These Terms of Use were last updated on 30 June 2026.
Welcome to Smartspec, a digital specification writing tool that allows you to create professional, council-ready specifications faster.
These Terms of Use set out our, and your, rights and obligations in relation to your use of Smartspec. Please read these Terms of Use carefully before registering to use Smartspec.
By using Smartspec, you agree to follow and be bound by these Terms of Use. If you do not agree to all the Terms of Use, you must not use Smartspec.
For any questions regarding these Terms of Use, please contact [email protected].
1. Definitions and Interpretation
1.1
In this Agreement, unless the context requires otherwise:
In this Agreement, unless the context requires otherwise:
Administration Portal means the parts of the Smartspec Website accessible by the Subscriber (or an Authorised User with administrative privileges) that allows the Subscriber to:
(a)add, remove or change Authorised Users;
(b)manage or update the Subscriber’s account and payment details;
(c)view and download invoices or statements;
(d)change the Subscription Plan; and
(e)add, remove or change details in relation to the Subscriber’s account with us;
Agreement means the contract formed between the Subscriber and Smartspec comprising:
(a)these Terms of Use;
(b)the details of the Subscription Plan selected by the Subscriber during the online registration or upgrade process; and
(c)any other terms expressly agreed in writing between the parties;
Annual Subscription Term means the initial 12-month annual period commencing on the date the Subscriber is first granted access to the selected Subscription Plan, and any subsequent 12-month renewal periods, until the Subscription Plan is cancelled in accordance with this Agreement;
Authorised User means any employee, contractor, officer or agent of the Subscriber’s business who is authorised by the Subscriber to access and use the Subscription Services and Documentation;
Business Day means a day other than a Saturday, Sunday or public holiday in Auckland, New Zealand;
Commencement Date means the earlier of:
(a)the date the Subscriber agrees to this Agreement; or
(b)the date the Subscriber is first granted access to the selected Subscription Plan enabling the Subscriber to use the Subscription Services;
Confidential Information means any information relating to the business or affairs of a party including, without limitation:
(a)its designs, drawings, manufacturing know how, object code, source code, planned modifications to hardware or software, planned enhancements to hardware or software, product knowledge, quality standards, research and development, unpublished specifications, technical information, pricing, manipulated data, business plans, business processes, methodologies, techniques, general know-how, costs and margins, customer lists, financial data, internal price information, market research, marketing plans, sales forecasts and trade secrets,
but does not include information which:
(b)can be established by written records to be already known to the recipient at the time of disclosure; or
(c)is in or enters the public domain through no fault of the recipient;
Documentation means the documentation, user guides, and instruction manuals (if any) made available to you by us through the Services, which sets out a description of the Subscription Services and the user instructions for the Subscription Services;
Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;
Privacy Policy means our privacy policy located at https://smartspec.co.nz/privacy-policy/;
Related Company has the meaning given in section 2(3) of the Companies Act 1993;
Services means the Subscription Services and Support Services;
Subscriber means the individual or legal entity entering into this Agreement to purchase the Subscription Plan that registers to use or receive the Subscription Services;
Subscription Fee means the fees payable for the Subscriber’s and its Authorised Users’ access to and use of the relevant Subscription Services under the applicable Subscription Plan, as set out in the pricing page of the Smartspec Website or as otherwise agreed between the parties in writing, which may include:
(a)annual subscription fees based on the Subscriber’s selected Subscription Plan, payable either upfront or in monthly instalments at the Subscriber’s election;
(b)one-off activation or setup fees; and/or
(c)per-project fees for specifications created or exported outside of a paid subscription plan;
Subscription Plan means the specific Smartspec annual subscription tier, and associated Subscription Fees, features and usage limits the Subscriber has selected, as described on the Smartspec Website at the time of selection, including the Subscriber’s elected billing frequency (upfront annual payment or monthly instalments);
Subscription Services means the Smartspec specification writing tools, integration features, and related functionalities made available to you via the Smartspec Website, as applicable to your selected Subscription Plan;
Supplier means a third-party manufacturer, distributor or supplier of materials, products or services whose information, product details or specifications are made available on or through the Subscription Services;
Support Services has the meaning set out in clause 5.1;
Smartspec Website means the website located at smartspec.co.nz or any other URL address notified to you by us from time to time;
Term has the meaning set out in clause 2;
Third Party Provider has the meaning set out in clause 10.5(b);
Third Party Information has the meaning set out in clause 10.5(c);
Virus means any thing or device (including any software, code, file or program) which may:
(a)prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device;
(b)prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or
(c)adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
we, our and us refers to Productspec Limited trading as Smartspec;
you and your refers to:
(a)the Subscriber; or
(b)where the context permits, the Authorised Users;
Your Data means the data input by you for the purpose of using the Subscription Services or facilitating your use of the Subscription Services, including, where applicable, Authorised Users’ data.
1.2
In this Agreement, unless the context requires otherwise:
In this Agreement, unless the context requires otherwise:
(a)words importing one gender include the others;
(b)words importing the singular or plural number include the plural and singular number respectively;
(c)headings are inserted for convenience of reference only and do not affect the interpretation of this Agreement; and
(d)a person includes any individual, corporation, unincorporated association, government department or municipal authority.
2. Term
2.1
This Agreement starts on the Commencement Date and, unless terminated earlier in accordance with its terms, will continue for the Annual Subscription Term. Subject to your express rights to receive a refund under clauses 10.2 and 11.5, you will remain liable for all Subscription Fees for the full Annual Subscription Term regardless of whether you cancel or cease using the Subscription Services before the end of that term.
This Agreement starts on the Commencement Date and, unless terminated earlier in accordance with its terms, will continue for the Annual Subscription Term. Subject to your express rights to receive a refund under clauses 10.2 and 11.5, you will remain liable for all Subscription Fees for the full Annual Subscription Term regardless of whether you cancel or cease using the Subscription Services before the end of that term.
2.2
On expiry of the first Annual Subscription Term and any subsequent renewal Term(s), the Agreement will automatically renew for a further Annual Subscription Term unless:
On expiry of the first Annual Subscription Term and any subsequent renewal Term(s), the Agreement will automatically renew for a further Annual Subscription Term unless:
(a)you give us your written notice of cancellation to [email protected] before the end of the current Annual Subscription Term, in which case the Agreement will terminate upon the expiry of the current Annual Subscription Term; or
(b)the Agreement is otherwise terminated in accordance with its terms.
2.3
We will give you notice by email a reasonable time before the end of your current Annual Subscription Term reminding you of the upcoming renewal and how to cancel if you do not wish to renew.
We will give you notice by email a reasonable time before the end of your current Annual Subscription Term reminding you of the upcoming renewal and how to cancel if you do not wish to renew.
2.4
The period from the Commencement Date to the end of the first Annual Subscription Term together with all subsequent Annual Subscription Terms that the Agreement renews for will be the Term of this Agreement.
The period from the Commencement Date to the end of the first Annual Subscription Term together with all subsequent Annual Subscription Terms that the Agreement renews for will be the Term of this Agreement.
3. Your Right to Use the Subscription Services
3.1
We grant you a non-exclusive, non-transferable right to:
We grant you a non-exclusive, non-transferable right to:
(a)access and use the Subscription Services that you have subscribed to, and the relevant Documentation; and
(b)permit any Authorised User, permitted under the relevant Subscription Plan, to use the Subscription Services and the Documentation,
(c)solely for the Subscriber’s own internal business purposes, all on the terms and conditions set out in this Agreement.
3.2
You will, and will ensure that your Authorised Users:
You will, and will ensure that your Authorised Users:
(a)comply with all applicable laws (including privacy and data protection laws in respect of the collection, use and disclosure of personal information included in Your Data) with respect to the use of the Subscription Service and your activities under this Agreement;
(b)keep secure and confidential logins and passwords for access to and use of the Subscription Services and Documentation;
(c)use all reasonable endeavours to prevent any unauthorised access to, or use of, the Subscription Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify us;
(d)allow us at any time to audit your or your Authorised Users’ use of the Subscription Services in order to establish whether the Subscription Services are being used in accordance with this Agreement;
(e)promptly disable any login account if we discover (through undertaking the audits referred to in clause 3.2(d)) that any login details have been provided to any third party. You acknowledge that if you fail to do so, we may immediately disable the login account;
(f)on demand, pay to us any underpayment of Subscription Fees discovered through undertaking the audits referred to in clause 3.2(d); and
(g)ensure that your network and systems comply with the relevant specifications as may be specified by us from time to time.
3.3
If your Subscription Plan allows Authorised Users to access Subscription Services, you may allow Authorised Users to access and use the Subscription Services in accordance with clause 3.1. Without limiting any of your obligations under this Agreement:
If your Subscription Plan allows Authorised Users to access Subscription Services, you may allow Authorised Users to access and use the Subscription Services in accordance with clause 3.1. Without limiting any of your obligations under this Agreement:
(a)you will be responsible for managing Authorised User access through the Administration Portal (or by contacting us directly). You acknowledge that we will not be responsible for your use of, inability to use, or incorrect use of, the Subscription Services arising out of or in connection with:
(i)any act or omission of the Authorised Users; or
(ii)your management of Authorised User access;
(b)you will notify Authorised Users, and procure Authorised Users to agree, that use of the Subscription Services is subject to the following terms and conditions:
(i)Authorised Users will comply with this Agreement;
(ii)we will have no liability to Authorised Users (whether direct or indirect) arising out of or in connection with their use of the Subscription Services; and
(c)any act or omission of Authorised Users relating to the use of the Subscription Services will be treated as your act or omission. We may terminate any authority you have granted to any Authorised User if we consider that the relevant Authorised User is in breach of this Agreement or puts you in breach of this Agreement.
3.4
You will be solely responsible for:
You will be solely responsible for:
(a)procuring and maintaining your network connections and telecommunications links from your systems to the Subscription Services; and
(b)all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
3.5
You will not:
You will not:
(a)except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i)except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Subscription Services and/or Documentation (as applicable) in any form or media or by any means; or
(ii)attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Subscription Services;
(b)access all or any part of the Subscription Services and Documentation in order to build a product or service which competes with the Subscription Services and/or the Documentation;
(c)use the Subscription Services and/or Documentation to provide services similar to the Subscription Services to third parties (other than to Authorised Users in accordance with this Agreement);
(d)copy, scrape, extract or use any Third Party Information for any purpose outside of your normal use of the Subscription Services, or to create a competing product or database;
(e)use the Subscription Services and/or Documentation for fraudulent or unlawful purposes;
(f)attempt to undermine the integrity or security of the Subscription Services or any third party’s systems, networks or resources used in the provision of the Subscription Services;
(g)attempt to gain access to any information or materials other than those to which you have been given express permission to access as part of the Subscription Services;
(h)make the Subscription Services and/or Documentation available to any third party (other than to Authorised Users in accordance with this Agreement); or
(i)access, store, distribute or transmit any Viruses.
3.6
We may, without liability to you, disable your access to the Subscription Services if you are in breach of this clause 3.5.
We may, without liability to you, disable your access to the Subscription Services if you are in breach of this clause 3.5.
3.7
You acknowledge that the Subscription Services are continually evolving and we may regularly upgrade, update, modify, or remove features of the Subscription Services. Where reasonably practicable, we will provide you with advance notice of planned maintenance or changes that we consider will materially impact your use of the Subscription Services. If we make a change that materially reduces the core functionality of the Subscription Services, you may terminate this Agreement by giving us written notice within 30 days of the change taking effect. If you terminate under this clause, clause 11.5 will apply.
You acknowledge that the Subscription Services are continually evolving and we may regularly upgrade, update, modify, or remove features of the Subscription Services. Where reasonably practicable, we will provide you with advance notice of planned maintenance or changes that we consider will materially impact your use of the Subscription Services. If we make a change that materially reduces the core functionality of the Subscription Services, you may terminate this Agreement by giving us written notice within 30 days of the change taking effect. If you terminate under this clause, clause 11.5 will apply.
3.8
The Subscription Services may include features that integrate or interoperate with third party software, applications, or platforms (Integrations). To use these Integrations, you must obtain your own access and licenses for the relevant third party software. You acknowledge that Integrations rely on the continuing availability and compatibility of the third party software. If the provider of the third party software changes the software, or ceases to make it available or compatible with Smartspec on reasonable terms, we may suspend or cease providing the relevant Integration without liability to you.
The Subscription Services may include features that integrate or interoperate with third party software, applications, or platforms (Integrations). To use these Integrations, you must obtain your own access and licenses for the relevant third party software. You acknowledge that Integrations rely on the continuing availability and compatibility of the third party software. If the provider of the third party software changes the software, or ceases to make it available or compatible with Smartspec on reasonable terms, we may suspend or cease providing the relevant Integration without liability to you.
4. Changing Authorised Users and Subscription Plan
4.1
You may add, remove or change Authorised Users through the Administration Portal, only if your Subscription Plan allows for multiple users and subject to the user limits applicable under your Subscription Plan.
You may add, remove or change Authorised Users through the Administration Portal, only if your Subscription Plan allows for multiple users and subject to the user limits applicable under your Subscription Plan.
4.2
If you downgrade your Subscription Plan:
If you downgrade your Subscription Plan:
(a)the downgrade will not take effect until the expiry of your current Annual Subscription Term;
(b)you will retain access to the features of your current Subscription Plan until that expiry date;
(c)no refund will be provided for any unused portion of any Subscription Fees already paid for the higher Subscription Plan; and
(d)upon renewal, your account will automatically downgrade to the newly selected Subscription Plan.
(e)You acknowledge that different Subscription Plans provide access to different features and functionality and downgrading your Subscription Plan may cause the loss of data, content, features, capacity or Authorised User access of your account, and we do not accept any liability for such losses.
4.3
If you upgrade your Subscription Plan, the balance already paid for the remainder of your Annual Subscription Term will be credited against the fees due for your upgraded Subscription Plan. We will charge you for any net amount due as a result of the upgrade and your new Subscription Plan and Annual Subscription Term will begin on the date of the upgrade.
If you upgrade your Subscription Plan, the balance already paid for the remainder of your Annual Subscription Term will be credited against the fees due for your upgraded Subscription Plan. We will charge you for any net amount due as a result of the upgrade and your new Subscription Plan and Annual Subscription Term will begin on the date of the upgrade.
5. Support Services
5.1
We will provide support in relation to the Subscription Services (Support Services) as described on the Smartspec Website. Support enquiries may be submitted through the support channels described on the Smartspec Website, including our support helpdesk. We may update or change the Support Services from time to time. If we make a change to the Support Services that materially and adversely affects your use of the Subscription Services, such change will be treated as a material reduction in Core Functionality under clause 3.6, and the notice and termination rights in that clause will apply.
We will provide support in relation to the Subscription Services (Support Services) as described on the Smartspec Website. Support enquiries may be submitted through the support channels described on the Smartspec Website, including our support helpdesk. We may update or change the Support Services from time to time. If we make a change to the Support Services that materially and adversely affects your use of the Subscription Services, such change will be treated as a material reduction in Core Functionality under clause 3.6, and the notice and termination rights in that clause will apply.
6. Your Data
6.1
If you provide us with personal information, our Privacy Policy applies. Please read the Privacy Policy carefully as it forms a part of this Agreement.
If you provide us with personal information, our Privacy Policy applies. Please read the Privacy Policy carefully as it forms a part of this Agreement.
6.2
You acknowledge and agree that you will have sole responsibility for:
You acknowledge and agree that you will have sole responsibility for:
(a)ensuring that all of Your Data that we require to provide the Subscription Services under this Agreement is provided to us;
(b)the legality, reliability, integrity, accuracy and quality of Your Data;
(c)reviewing and ensuring the accuracy and correctness of all outputs and results from your provision of Your Data to, and use of, the Subscription Services, including results and outputs generated and executed by the features within the Subscription Services, including our templating, duplicate, auto update and any integration features; and
(d)ensuring compliance with all applicable laws, including any record keeping requirements that apply to you.
6.3
Each party will take appropriate technical, physical and organisational measures and safeguards against unauthorised or unlawful processing of Your Data or its accidental loss, destruction or damage and we will, as part of these measures, use reasonable endeavours to back-up Your Data. You acknowledge that you are solely responsible for keeping independent back-up copies of Your Data, and if there is any loss or damage to Your Data, your sole and exclusive remedy will be for us to use reasonable commercial endeavours to restore such lost or damaged data from our latest available back-up. We will not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party.
Each party will take appropriate technical, physical and organisational measures and safeguards against unauthorised or unlawful processing of Your Data or its accidental loss, destruction or damage and we will, as part of these measures, use reasonable endeavours to back-up Your Data. You acknowledge that you are solely responsible for keeping independent back-up copies of Your Data, and if there is any loss or damage to Your Data, your sole and exclusive remedy will be for us to use reasonable commercial endeavours to restore such lost or damaged data from our latest available back-up. We will not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party.
6.4
You acknowledge and agree that, subject to our Privacy Policy, we may use Your Data for the purpose of:
You acknowledge and agree that, subject to our Privacy Policy, we may use Your Data for the purpose of:
(a)performing our obligations under this Agreement;
(b)ensuring that you are complying with the terms and conditions of this Agreement;
(c)analysing your use of the Services;
(d)improving or enhancing the Services and their features (including any artificial intelligence or machine learning features);
(e)generating and providing reporting to Suppliers regarding the specification of their products (subject to clause 6.5(c)); and
(f)performing data analysis and generating insights on an aggregated and/or anonymised basis.
6.5
Where we provide reporting to Suppliers under clause 6.4(e):
Where we provide reporting to Suppliers under clause 6.4(e):
(a)the reporting may contain your name, the project name, the product name, the project stage or status, the specification date, and the project location;
(b)if you select the confidential project option within the Subscription Services, we will withhold your company name and project name from the Supplier reporting, but may still disclose the remaining project details listed in paragraph (a); and
(c)you are solely responsible for ensuring you select the confidential project option if required.
6.6
You warrant that you are authorised to provide Your Data to us so that we can provide the Subscription Services to you and utilise it in the manner set out in clause 6.5.
You warrant that you are authorised to provide Your Data to us so that we can provide the Subscription Services to you and utilise it in the manner set out in clause 6.5.
7. Charges and Payment
7.1
You will pay the Subscription Fees to us at the rates set out on the Smartspec Website in accordance with this clause 7 and in accordance with the Subscription Plan selected by you. Subscription Fees are payable in advance. Annual upfront payments are due on the Commencement Date and on each renewal date. Monthly instalment payments are due at the start of each monthly billing cycle.
You will pay the Subscription Fees to us at the rates set out on the Smartspec Website in accordance with this clause 7 and in accordance with the Subscription Plan selected by you. Subscription Fees are payable in advance. Annual upfront payments are due on the Commencement Date and on each renewal date. Monthly instalment payments are due at the start of each monthly billing cycle.
7.2
We will make a valid tax invoice available to you through the Administration Portal for all Subscription Fees payable. All Subscription Fees will be automatically charged to the payment method associated with your account, and you authorise us to process those payments on the applicable billing date. If you fail to pay any fees when due, then (without prejudice to our other rights and remedies):
We will make a valid tax invoice available to you through the Administration Portal for all Subscription Fees payable. All Subscription Fees will be automatically charged to the payment method associated with your account, and you authorise us to process those payments on the applicable billing date. If you fail to pay any fees when due, then (without prejudice to our other rights and remedies):
(a)we may, without liability to you, disable access to, or suspend the provision of, all or part of the Services, and will be under no obligation to provide any or all of the Services while the outstanding invoice(s) remain unpaid; and/or
(b)interest will accrue on such overdue amounts at an annual rate equal to 2% over the then current base overdraft rate of our bankers calculated from the due date until the date the amount is paid in full.
7.3
All amounts stated or referred to in this Agreement are exclusive of GST (if any), and unless otherwise stated, are specified in New Zealand dollars.
All amounts stated or referred to in this Agreement are exclusive of GST (if any), and unless otherwise stated, are specified in New Zealand dollars.
7.4
We may update our Subscription Fees from time to time. These changes will apply immediately for new subscriptions. For existing Subscribers, any changes to your Subscription Fees will only take effect upon the renewal of your current Annual Subscription Term. We will provide you with at least 30 days’ prior written notice of any pricing increase. If you do not agree to the increase, you may cancel your Subscription Plan prior to your next renewal date, in which case the cancellation will take effect at the expiry of your current Annual Subscription Term.
We may update our Subscription Fees from time to time. These changes will apply immediately for new subscriptions. For existing Subscribers, any changes to your Subscription Fees will only take effect upon the renewal of your current Annual Subscription Term. We will provide you with at least 30 days’ prior written notice of any pricing increase. If you do not agree to the increase, you may cancel your Subscription Plan prior to your next renewal date, in which case the cancellation will take effect at the expiry of your current Annual Subscription Term.
7.5
If you register for a free trial of the Subscription Services:
If you register for a free trial of the Subscription Services:
(a)you acknowledge that each Subscriber is only entitled to one free trial of the Subscription Services;
(b)the free trial of the Subscription Services is only available for the subscription option described on the Smartspec Website from time to time, and may include limited features or reduced functionality compared to paid Subscription Plans;
(c)we reserve the right to determine your eligibility for a free trial and may refuse to provide a free trial if (acting reasonably) we determine there is a valid reason, including where we reasonably believe you have already received a free trial (whether directly or indirectly);
(d)the free trial will run for the period advertised on the Smartspec Website at the time of your registration;
(e)at the end of the trial period, if you have provided valid payment details, your account will automatically convert to the applicable paid Subscription Plan; and
(f)if you have not provided valid payment details by the end of the trial period, we may suspend or cancel your account, which may result in the permanent deletion of your project history and Your Data.
8. Intellectual Property Rights
8.1
We and/or our licensors own all Intellectual Property Rights in the:
We and/or our licensors own all Intellectual Property Rights in the:
(a)Services (except Your Data); and
(b)Documentation,
(c)together with all modifications, enhancements and other developments to the Services and Documentation (whether or not recommended or suggested by you). Except as expressly stated in this Agreement, this Agreement does not grant you any rights to, or in, the Intellectual Property Rights, or any other rights or licences in respect of the Services or the Documentation.
8.2
You own the Intellectual Property Rights in Your Data. You grant to us a non-exclusive right to use Your Data in the manner contemplated in this Agreement.
You own the Intellectual Property Rights in Your Data. You grant to us a non-exclusive right to use Your Data in the manner contemplated in this Agreement.
9. Confidentiality
9.1
Except as expressly permitted in this Agreement, you and we both agree:
Except as expressly permitted in this Agreement, you and we both agree:
(a)not to use the other party’s Confidential Information for any purpose other than complying with this Agreement;
(b)to take reasonable steps to protect the other party’s Confidential Information from being accessed by unauthorised individuals; and
(c)not to divulge the other party’s Confidential Information to any persons (except to their employees or contractors (for whom that party will be responsible) and then only to those employees or contractors who need to know) without the other party’s prior written consent.
9.2
Each party will on demand, deliver to the other party all Confidential Information and any other document supplied by or obtained from the other party.
Each party will on demand, deliver to the other party all Confidential Information and any other document supplied by or obtained from the other party.
9.3
We may publicly refer to or publicise your use of the Subscription Services to promote the Subscription Services, including:
We may publicly refer to or publicise your use of the Subscription Services to promote the Subscription Services, including:
(a)your business name;
(b)the Subscription Services that you use, and how the specific Subscription Services that you subscribe to have been used by you; and
(c)any information that we may ascertain or receive from you about the quantitative and/or qualitative value our Subscription Services have added to your business.
9.4
This clause 9 will survive termination of this Agreement.
This clause 9 will survive termination of this Agreement.
10. Warranties and Liability
10.1
Subject to clauses 10.4 and 10.5, we warrant that:
Subject to clauses 10.4 and 10.5, we warrant that:
(a)the Subscription Services will function substantially as described on the Smartspec Website and in the Documentation; and
(b)to the best of our knowledge and belief, the Subscription Services (excluding any information referred to in clause 10.5(c)) do not infringe the copyright of any third party (IP Warranty) and we will indemnify you against any loss or damage that you incur arising out of a breach by us of the IP Warranty.
10.2
If the Subscription Services do not function substantially in accordance with the Smartspec Website and Documentation, we will, at our option, either:
If the Subscription Services do not function substantially in accordance with the Smartspec Website and Documentation, we will, at our option, either:
(a)modify the Subscription Services to conform to the Smartspec Website and Documentation; or
(b)provide a workaround solution.
(c)If neither option in (a) or (b) is commercially feasible, either party may terminate this Agreement by giving written notice to the other party, in which case we will refund to you all Subscription Fees pre-paid to us for unused Subscription Services, provided that any separate setup, onboarding, activation fees charged by us under your Subscription Plan are strictly non-refundable. Such correction or substitution, or (where applicable), termination and refund, constitutes your sole and exclusive remedy for any breach of the warranty set out in clause 10.1.
10.3
We will not be liable for a breach of the warranty in clause 10.1 to the extent of any non-conformance which is caused by use of the Subscription Services contrary to the Documentation or any other of our instructions, or modification or alteration of the Subscription Services by any party other than us or our duly authorised contractors or agents.
We will not be liable for a breach of the warranty in clause 10.1 to the extent of any non-conformance which is caused by use of the Subscription Services contrary to the Documentation or any other of our instructions, or modification or alteration of the Subscription Services by any party other than us or our duly authorised contractors or agents.
10.4
We do not warrant:
We do not warrant:
(a)that your use of the Subscription Services will be uninterrupted or error-free;
(b)that the Subscription Services, Documentation and/or the information obtained by you through the Subscription Services will:
(i)always be available, either in its current form or at all; or
(ii)meet your project, application, or consenting requirements;
(c)that we will support, maintain or continue to offer the Subscription Services;
(d)the accuracy, correctness, reliability and completeness of any information, specification content, automated process, or features provided through the use of the Subscription Services.
10.5
You acknowledge that:
You acknowledge that:
(a)you will not rely solely on the Subscription Services and you are solely responsible for ensuring the accuracy and correctness of any output or result from your use of the Subscription Services and compliance with all applicable laws;
(b)we may rely on the provision of services by third parties (including data centre, electricity, telecommunications and outsourcing providers) in order to provide the Subscription Services, including any features provided within the Subscription Services (Third Party Providers) and that the Subscription Services may be subject to limitations, delays and other problems inherent in the use of such services provided by Third Party Providers; and
(c)the Subscription Services contain specifications, data, product details, technical sheets, or other information, provided by or sourced from third parties, such as Third Party Providers and Suppliers, including those relating to a Supplier’s products or services that is made available through the Subscription Service (together, Third Party Information). We do not verify, endorse, or guarantee the accuracy, completeness, or suitability of any Third Party Information. We will not be liable for any loss or damage arising out of your reliance on such Third Party Information, or the quality, safety, or legality of any Supplier or Third Party Provider products or services used by you.
10.6
Except as expressly set out in this Agreement, the Services and the Documentation are provided on an “as is” basis and all representations, conditions or warranties (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) in respect of the Services and Documentation are expressly excluded.
Except as expressly set out in this Agreement, the Services and the Documentation are provided on an “as is” basis and all representations, conditions or warranties (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) in respect of the Services and Documentation are expressly excluded.
10.7
You will indemnify us, and our Related Companies, directors, employees, contractors and agents, against all costs, losses, expenses and damages arising out of or in connection with any claim resulting from:
You will indemnify us, and our Related Companies, directors, employees, contractors and agents, against all costs, losses, expenses and damages arising out of or in connection with any claim resulting from:
(a)your, or your Authorised Users’, use of the Services and/or the Documentation;
(b)any breach by you or your Authorised Users of this Agreement; or
(c)Your Data, including any project information, uploaded content or other materials submitted to the Subscription Services by you or on your behalf.
10.8
Except where we have liability to you under clause 10.1(b) and unless stated otherwise in this Agreement, we will not be liable to you under the law of tort, contract or otherwise for any claim, damages or liability (collectively referred to as a Claim), including loss of profits, loss of revenue, loss of data, or any indirect, consequential or special loss or damage suffered or incurred by you, however caused, arising out of or in connection with this Agreement.
Except where we have liability to you under clause 10.1(b) and unless stated otherwise in this Agreement, we will not be liable to you under the law of tort, contract or otherwise for any claim, damages or liability (collectively referred to as a Claim), including loss of profits, loss of revenue, loss of data, or any indirect, consequential or special loss or damage suffered or incurred by you, however caused, arising out of or in connection with this Agreement.
10.9
If we are found liable for any Claim, then to the maximum extent permitted by law, our aggregate liability arising out of all Claims under this Agreement will not exceed an amount equal to the Subscription Fees actually paid by you to us in the 12 months prior to the time the liability arises.
If we are found liable for any Claim, then to the maximum extent permitted by law, our aggregate liability arising out of all Claims under this Agreement will not exceed an amount equal to the Subscription Fees actually paid by you to us in the 12 months prior to the time the liability arises.
11. Termination
11.1
You may cancel your Subscription Plan and terminate this Agreement at any time for any reason by written notice to our support helpdesk at [email protected]. By cancelling under this clause 11.1, you acknowledge that:
You may cancel your Subscription Plan and terminate this Agreement at any time for any reason by written notice to our support helpdesk at [email protected]. By cancelling under this clause 11.1, you acknowledge that:
(a)cancellation does not release you from your obligation to pay all Subscription Fees for the remainder of your current Annual Subscription Term, or any renewal term where you have not provided notice of cancellation within the required notice period (if applicable), and that clause 11.4 will apply; and
(b)termination of your Subscription Plan and this Agreement will take effect at the expiry of your current Annual Subscription Term or any renewal term where you have not provided notice of cancellation within the required notice period (if applicable).
11.2
Either party may suspend or terminate this Agreement immediately by giving written notice to the other party if the other party:
Either party may suspend or terminate this Agreement immediately by giving written notice to the other party if the other party:
(a)is in material breach of this Agreement which is not capable of remedy, or (if capable of remedy) is not remedied within 14 days of receiving notice of the breach; or
(b)goes into liquidation or has a receiver or statutory manager appointed, becomes insolvent or makes any arrangement with creditors.
11.3
On termination of this Agreement for any reason:
On termination of this Agreement for any reason:
(a)all licences granted under this Agreement will immediately terminate and you must cease using the Subscription Services and the Documentation;
(b)you will, at our request, return, and make no further use of, Documentation and other items (and all copies of them) belonging to us;
(c)subject to clause 11.3(b), we may delete any of Your Data in our possession unless we receive, no later than 10 days after the effective date of termination, a written request for access to the most recent version of Your Data. We will use reasonable commercial endeavours to allow you to export Your Data in a format specified by us within 30 days of your request, provided all outstanding Subscription Fees have been paid. Following this 30 day period, we may, at our sole discretion, delete Your Data in our possession, and you acknowledge that upon deletion, Your Data may not be recoverable;
(d)we may retain Your Data, including any back-up copies, for such period as is reasonably required to comply with applicable laws, regulations, and compliance purposes. Any data retained will be securely stored and will not be actively processed or made accessible, except to the extent required for those purposes; and
(e)the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, will not be affected or prejudiced.
11.4
If you terminate this Agreement under clause 11.1 or we terminate this Agreement under clause 11.2, you will:
If you terminate this Agreement under clause 11.1 or we terminate this Agreement under clause 11.2, you will:
(a)not be entitled to a refund of any Subscription Fees pre-paid to us for unused Subscription Services; and
(b)be liable to pay the Subscription Fees on a pro-rata basis for each day remaining up to the end of your Annual Subscription Term to the extent that you have not already paid for the use of the Subscription Services on those days.
11.5
If you terminate this Agreement under clause 3.6 or 13.8, or for our material breach under clause 11.2, we will refund you a pro-rata amount of any Subscription Fees pre-paid for the remainder of your Annual Subscription Term.
If you terminate this Agreement under clause 3.6 or 13.8, or for our material breach under clause 11.2, we will refund you a pro-rata amount of any Subscription Fees pre-paid for the remainder of your Annual Subscription Term.
12. Disputes
12.1
If a dispute arises out of or relates to this Agreement (Dispute), a party may not 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.
If a dispute arises out of or relates to this Agreement (Dispute), a party may not 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.
12.2
A party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute.
A party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute.
12.3
On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
12.4
If the Dispute is not resolved within 15 Business Days of the notice being given pursuant to clause 12.2 (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. The arbitrator will be appointed by the parties or, failing agreement within five Business Days of the notice requiring arbitration, by the President of the New Zealand Law Society 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.
If the Dispute is not resolved within 15 Business Days of the notice being given pursuant to clause 12.2 (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. The arbitrator will be appointed by the parties or, failing agreement within five Business Days of the notice requiring arbitration, by the President of the New Zealand Law Society 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.
13. General
13.1
The terms of this Agreement constitute the entire agreement of the parties about its subject matter and supersedes any previous understanding or agreements on that subject matter.
The terms of this Agreement constitute the entire agreement of the parties about its subject matter and supersedes any previous understanding or agreements on that subject matter.
13.2
We may sub-contract any of our obligations under this Agreement without obtaining your prior written consent.
We may sub-contract any of our obligations under this Agreement without obtaining your prior written consent.
13.3
We will not be liable to you under this Agreement for any failure or delay in performing our obligations under this Agreement arising out of any event or circumstance beyond our reasonable control.
We will not be liable to you under this Agreement for any failure or delay in performing our obligations under this Agreement arising out of any event or circumstance beyond our reasonable control.
13.4
This Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.
This Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.
13.5
If any part or provision of this Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement will continue to operate.
If any part or provision of this Agreement is judged invalid or unenforceable in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement will continue to operate.
13.6
A provision or right under this Agreement may not be waived except in writing signed by the party granting the waiver.
A provision or right under this Agreement may not be waived except in writing signed by the party granting the waiver.
13.7
A party may exercise a right, power or remedy under this Agreement at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party under this Agreement does not prevent a further exercise of that or of any other right, power or remedy.
A party may exercise a right, power or remedy under this Agreement at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party under this Agreement does not prevent a further exercise of that or of any other right, power or remedy.
13.8
This Agreement may be varied by us from time to time. We will provide you with at least 30 days’ written notice of any material changes, including by email or by posting modified terms on the Smartspec Website (Variations). If a Variation is intended to take effect during an Annual Subscription Term and materially degrades your rights or materially increases your obligations under this Agreement, you may cancel your Subscription Plan and terminate this Agreement by giving us written notice before the Variation takes effect. In such case, no further Subscription Fees will be payable after the effective date of termination, and if you have paid in advance, clause 11.5 will apply. Your continued use of the Subscription Services after the effective date of any Variation constitutes acceptance of the Variation.
This Agreement may be varied by us from time to time. We will provide you with at least 30 days’ written notice of any material changes, including by email or by posting modified terms on the Smartspec Website (Variations). If a Variation is intended to take effect during an Annual Subscription Term and materially degrades your rights or materially increases your obligations under this Agreement, you may cancel your Subscription Plan and terminate this Agreement by giving us written notice before the Variation takes effect. In such case, no further Subscription Fees will be payable after the effective date of termination, and if you have paid in advance, clause 11.5 will apply. Your continued use of the Subscription Services after the effective date of any Variation constitutes acceptance of the Variation.
13.9
You will not assign, transfer or otherwise deal with this Agreement or any of your rights or obligations under this Agreement, whether in whole or in part, without our prior written consent.
You will not assign, transfer or otherwise deal with this Agreement or any of your rights or obligations under this Agreement, whether in whole or in part, without our prior written consent.
13.10
Any notice you send must be sent to [email protected] unless otherwise stated in this Agreement. Any notice we send will be sent to the email address you provided when you subscribed for the Subscription Services. A notice or communication in relation to this Agreement will be deemed to be received on the Business Day on which the email is successfully delivered.
Any notice you send must be sent to [email protected] unless otherwise stated in this Agreement. Any notice we send will be sent to the email address you provided when you subscribed for the Subscription Services. A notice or communication in relation to this Agreement will be deemed to be received on the Business Day on which the email is successfully delivered.
13.11
This Agreement will be governed by and construed in accordance with the laws of New Zealand. If you wish to bring any claim or other action against us arising out of or in connection with this Agreement then you must bring that claim or other action against us in New Zealand.
This Agreement will be governed by and construed in accordance with the laws of New Zealand. If you wish to bring any claim or other action against us arising out of or in connection with this Agreement then you must bring that claim or other action against us in New Zealand.