We have two sets of terms. If you are a government agency (as defined in clause 2.1), you agree to our Terms of Service (Government Agencies). In all other cases, you agree to our Terms of Service (General).
Terms of Service (General)
Formation of Agreement & Term
These terms and conditions are the Agreement between Optimal Product Limited ("Optimal") and all users of Optimal Workshop Services. Please read these terms and conditions carefully as they form the basis of a legal agreement between us. By using the Services you acknowledge that you have read and understood these terms and conditions and agree to be bound by them. In the case of multi-user accounts, both account owners and team members are subject to these terms, unless otherwise stated.
Grant of License to use Service
Optimal shall provide the Optimal Workshop software service ("the Service") for the period selected in your Registration Application and any renewals thereof ("the Term"). The Service shall be supplied by allowing you to access and use the Service at optimalworkshop.com.
Subject to the terms of this Agreement, Optimal hereby grants you a limited, non-exclusive, personal, non-sub-licensable, non-assignable license to access and use the Service for the Term on any browser or other applicable device owned or controlled by you, as described in the documentation, and subject to and in strict compliance with the restrictions described in this Agreement.
Restrictions on Use of License
Notwithstanding anything in this Agreement to the contrary, you agree that you shall not:
operate or use the Service in a manner that violates any applicable local, state, national or international law or governmental regulation, policy procedure or ordinance;
access or use the Service if this license has been terminated by Optimal;
sell, assign, rent, lease, distribute, export, import, or otherwise grant rights in the Service, including the granting of a sublicense to any other person or entity;
undertake, cause, permit or authorise the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service, its software or data;
collect any information or communication about any other Licensees or licensed users of the Service by monitoring, or by intercepting any process of or communication initiated by the Service or by developing or using any software or any other process or method that engages or assists in engaging in such activity;
attempt to hack the Service or any communication initiated by the Service or to defeat or overcome any encryption and/or other technical protection methods implemented by Optimal with respect to the Service and/or data and/or content transmitted, processed or stored by Optimal or other users of the Service;
Subject to Clause 11.1, nothing in this agreement shall prevent the distribution or sale by you of information created in whole or in part by your use of the Service.
Service Terms & Fees
The Service in this agreement is granted for the Term chosen by you in the Registration Application at the License Fee (if any) specified for that Term.
The License Fee (if any) is payable by you in advance of the Term.
Renewal of the Term will incur a further License Fee. The list of such License Fees for any Term is available at www.optimalworkshop.com. License Fees are subject to change, and all changes will apply as from your next Term.
If you have queries that are not addressed in the Online Documentation the Licensee may email them to Optimal at firstname.lastname@example.org. Optimal will not charge you additional fees for support provided in response to such queries.
Optimal will use its best endeavours to respond to queries raised under the previous paragraph, but nothing in this clause commits Optimal to a course of action or priority or to a timeframe for any response it may make to support queries.
Optimal warrants that it owns the software and databases used in the supply of the Service and that it will use reasonable skill, care and diligence in the provision of the Service.
Optimal warrants to you that the Service will perform substantially in accordance with any Online Documentation and any amendment thereof following the grant of the licence to use the Service and during the Term. You hereby acknowledge that this warranty is limited to the extent that the currency of the Online Documentation affects performance of the Service.
The warranty period is for the seven day period following the grant of the licence to use the Service.
You acknowledge that you purchase the Service and access the Website for use in your business and that accordingly, the New Zealand Consumer Guarantees Act 1993 does not apply.
Other than the warranties expressly contained in this agreement, those warranties implied by law and which are incapable of exclusion, restriction and modification, Optimal makes no other warranty, representation or undertaking whatsoever in respect of the Service.
Warranty Claims & Remedies
To make a claim under any of the warranties provided in clause 6 of this agreement, you must send an email to email@example.com indicating clearly in what way the Service fails to perform in accordance with the warranties provided under clauses 6.1 and 6.2 above.
Where the Software does not perform substantially in accordance with the Online Documentation or any amended version thereof, the entire and exclusive liability of Optimal and its suppliers, and your remedy shall be limited at Optimal's option, to the re-supply of the Service, or the refund of the Licence Fee you paid for the current Term of supply of the Service.
Where you have mistakenly overpaid Optimal under the user agreement, or made any overpayment to Optimal as a result of any defect or error in any banking transaction initiated as part of the Optimal product download or license payment process, Optimal will refund you within 14 days when you contact us by emailing firstname.lastname@example.org.
No other refund will be provided, including but not limited to refunds for failure to terminate your subscription prior to renewal or for selection of an incorrect product.
Limitation of Liability
The Optimal Service is provided "as is". Other than those provided in clause 7 of this agreement, there are no warranties, claims or representations made by Optimal, other than those expressly made in this agreement, and whether implied or statutory with respect to the Service, including but not limited to warranties of quality, performance, non-infringement of copyright, merchantability, or fitness for a particular purpose, nor are there any warranties created by a course of dealing, course of performance or trade usage.
While Optimal shall endeavour to provide a robust hardware and software network environment to enable provision of the Service to you, Optimal does not represent or warrant that the Service will always be available, accessible, uninterrupted, timely, secure, accurate, completely error-free or will operate without packet loss, nor does Optimal warrant any connection to or transmission from the Internet, or any quality of transmissions of data made through the Service and its associated software.
You acknowledge that the entire risk of ascertaining suitability or risk arising out of the use or performance of the Service remains with you, to the extent permitted by law.
In no event shall Optimal, its affiliates, parent companies, subsidiaries, officers, directors, employees or agents be liable to you or to any third party claiming through you, whether in contract, tort (including negligence, breach of statutory duty or otherwise), for any direct or indirect, incidental, special or consequential damages, (including without limitation loss of profit, business, revenue, goodwill or anticipated savings any loss of data, service interruption, or computer failure) arising out of the use or inability to use the Service including any damage resulting therefrom, even if Optimal has been advised of the possibility of such damages.
To the extent (if any) that Optimal is liable for damage or loss caused to you, the extent of that liability is limited to the fees paid by you for the relevant Services used.
Your only right with respect to dissatisfaction or problems with the Service, other than as provided for in clause 7.2 above is to cease to access and to use the Service.
Optimal will make all reasonable efforts to maintain the availability of the Service, but shall not be liable to you or any other party claiming through you in respect of anything which, apart from this provision, may constitute a breach of this agreement arising by reason of force majeure, including circumstances beyond the control of Optimal which prevent or limit Optimal's ability to perform its obligations under this agreement.
Optimal, its employees, agents and subcontractors, will keep confidential all data and other information which comes into their possession as a result of the performance of this Agreement.
Optimal (and its licensors or suppliers, as the case may be) owns all proprietary and intellectual property rights in the Service (including copyright (including but not limited to trade secrets, software, data format, text, graphics, and sound recordings), trademarks (including but not limited to logos, brands and get-up), trade names, business names and company names, domain names, websites, designs, and patents that are used in supplying the Service, whether they are registered or unregistered, and includes all rights to the registration of such rights, whether created before or after the date that these terms are accepted) and other material underlying and forming part of the Services. You may not without our prior written permission, in any form or by any means:
adapt, reproduce, reverse engineer, copy, store, distribute, perform, publish or create derivative software works from any part of the Service; or
commercialise or copy the Service.
Subject to 11.1, nothing in this agreement shall prevent the distribution or sale by you of information created or services supplied in whole or in part by your use of the Service.
Security and Data
Optimal will endeavour to provide a secure environment to protect the integrity and security of the Service and of your information and to prevent data loss and data breaches, but Optimal provides no guarantee or warranty in relation to data loss and data breaches.
Optimal may use Third Party Hosting Service Suppliers to store data and to maintain the availability of the Service.
Any data entered by you using the Service remains the property of the account owner, who will be able to export any such data from the software.
Optimal will not use or make available your data to any third party. However you agree to allow Optimal to aggregate and use the metrics surrounding your data for the purpose of analysing its business and technical performance, including but not limited to benchmarking and comparison.
You agree not to undertake, cause, or permit unauthorized access to the Service or any part thereof (including data).
Service and Maintenance
Periodically, and for the purpose of Optimal or its service supplier contractors performing routine maintenance, applying software updates and security patches and updates, the Service may be unavailable to you (Outages) from time to time.
We will endeavour to notify you of substantial Outages in advance.
Optimal collects personal information through the use of the Services and the Website, including your registration details. Optimal will use its best endeavours to ensure that all personal information it collects is kept safe and secure and is not used for any purpose other than as specifically agreed by you in this Agreement.
You agree that Optimal may use personal information that Optimal collects to assist us to provide further Services to you and for statistical research purposes only.
Optimal will not contact survey participants directly, except with your prior approval.
Goods & Services Tax
The parties agree that where the Licensee is a New Zealand resident, then where dollar amounts are stated in this agreement or in any price list, those amounts are inclusive of New Zealand Goods and Services Tax of 15%.
You agree to indemnify Optimal, its officers, directors, shareholders, employees, agents and subcontractors from and against any and all damage, loss, cost, liability, tax and expense whatsoever (including all solicitor's fees on a solicitor/client basis, all actual court costs and associated fees and expenses and all disbursements) incurred by them relating to a breach by you of any term of this Agreement.
All notices under this agreement must be made in writing and must be served:
by Optimal upon you by email sent to the email address used by you to register this Service;
You may not assign your rights, interests or obligations under this agreement to any person without first obtaining the written consent of Optimal.
The failure by any party to enforce any provisions of this agreement at any time shall not operate as a waiver of that provision in respect of the particular act or omission or any other act or omission.
This Agreement shall be governed by the laws of New Zealand, and each party irrevocably submits to the non exclusive jurisdiction of the New Zealand courts.
This Agreement constitutes the entire agreement between the parties.
From time to time Optimal may publish revisions to this Agreement by publishing them at optimalworkshop.com. Through the continuation of use of the Services you agree to the revised terms, whereupon this Agreement shall be deemed altered and replaced by the revised Agreement.
Electronic Signatures. You acknowledge and agree that by clicking on the AGREE button (or similar buttons or links as may be designated by Optimal to show your acceptance of this Agreement and/or your agreement to access and use the Optimal Service), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Optimal Service. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
Jurisdictional Matters. If you are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and you are under such a jurisdiction and under such age limit, you may not enter into this Agreement and access or use the Service. Furthermore, if you are residing in a jurisdiction where it is forbidden by law to offer or use software for internet communication, you may not enter into this Agreement and you may not download, access or use the Service. By entering into this Agreement you explicitly state that you have verified in your own jurisdiction if your use of the Service is allowed.
In these Terms of Service:
"Agreement" is the agreement contained in these Terms of Service, and includes any revisions to these Terms of Service you have subsequently agreed to under clause 18(5).
"Licensee" is any person or organisation having been granted a license under this or any other agreement to access and use the Optimal Workshop Service.
"License" is the right to use the Service for the Term that is evidenced by this agreement.
"Optimal" means Optimal Product Limited (New Zealand Registered Company number 1973791) and includes its successors and assigns.
"Online Documentation" means the website and support documentation relating to the operation of the Service, as amended from time to time, which appears at optimalworkshop.com. Optimal will use its best endeavours to keep this information current and reflective of the services and products it offers, but offers no warranty as to its currency.
"Registration Application" means account sign-up and subscription purchase.
"Service" means the Optimal Workshop software service and includes all software and technology used in providing it, and includes all services generated by or through it.
"Third Party Hosting Service Suppliers" are suppliers under contract to Optimal and who host or who may, over the currency of this License, host the software applications, data and information, web services and technologies used in the making available of the Service.