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 (Government Agencies)
Formation of Agreement & Term
These terms and conditions are the agreement between Optimal Workshop Limited ("Optimal") and the Agency as a user of the Optimal Workshop software service ("the Service", see also clause 2), (together being, "the Parties").
By using the Service you acknowledge that you have read and understood the terms of the Agreement and agree to be bound by them."You", for the purposes of the Agreement, means the Agency and does not apply to, or bind, the individual(s) who use the Website or Service on the Agency’s behalf, or any individual users who are employed by, or otherwise associated with, the Agency. As such Optimal will look solely to the Agency to enforce any violation or breach of the Agreement by such individuals, subject to any relevant national, federal or state laws or regulations.
You, as an Agency, are required when entering into agreements with other parties to follow applicable national, state or federal laws and regulations, including those related to ethics, privacy and security, accessibility, record retention, limitations on indemnification, fiscal constraints, advertising and endorsements, freedom of information and laws governing dispute resolution. The Agency agrees to provide Optimal with details of specific requirements and constraints and Optimal will use reasonable endeavours to accommodate the Agency's legal status, its public (in contrast to private) objectives and other special circumstances to the extent practicable in all the circumstances.
In these Terms of Service:
"Agency" means an entity established by either a national government, or a state government within a federal system, that is responsible for the oversight and administration of specific functions regulated by legislation or government policy.
"Agreement" means the agreement contained in these Terms of Service, and includes any revisions to these Terms of Service you have subsequently agreed to under clause 22.6.
"Force Majeure" means an unforeseeable event beyond the control of the affected party, including but not limited to Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, terrorist activities, government sanction, strike, lockout or other business interruption (including failure of internet service).
"Licensee" means an Agency granted a license under this agreement to access and use the Service.
"License" means the right to use the Service for the Term that is evidenced by this agreement.
"Optimal" means Optimal Workshop 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.
"Relevant Jurisdiction" means the jurisdiction in which the Agency is established and governed.
"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.
"Term" means the period selected by the Agency in its Registration Application and any renewals thereafter.
"Third Party Hosting Service Suppliers" are suppliers under contract to Optimal and who host or who may, over the Term of the Agreement, host the software applications, data and information, web services and technologies used in the making available of the Service.
Optimal shall provide the Service for the Term. The Service will be supplied by allowing the Agency 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.
Optimal may allow the Agency to distribute or otherwise publish via the Website or Service 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 public purpose and objectives.
Restrictions on Use of License
Notwithstanding anything in this Agreement to the contrary, you agree that you shall not:
operate or use the Service for any purpose other than for the furtherance of the Agency’s public purpose and objectives;
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 in the Relevant Jurisdiction;
access or use the Service if this license has been terminated by Optimal;
sell, assign, rent, lease, distribute, export, import, or otherwise grant any rights in the Service, including the granting of a sublicense to any third party;
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.
Nothing in this Agreement will prevent the Agency from using a web-based crawler (or similar process) to the limited extent that it is applied only to the Agency's pages and content, and is necessary to fulfil the Agency's obligations under national, state or federal legislation or policy governing record management in the Relevant Jurisdiction of the Agency.
Nothing in this agreement shall prevent the distribution to third parties by you of information created in whole or in part by your use of the Service.
Optimal acknowledges and accepts that the Agency is not obligated to place any user content on the Website, and that the Agency reserves the right to remove any and all such content at its sole discretion.
Optimal reserves the right to modify or adapt Agency content for the limited purpose of effecting 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 such content.
In the event that the Agency discovers that Agency content has been modified in a manner that alters the meaning of such content, the Agency may contact Optimal and the Parties will work together in good faith to resolve the matter.
Notwithstanding the foregoing, nothing in this Agreement will extend the Agency's rights under applicable copyright laws in the Relevant Jurisdiction.
Service Terms & Fees
The Service in this agreement is granted for the Term chosen by the Agency in the Registration Application and the License Fee (if any) specified for that Term.
The License Fee (if any) is payable by the Agency 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 optimalworkshop.com. License Fees are subject to change, and all changes will apply as from any renewed Term.
Optimal provides some facets of the Service for no License fee, but reserves the right to charge a License fee for some or all of these facets in the future. Optimal will provide the Agency with at least 30 days written notice where a previously License-free service is to become subject to License fees. Optimal also offers premium and enterprise services for a fee. The Parties acknowledge that fee-based services are subject to governmental procurement rules and processes. Prior to the Agency entering into a premium or enterprise subscription, or any other fee-based Optimal service, the Agency agrees to follow all applicable acquisition laws, regulations and Agency guidelines.
All fees will be quoted and paid in the currency of the Relevant Jurisdiction.
If the Agency requires information not contained in the Online Documentation, the Agency may request such information by email 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.
Other than the warranties expressly contained in this agreement, those warranties implied by the laws of the Relevant Jurisdiction 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 8 of this agreement, the Agency 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 clause 8.
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 the Agency overpays Optimal under the Agreement, or makes 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 the Agency within 14 days of notification via email to 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 8 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 Intellectual Property including but not limited to 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 endeavours to provide a robust hardware and software network environment to enable provision of the Service to the Agency, 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.
The Agency acknowledges that the entire risk of ascertaining suitability or risk arising out of the use or performance of the Service remains with the Agency, to the extent permitted by law in the Relevant Jurisdiction.
In no event will Optimal, its affiliates, parent companies, subsidiaries, officers, directors, employees or agents be liable to you or to any third party claiming through you, to the extent possible as an Agency in the Relevant Jurisdiction, for any direct or indirect, incidental, special or consequential damages, (including without limitation loss of profit, business, revenue, goodwill, 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 remedy with respect to dissatisfaction or problems with the Service is to cease to access and to use the Service.
Optimal will make all reasonable efforts to maintain the availability of the Service, but will not be liable to you or any third party claiming through you, to the extent possible as an Agency in the Relevant Jurisdiction, in respect of anything which, apart from this provision, may constitute a breach of this Agreement arising by reason of Force Majeure, including but not limited to 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.
For the avoidance of doubt, no rights to any derivative works, inventions or Optimal product modifications created during the Term are conferred on the Agency or any other party. All such rights belong solely to Optimal.
Notwithstanding clauses 13.1 and 13.2, nothing in this Agreement confers on Optimal any proprietary or intellectual property rights in relation to the Agency's proprietary, practical and/or operational interest in the Agency's publicly-recognised name and the names of the Agency programmes.
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 the Agency using the Service remains the property of the Agency and as such the Agency 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.
The Agency agrees not to undertake, cause, or permit unauthorized access to the Service or any part thereof (including data).
Optimal agrees not to serve or display any commercial advertisements or solicitations in the publicly available portion of the Website displaying content uploaded by or under the control of the Agency. This exclusion does not extend to house advertisements, which Optimal may place in a non-intrusive manner on the Website.
The Parties acknowledge and accept that use of the Website and Service may require management in accordance with applicable laws in the Relevant Jurisdiction relating to the creation, retention, retrieval and disposal of government records. The Agency is responsible for ensuring that Optimal is aware of, and the Agency's use of the Service is compliant with, all such applicable laws during the Term.
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 the Agency in this Agreement.
The Agency agrees that Optimal may use personal information that Optimal collects to assist us to provide further Services to the Agency and for statistical research purposes only.
Optimal will not contact survey participants directly, except with your prior approval.
Optimal will use its best endeavours to comply, and to ensure its officers, employees, agents and contractors (including but not limited to Third Party Hosting Service Suppliers) comply, under its obligations under all applicable privacy laws of the Relevant Jurisdiction, and to ensure it does nothing to breach those laws. Optimal will notify the Agency immediately if it becomes aware of a breach, or possible breach, of any of its obligations under this clause.
Either Party may terminate this Agreement and/or the Agency's Optimal account for convenience on 30 days written notice to the other.
Optimal will terminate this Agreement and/or close the Agency's Optimal account where the Agency breaches its obligations under this Agreement, or materially fails to comply with reasonable instructions or guidelines issued by Optimal during the Term, and fails to remedy such breach or failure within 15 days of being provided notice of it.
This Agreement will terminate in the event that Optimal ceases to operate the Website or offer the Service generally.
Neither Party may assign its rights, interests or obligations under this Agreement to any third party without first obtaining the written consent of the other.
Notwithstanding clause 18.1, Optimal may assign its rights, interests or obligations under this Agreement to a subsidiary or parent company without the written consent of the Agency.
The Agency is responsible for any and all tax obligations applicable to it in the Relevant Jurisdiction during the Term of this Agreement.
You agree to indemnify Optimal, its officers, directors, shareholders, employees, agents and subcontractors, to the extent possible as an Agency in the Relevant Jurisdiction, from and against any and all damage, loss, cost, liability, tax and expense whatsoever (including legal fees, 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 the Agency by email sent to the email address provided by the Agency on signing up;
If the Agency requires an email address to be used for Notices other than the one provided in its Registration Application, the Agency must provide Optimal with notification of such alternate email address in writing. If a Notice is issued by Optimal to an erroneous email address as a result of such notification not being provided, such Notice will be deemed as still having been issued.
The failure by either Party to enforce any provisions of the Agreement at any time will not operate as a waiver of that provision in respect of the particular act or omission or any other act or omission.
This Agreement will be governed by the laws of the Relevant Jurisdiction without reference to conflict of laws, and the Parties irrevocably submit to the non-exclusive jurisdiction of the courts in the Relevant Jurisdiction.
This Agreement constitutes the entire agreement between the Parties. In the event that there is any conflict between this Agreement and any other terms, rules or policies on the Website, this Agreement will prevail to the extent of any such inconsistency.
Nothing in this Agreement implies any relationship between the Parties (such as partnership, joint venture, agency or employer/employee relationship) except as is expressly recorded in it.
Nothing in this Agreement implies that the Agency's use of the Service is an endorsement, sponsorship or recommendation of Optimal or the Service. Optimal agrees not to display any Agency seal, trade mark, logo, service mark or trade name on the Website unless permission to do so has been granted by the Agency or by other relevant government authority. Notwithstanding this, Optimal may list the Agency's name in a publicly available customer list on the Website or elsewhere if the name of the Agency is displayed in the same manner as that of any other third party customer.
From time to time Optimal may amend or vary the terms of this Agreement. In such instances, Optimal will endeavour to notify you at least three (3) days in advance of of any material change. Through the continuation of use of the Service 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 using the 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.