relevant to other End Users even after you have ceased using Blerter and you grant a license to such End Users to continue to use such Data as is reasonably necessary for them to continue to properly use Blerter.  

12.6    On termination for any reason, clauses 7.5, 8, 10 and 11.1 (and any other clauses which expressly or by implication have continuing effect), continue to apply.

13    DISPUTES

13.1    Arising of Disputes:  If a dispute arises out of or relates to these Terms (“the Dispute”) neither we nor you may commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause, except where the party seeks urgent interlocutory relief:

a.    A party claiming the Dispute has arisen under or in relation to these Terms must give written notice to the other party specifying the nature of the Dispute;

b.    On receipt of that notice, the parties will use all reasonable endeavors to resolve the Dispute by discussion, consultation, negotiation, mediation or other informal means;

c.    If the Dispute is not resolved within 15 Working Days of the notice being given pursuant to this clause 13 (a) (or within such further period agreed in writing by the parties) either party may, by giving written notice to the other party, require the Dispute to be determined by the arbitration of a single arbitrator;

d.    The arbitrator will be appointed by the parties or, failing agreement within 5 Working Days of the notice requiring arbitration, by the President or Vice President of the New Zealand Law Society or by the New Zealand Dispute Resolution Centre (NZDRC) on application of either party. The arbitration will be conducted as soon as possible and in accordance with the provisions of the Arbitration Act 1996 and the Arbitration Amendment Act 2007.

14    GENERAL PROVISIONS

14.1    Force Majeure:  CLOUD M is not liable to you for any failure to perform its obligations under the Terms to the extent caused by Force Majeure. 

14.2    Rights of third parties:  No person other than CLOUD M or a Business Partner and you have any right to a benefit under, or to enforce, the Terms.

14.3    Waiver:  If CLOUD M does not exercise or enforce any right available to it under the Terms, it does not constitute a waiver of that right.

14.4    Independent contractor:  Subject to clause 7.2a, CLOUD M is an independent contractor of yours.  No other relationship (e.g. joint venture, agency, trust or partnership) exists between you and CLOUD M under the Terms.

14.5    Notices:  If CLOUD M needs to contact you, it may do so by email, by sending a message within the Blerter system or Blerter App or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications.  

14.6    Severability:  Any illegality, unenforceability or invalidity of one of the Terms does not affect the legality, enforceability or validity of the remaining Terms. If any part or provision of the Terms is illegal, unenforceable, or invalid, that part or provision is replaced with a provision that, as far as possible, accomplishes the original purpose of that part or provision.  

14.7    Subcontracting and assignment:  

a.    You must not assign, subcontract or transfer any of your rights or obligations under the Terms without the prior written consent of CLOUD M.  You remain liable for your obligations under the Terms despite any approved assignment, subcontracting, or

b.    CLOUD M may appoint (or change) a subcontractor to provide any or all of Blerter, including providing the Underlying Systems used to provide Blerter. 

14.8    Entire Agreement:  Except where other terms are incorporated by reference, the Terms constitute the whole agreement between you and CLOUD M and supersede and cancel any previous agreement.  No representation, warranty or agreement relating to the subject matter of the Terms that is not expressly set out in the Terms has any force from your acceptance of the Terms.  Without limiting the previous sentence, you agree that sections 9, 12A, 13 and 14(1) of the New Zealand Fair Trading Act 1986 do not apply.

15     TERMS FOR APPLE APP STORE DOWNLOADS

15.1    If you have downloaded a Blerter App from the Apple App Store the following additional terms and conditions apply:

a.    These Terms are solely between you and us and not with Apple. We (and not Apple) are solely responsible for the App and its content (subject to these Terms);

b.    You acknowledge that Apple has no obligation to furnish any maintenance or support services to you in connection with the App;

c.    In the event of any failure of the App to conform to any warranty that might be contained or implied into these Terms, you may notify Apple, and Apple will refund the purchase price (if any) for the App. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App;

d.    Any claim in connection with the App related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation or intellectual property infringement are governed by these Terms, and Apple is not responsible for such claims; 

e.    You will comply with the App Store Terms of Service including the Usage Rules; 

f.    You represent and warrant that you are not located in any U.S. embargoed countries or on any U.S. Government list of prohibited or restricted parties;

g.    Apple and its subsidiaries are third party beneficiaries to these Terms and, upon your acceptance of them, Apple will have the right to enforce these Terms against you;

h.    All other terms and conditions of these Terms apply to your use of the App.