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.
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 lusers of the Service;
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 On Line User documentation or in the frequently asked questions (FAQs) 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 On Line User Documentation for the 7 (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 in accordance with the On Line User Documentation, 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, or call +64 4 498 4452.
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, interrupted, 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.
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, shall keep confidential all data and other information which shall come into their possession pursuant to 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 software, data format, text, graphics, websites, logos, icons and sound recordings used in supplying the Service) 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, copy, store, distribute, perform, publish or create derivative software works from any part of the Service; or
commercialise or copy, the Service.
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 shall provide a secure environment to protect the integrity and security of the Service and of your information and will use all practical endeavours to prevent data loss, but Optimal provides no guarantee against loss of data.
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 your property and you will be able to export any such data from the software.
Optimal will not access, 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 benchmarking and comparison.
You agree not to undertake, cause, permit or authorise the hacking of 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).
Wherever practically possible you will be notified in advance by email of any such Outage, giving the time of the Outage and the estimated time of unavailability of the Service.
Optimal collects personal information through the use of the Services and the Website, including your registration details. Optimal will 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 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 comply with its obligations under the New Zealand Privacy Act 1993, and will ensure that any personal information (other than that required for statistical research purposes) is, upon your request, removed from Optimal's databases following termination of this agreement.
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 12.5%.
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 www.optimalworkshop.com. If at any time you wish to replace this Agreement with the then current published version of the Agreement, then you may agree to the revised Agreement, 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.
"Service" means the Optimal Workshop software service and all software and technology used in providing it, and includes all services generated by or through it.
"You" refers to you as the licensee of the Service.
"On Line Documentation" means the user guide documentation and all frequently asked questions and responses relating to the operation of the Service, and appears in full at optimalworkshop.com.
"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.
Amendments for United States Federal Government Agencies
This Amendment applies to U.S. Government users of the Site and Services.
You, as a U.S. Government entity, are required when entering into agreements with other parties to follow applicable federal laws and regulations, including those related to ethics; privacy and security; accessibility; federal records; limitations on indemnification; fiscal law constraints; advertising and endorsements; freedom of information; and governing law and dispute resolution forum. Company and Agency (together, the "Parties") agree to modify the Company's standard Terms of Service, available at https://apps.optimalworkshop.com/suite/info/terms_of_service.jsf (the "TOS") to accommodate Agency's legal status, its public (in contrast to private) mission, and other special circumstances. Accordingly, the TOS are hereby modified by this Amendment as they pertain to Agency's use of the Company Site and Services.
Government entity: "You" within the TOS shall mean the Agency itself and shall not apply to, nor bind (i) the individual(s) who utilize the Company Site or Services on Agency's behalf, or (ii) any individual users who happen to be employed by, or otherwise associated with, the Agency. Company will look solely to Agency to enforce any violation or breach of the TOS by such individuals, subject to federal law.
Public purpose: Agency shall use the Company Site and Services solely in furtherance of Agency's public purpose. Any requirement(s) set forth within the TOS that use of the Company Site and Services be for private, personal and/or non-commercial purposes is hereby waived.
Agency content serving the public: Company will allow Agency's distribution or other publication via the Site or Services of material that may contain or constitute promotions, advertisements or solicitations for goods or services, so long as the material relates to the Agency's mission.
Advertisements: Company agrees not to serve or display any commercial advertisements or solicitations in the publicly available portion of the Site displaying content uploaded by or under the control of the Agency. This exclusion shall not extend to house ads, which Company may place in a non-intrusive manner.
Indemnification, Liability, Statute of Limitations: Any provisions in the TOS related to indemnification and filing deadlines are hereby waived, and shall not apply except to the extent expressly authorized by law. Liability for any breach of the TOS as modified by this Amendment, or any claim arising from the TOS as modified by this Amendment, shall be determined under the Federal Tort Claims Act, or other governing federal authority. Federal Statute of Limitations provisions shall apply to any breach or claim.
Governing law: Any arbitration, mediation or similar dispute resolution provision in the TOS is hereby deleted.The TOS and this Amendment shall be governed by and interpreted and enforced in accordance with the laws of the United States of America without reference to conflict of laws.
Changes to standard TOS: Language in the TOS reserving to Company the right to change the TOS without notice at any time is hereby amended to grant You at least three days advance notice of any material change to the TOS. Company shall send this notice to the email address You designate at the time You sign up for service, and You shall notify Company of any change in the notification email address during the life of the Amendment.
Access and use: Company acknowledges that the Agency's use of Company's Site and Services may energize significant citizen engagement and otherwise become important to the Agency's mission. Language in the TOS allowing Company to terminate service or close the Agency's account at any time, for any reason, is modified to reflect the Parties' agreement that Company may unilaterally terminate service and/or terminate Agency's account only for breach of Agency’s obligations under the TOS or Agency's material failure to comply with the instructions and guidelines posted on the Site, or if Company ceases to operate its Site or Services generally. Company will provide Agency with a reasonable opportunity to cure any breach or failure on Agency's part.
Provision on crawlers: Any provision in the TOS prohibiting "crawl," "spider" or similar processes is amended to allow the Agency to apply such tools solely to its pages and content, and solely to fulfill Agency's obligations under the Federal Records Act or other applicable federal law or regulation.
Ownership of names: Any provision in the TOS related to Company's ownership of and right to change Your selected user name(s), user ID(s), domain name(s), channel name(s), and group name(s), are modified to reasonably accommodate Agency's proprietary, practical, and/or operational interest in its own publicly-recognized name and the names of Agency programs.
Modifications of Agency content: Any right Company reserves in the TOS to modify or adapt Agency content is limited to technical actions necessary to index, format and display that content. The right to modify or adapt does not include the right to substantively edit or otherwise alter the meaning of the content. In the event Agency discovers that Agency content has been modified in a manner that alters the meaning of such content, Agency may contact Company and the Parties shall work together in good faith to resolve the matter. Notwithstanding the foregoing, nothing in this Amendment shall result in an expansion of Agency's rights as a United States Government entity under the Copyright Act of 1976 (17 U.S.C. §§101 et sec.), specifically including Section 105 of the Act.
Limitation of liability: The Parties agree that nothing in the Limitation of Liability clause or elsewhere in the TOS in any way grants Company a waiver from, release of, or limitation of liability pertaining to, any past, current or future violation of federal law.
Uploading, deleting: The Parties understand and agree that You are not obligated to place any user content on the Site, and You reserve the right to remove any and all of Your Content at Your sole discretion.
No endorsement: Company agrees that Your seals, trademarks, logos, service marks, trade names, and the fact that You have a presence on the Company Site and use its Services, shall not be used by Company in such a manner as to state or imply that Company's products or services are endorsed, sponsored or recommended by You or by any other element of the Federal Government, or are considered by You or the Federal Government to be superior to any other products or services. Except for pages whose design and content is under the control of the Agency, or for links to or promotion of such pages, Company agrees not to display any Agency or government seals, trademarks, logos, service marks, and trade names on the Company's homepage or elsewhere on the Company Site unless permission to do has been granted by the Agency or by other relevant federal government authority. Company may list the Agency's name in a publicly available customer list on its homepage or elsewhere so long as the name is not displayed in a more prominent fashion than that of any other third party name.
No business relationship created: The Parties are independent entities and nothing in the TOS as modified by this Amendment creates a partnership, joint venture, agency, or employer/employee relationship.
No cost agreement: Nothing in the TOS as modified by this Amendment obligates You to expend appropriations or incur financial obligations. The Parties acknowledge and agree that none of the obligations arising from the TOS as modified by this Amendment are contingent upon the payment of fees by one party to the other.
Separate future action for fee based Services: Company provides Services at a basic level free of charge to the public, but this may change in the future. Agency acknowledges that while Company will provide Agency with some Services and features for free, Company reserves the right to begin charging for the Services and features at some point in the future. Company will provide Agency with at least 30 days advance notice of a change involving the charging of fees for currently free services. Agency also understand that Company may currently offer other premium and enterprise Services for a fee. The Parties understand that fee-based products and services are categorically different than free products and services, and are subject to federal procurement rules and processes. Before an Agency decides to enter into a premium or enterprise subscription, or any other fee-based service that this Company or alternative providers may offer now or in the future, Agency agrees to determine if it has a need for those additional services for a fee, to consider the subscription's value in comparison with comparable services available elsewhere, to determine that Agency funds are available for payment, to properly use the Government Purchase Card if that Card is used as the payment method, to review any then-applicable TOS for conformance to federal procurement law, and in all other respects to follow applicable federal acquisition laws, regulations, and agency guidelines when initiating that separate action.
Assignment: Neither party may assign its obligations under the TOS as modified by this Amendment to any third party without prior written consent of the other; provided however, Company or its subsidiaries may assign the TOS as modified by this Amendment to a subsidiary or parent without written consent from the Agency provided that the successor assumes Company's obligations under the TOS as modified by this Amendment.
Termination rights: Agency may close Agency's account and terminate this Amendment at any time. Company may close Agency's account and terminate this Amendment on 30 days written notice.
Posting and availability of this Amendment: Any provision of the TOS requiring modifications of its terms to be posted on Company's Site is inapplicable since this Amendment is of limited, not general, application, and is otherwise waived for this special circumstance. The Parties agree this Amendment contains no confidential or proprietary information, and either party may release it to the public upon request and to other agencies interested in using the Services.
Federal Records: Agency acknowledges that use of Company's Site and Services may require management of Federal records. Agency and user-generated content may meet the definition of Federal records as determined by the agency. If the Company holds Federal records, the Agency and the Company must manage Federal records in accordance with all applicable records management laws and regulations, including but not limited to the Federal Records Act (44 U.S.C. chs. 21, 29, 31, 33), and regulations of the National Archives and Records Administration (NARA) at 36 CFR Chapter XII Subchapter B). Managing the records includes, but is not limited to, secure storage, retrievability, and proper disposition of all Federal records including transfer of permanently valuable records to NARA in a format and manner acceptable to NARA at the time of transfer. The Agency is responsible for ensuring that the Company is compliant with applicable records management laws and regulations through the life and termination of its use of the Site and Services.
Intellectual property ownership: Except as expressly allowed in the TOS, no rights to any derivative works, inventions, or Company product modifications are conferred on Agency or any other party. All such rights belong solely to Company.
Precedence; Further Amendments: If there is any conflict between this Amendment and the TOS, or between this Amendment and other terms, rules or policies on the Company Site or related to its Services, this Amendment shall prevail. This Amendment constitutes an amendment to the TOS; any language in the TOS indicating it may not be modified or that it alone is the entire agreement between the Parties is waived. Any further amendment must be agreed to by both Parties.
Additional Items for discussion and possible inclusion in this Amendment: Company understands current federal law, regulation and policy may affect Agency's use of the Company's products and Services in ways not addressed in the list of clauses above. Among the topics Agency may need to discuss with Company, and which may lead to a mutual agreement to insert additional clauses in this Amendment, are Privacy and Accessibility.