Welcome to the Cotiss eProcurement platform.

These Terms of Service (Terms of Service, including as amended, supplemented or replaced from time to time) together with our Privacy Policy and any specific terms (Specific Terms) which may be separately agreed between Cotiss Limited (NZCN 8143589)(Cotiss, we, us, our) and any registered user of the Software (you, your) (together, the Agreement) set out our and your respective rights and obligations in relation to the Software.

By using the Software, you agree to follow and be bound by the terms and conditions of the Agreement (including during any Trial).  If you do not agree to all the terms and conditions in the Agreement, you must not use the Software.

These Terms of Service may be varied by Cotiss at any time, effective upon the posting of modified terms on the Sites.  Cotiss will advise you of changes either by amending the “Last updated” date above, by a dialog box that is presented on log in or otherwise in writing (including by email). You will ensure that you have read, understood and agree to the most recent terms posted on the Sites or as otherwise notified to you and you are deemed by your continued use of the Software to have accepted such terms.

1.         Interpretation

Definitions: Capitalised terms have the meanings set forth above, in the body of these Terms of Service or as set out below:

Administrator means the person named on the Subscription Plan. The Administrator will be considered your billing and key point of contact for Cotiss. You may nominate a separate contact for billing. You can make a request to us for changing the details of the Administrator or the billing contact;

Authorised User means any person who is granted access to the Software by the Administrator in accordance with this Agreement;

Business Day means a day other than a Saturday, Sunday or public holiday in Auckland, New Zealand;

Intellectual Property Rights means all brand names, trade marks, service marks, trade names, logos, copyrights, patents, licences, designs and rights in a design, look and feel, know-how, trade secrets, inventions, technical data, concepts, ideas, moral rights and all other similar property, whether or not registered, in the course of being registered or unregistered and any analogous rights worldwide;

Malicious Code means any thing or device (including any software, code, file or program) which may:

• 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;
• 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
• adversely affect the user experience, including trojan horses, viruses, worms, cancelbots, back doors, easter eggs, time bombs, trap doors, files, scripts, agents or programs intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;

Privacy Policy means the Cotiss Privacy Policy, as amended from time to time, and located at www.cotiss.com/privacy-policy

Software means the Cotiss eProcurement software provided on a software-as-a-service basis and accessible via the Sites as may be updated by Cotiss from time to time;

Subscription Fees means the subscription fees payable for your access and use of the Software in accordance with the Subscription Plan;

Subscription Plan means any Specific Terms and included features, access restrictions and usage limits applicable to your pricing plan, including fees, payment and billing terms;

Third Party Provider has the meaning given in clause 9.5(a);

Trial means any free trial of the Software made available to under the Subscription Plan;

Sites means the online facility made available by Cotiss for you to access the Software via the app or the website accessible at www.cotiss.com or any other URL address notified to you by Cotiss from time to time;

you or your means any person that is registered to use the Software  pursuant to the terms of the Agreement on behalf of a company, organisation or other entity, including the Administrator and any Authorised Users;

Your Data means the data input by you on behalf of your company, organisation or entity for the purpose of using the Software or facilitating your use of the Software.

In the event and to the extent of any conflict or inconsistency between these Terms of Service and the Specific Terms, and except as expressly specified in any part, the Specific Terms will prevail.

2.         Access to Software

• Cotiss grants you a non-exclusive, non-transferable, limited and revocable licence to access and use the Software solely for your internal use and benefit in your normal course of business operations in accordance with the Agreement.
• The Administrator is responsible for managing use of the Software with Authorised Users within your organisation and utilising any control functions within the Software in accordance with the Subscription Plan.
• Where you are registered to use the Software for and on behalf of a company, organisation or other entity, you represent and warrant that you have the authority to bind that company, organisation or other entity to the use of the Software under the terms of this Agreement.
• Your access and use of the Software is subject to your compliance with the terms and conditions of the Agreement and is granted for your use in the country in which you are ordinarily resident or have your registered office and is for the licence model, number and type of named authorised users and/or devices agreed and paid for in accordance with the Subscription Plan.
• When using our Software, you will:
  • keep secure logins and password for your access and use of Software and keep such logins and passwords confidential;
  • allow Cotiss at any time to log or audit your use of the Software in order to establish whether such use is in accordance with the Agreement or to calculate the applicable Subscription Fees;
  • promptly disable your login account, or enable Cotiss to do so, if you or Cotiss discovers that any login details have been provided to any unauthorised third party; and
  • as Administrator, arrange for payment to Cotiss on demand for an amount of any underpayment of Subscription Fees discovered by Cotiss through undertaking the audits or logs referred to in clause 2.5(b).
• When using the Software, you will not attempt to (directly or indirectly):
  • to store or transmit infringing, libellous or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
  • access, store, distribute or transmit any Malicious Code in respect of the Software or our backend systems;
  • except to the extent permitted by any applicable law which is incapable of exclusion by agreement between the parties:
    • attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media by any means; or
    • attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all of any part of the Software.
  • access all or any part of the Software in order to build a product or service which competes with the Software;
  • attempt to undermine, intentionally interfere with or disrupt the integrity or security of:
    • the Software; or
    • our or any third party's systems, networks, data, or resources used in the provisions of the Software;
  • use or publish any of Cotiss' branding, trademarks, or logos except with Cotiss' prior written permission; or
  • attempt to obtain or assist unauthorised third parties in obtaining access to the Software ,

and Cotiss may, without liability to you, disable your access to the Software if you are in breach of this clause 2.6.

• You will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event, or any such authorised access to use, promptly notify Cotiss.
• You acknowledge that Cotiss regularly upgrades and updates the Software as it is continually evolving. Some of these changes will occur automatically, while others may require you to schedule or implement the changes. You will, where required, upgrade your software (including your web browser) and/or devices in order to make efficient use of the Software, Cotiss will provide you with reasonable notice of any such changes.

3.         Your Data

• If you are providing Cotiss with personal data, then the Privacy Policy applies. Please read the Privacy Policy carefully as it forms part of the Agreement
• You warrant, and Cotiss acknowledges and agrees, that you will have sole responsibility for the legality, reliability, integrity, accuracy, quality, appropriateness of Your Data. You are responsible for Your Data being in a proper format as may be specified by Cotiss.
• Cotiss will take appropriate technical and organisational measures against unauthorised or unlawful access to or processing of Your Data or its accidental loss, destruction or damage and Cotiss will, as part of these measures, use reasonable endeavours to back-up Your Data. You acknowledge that if there is any loss or damage to Your Data, your sole and exclusive remedy will be for Cotiss to use reasonable commercial endeavours to restore such lost or damaged data from the latest back-up of Your Data maintained by Cotiss, however such restoration by Cotiss is not guaranteed. You are responsible for keeping your own up-to-date back-up copies of Your Data.
• Cotiss will not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party.
• You acknowledge and agree that we may use Your Data for the purpose of:
  • performing our obligations under the Agreement;
  • ensuring that you are complying with the terms and conditions of the Agreement;
  • improving or enhancing the Software;
  • performing data analysis on an aggregated and anonymous basis;
  • investigating any complaints about you or made by you, or if we have reason to suspect you are in breach of the Agreement or that you are or have otherwise been engaged in any unlawful activity;
  • as required or permitted by any law;
  • except where you have opted-out:
    • assessing the performance of your business, including comparing or benchmarking such performance against the performance of our other customers; and
    • accessing other services we may provide and promote to you, including offering services that may assist in improving performance,

provided that we comply with our confidentiality obligations under clause 8.

4.         Your Obligations

• You will:
  • provide Cotiss with all necessary co-operation in relation to the Agreement, and all necessary access to such information as may be required by Cotiss so that Cotiss can provide the Software to you, including but not limited to Your Data, security access information, configuration services and servers. You warrant that you are authorised to provide the foregoing information and/or access to Cotiss;
  • comply with all applicable laws (including applicable privacy laws in respect of your collection, use and disclosure of any personal data that is included in Your Data) with respect to your use of the Software under the Agreement;
  • carry out all of your responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed between the parties, we may adjust any agreed timetable or delivery schedule as reasonably necessary;
  • use the Software in accordance with the terms and conditions of the Agreement;
  • ensure that your network and systems comply with the relevant specifications as may be specified by Cotiss from time to time; and
  • be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to Cotiss' data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links caused by the internet.
    

5.         Charges and Payments

• The Administrator will arrange for payment of the Subscription Fees to Cotiss in accordance with your Subscription Plan
• Payment must be made periodically by authorised automatic charges or direct debits to the nominated credit card or bank account. The Administrator authorises us to charge the Subscription Fee automatically in accordance with the Subscription Plan.
• If a debit or credit card is used to set up payments under a Subscription Plan, the Administrator represents and warrants that they are authorised to use the card, and all charges may be billed to that card and won't be rejected. We reserve the right to retry the card details provided to us in the instance of failed payment.
• If we are then still unable to receive payment for any reason, including, without limitation, expiration or insufficient funds, we may, without liability to you:
  • disable access to all or part of the Software, and will be under no obligation to provide access to any or all of the Software; and/or
  • interest will accrue on such due amounts at an annual rate equal to the Official Cash Rate as published by the Reserve Bank from time to time plus 4%.
• All amounts stated in the Agreement are:
  • exclusive of all applicable taxes, levies and duties (if any); and
  • unless otherwise stated, specified in New Zealand dollars.
• If required by law to deduct or withhold taxes or charges from the amounts due to Cotiss under the Subscription Plan, the Administrator will ensure that the amount due to Cotiss is increased so that the payment actually made to Cotiss is the amount due to Cotiss as if no such taxes or charges had been imposed.
• Cotiss reserves the right to increase the Subscription Fees. Any changes to the Subscription  Fees will be notified to the Administrator via email giving at least 20 Business Days' notice, except where such changes are required by law or any regulatory authority.
  

6.         Trial period

• If the Administrator chooses to participate in a free Trial of the Software, Cotiss will make the Software available to you on a charge free basis until the earlier of (a) the end of the Trial period for which you are registered to use the Software, (b) the start date of the Subscription Plan for use of the Software or (c) as otherwise stated under the Subscription Plan.
• We may discontinue the Trial at any time in our sole discretion and may never make a Trial generally available.
• Any data that you enter into the Software during the Trial will be permanently lost unless you purchase a Subscription Plan covering the same services offered to you during the Trial before the end of the Trial period.
• Notwithstanding anything to the contrary in this Agreement, any Trial is (a) provided without giving any warranty and without our accepting any responsibility or liability to you whatsoever and (b) provided for evaluation and demo purposes only and not for production use.

7.         Intellectual Property Rights

• You acknowledge and agree that Cotiss and/or its licensors own all Intellectual Property Rights in the:
  • Software;
  • Sites;
  • Trial; and
  • all content (other than Your Data)

(together, the Cotiss Content, which shall include all modifications, enhancements and other developments to the Cotiss Content, whether or not recommended or suggested by you).

• You further acknowledge and agree that the Cotiss Content is provided to you on a “software as a service” basis only and not sold, assigned or transferred to you and that, except as expressly stated in the Agreement, the Agreement does not grant you any rights to, or in, the Cotiss Content.
• You may not use, copy, publish or reuse in any form or any means the Cotiss Content without our express prior written consent.
• You warrant, and Cotiss acknowledges and agrees, that you own the Intellectual Property Rights in Your Data. You grant Cotiss a non-exclusive right to use Your Data to perform its obligations under the Agreement, and otherwise in the manner as expressly set out in the Agreement.

8.         Confidentiality

• Each party will keep the other party’s confidential information confidential and will not:
  • use any of the other party’s confidential information except for the purpose of exercising or performing its rights and obligations under the Agreement; or
  • disclose any of the other party’s confidential information in whole or in part to any third party, except as expressly permitted by the Agreement.
• In relation to either party, confidential information means any and all information that is by its designation or nature confidential to that party, including as applicable but not limited to business, technical, financial and other information, but does not include information which:
  • is or becomes generally available to the public (other than as a result of a breach by the receiving party of this clause 8;
  • was, is, or becomes, available to the receiving party on a non-confidential basis from a person who is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
  • the parties agree in writing is not confidential or may be disclosed.
• A party may disclose the other party’s confidential information to those of its officers, employees, contractors or professional advisors (Representatives) who need to know that confidential information for the purpose of exercising or performing its rights and obligations under the Agreement, provided that:
  • it informs those Representatives of the confidential nature of the confidential information before disclosure; and
  • at all times, it is responsible for the Representatives’ compliance with the confidentiality obligations set out in this clause 8.
• A party may disclose confidential information to the extent required by law, by any governmental or other regulatory authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of the disclosure as possible so as to give the other party the opportunity to limit or resist such disclosure.
• Each party will on demand and, in any event, on termination of the Agreement, deliver to the other party all confidential information and any other document supplied by or obtained from the other party.
• This clause 8 will survive termination of the Agreement.

9.         Warranties and Liability

• Cotiss warrants that:
  • the Software will function substantially in accordance with the Agreement; and
  • the Software will be free from Malicious Code.
• If the Software does not function substantially in accordance with the Agreement, Cotiss will, at its option, either:
  • modify the Software to conform with the Agreement or such that it does not infringe those rights; or
  • provide a workaround solution or procure a continuing lawful right for you to use the Software (or component thereof).

If neither of the options in paragraphs (a) or (b) is commercially feasible, either party may terminate the Agreement by giving written notice to the other party. Paragraphs (a) and (b) constitute your sole and exclusive remedy for any breach of the warranty set out in clause 9.1.

• Cotiss will not be liable for a breach of the warranty in clause 1 to the extent of any non-conformance which is caused by use of the Software which is contrary to the Agreement and any other of Cotiss' instructions, or modification or alteration of the Software by any party other than Cotiss or its duly authorised contractors or agents.
• Cotiss does not warrant:
  • that your use of the Software will be uninterrupted or error-free or that the Software is free of bugs;
  • that the Software and/or the information obtained by you through the Software will always be available, either in its current form or at all;
  • that Cotiss will support, maintain or continue to offer the Software;
  • that the Software and/or the information obtained by you through the Software will meet your requirements;
  • the accuracy, correctness, reliability and completeness of any information, analysis, calculation, or report provided through the use of the Software (together referred to as Results). You acknowledge the Results are based on third party information for informational purposes only, and that the assumptions used and figures generated are for purposes of illustration and reference only, and are subject to change depending on a variety of factors, which may not have been considered at the time the Results were created. To the maximum extent permitted by law, Cotiss will not be liable for any form of loss or damage, arising out of or in connection with your reliance on and use of the Results;
  • that the Software is appropriate or available for use in all countries or that the content satisfies the laws of all countries. Use of the Software is strictly limited to residents of New Zealand and Australia.
• You acknowledge that:
  • Cotiss may rely on the provision of services by third parties (including data centre, electricity, telecommunications and outsourcing providers) in order to provide the Software (Third Party Providers) and that the Software may be subject to limitations, delays and other problems inherent in the use of such services provided by Third Party Providers; and
  • Cotiss will not be responsible for any delays, delivery failures, or any other loss or damage arising out of or is in connection with any services provided by Third Party Providers, including any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.
  • while Cotiss may facilitate and provide a platform for suppliers and buyers to work together, Cotiss does not control the content and the process of the engagement. Cotiss does not exercise any influence, or have any ability to amend the rules, practices or procedures of any supplier.
• Except as expressly set out in the Agreement, the Software is 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 Software are expressly excluded.
• You will indemnify Cotiss against all costs, losses, expenses and damages arising out of or in connection with:
  • any claims against Cotiss resulting from your use of the Software ; and
  • any breach by you of the Agreement.
• Cotiss will not be liable to you for loss of profits, loss of revenue, loss of data, or any indirect, consequential or special loss or damage suffered or incurred by you arising out of or in connection with the Agreement or your use of the Software.
• Cotiss' liability arising out of all claims for loss or damage under the Agreement will not exceed in aggregate an amount equal to the Subscription Fees and the Services Fees actually paid by you to Cotiss in the 6 months prior to the time the liability arises.

10.      Term and Termination

• The Agreement will, unless otherwise terminated as provided in this clause 10, commence on the date you subscribe to use the Software under the Subscription Plan and will continue unless:
  • you select to terminate your use of the Software through the Sites in accordance with the Subscription Plan (including where the Administrator chooses to terminates an Authorised User's access);
  • otherwise terminated in accordance with the provisions of the Agreement.
• Either party may terminate the Agreement if the other party:
  • is in material breach of the Agreement and fails to remedy such breach within 30 Business Days' of receiving notice from the other party specifying the breach and requiring it to be remedied; or
  • goes into liquidation or has a receiver or statutory manager appointed over any of its assets, becomes insolvent or makes any arrangement with creditors.
• On termination of the Agreement for any reason:
  • all licenses granted under the Agreement will immediately terminate and you must cease using the Software;
  • Cotiss may destroy or otherwise dispose of any of Your Data in its possession, unless Cotiss receives, no later than ten days after the effective date of termination, a written request from you for access to the most recent version of Your Data in Cotiss' possession. If Cotiss receives such notice, Cotiss will use reasonable commercial endeavours to allow you to export Your Data in a format specified by Cotiss within 30 Business Days' of receipt of such written request; and
  • 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.
• If you terminate the Agreement under clause 10.1(a) or Cotiss terminates the Agreement under clause 10.2, you will:
  • not be entitled to a refund of any Subscription Fees pre-paid to Cotiss for unused access to the Software; and
  • be liable to pay the Subscription Fees on a prorated basis for each day up to and including the date of termination of the Agreement to the extent that you have not paid for the use of the Software on those days.

11.      Disputes

• If a dispute arises under or in connection with the Agreement (the Dispute), a party may not commence any court or other formal proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause 11, except where the party seeks urgent interlocutory relief.
• A party claiming a Dispute has arisen must give written notice to the other parties specifying the nature of the Dispute (a Dispute Notice). On receipt of a Dispute Notice, the parties will use their best endeavours to resolve the Dispute.
• If, despite the efforts made pursuant to clause 11.2, the Dispute is not resolved within 10 Business Days' (or within such longer period agreed as the parties may agree in writing) any party may, by giving written notice to the other parties, require the Dispute to be submitted to arbitration. The arbitrator will be appointed by the parties or, if the parties cannot agree on an arbitrator within 10 Business Days' of the written notice requiring arbitration, an arbitrator will be appointed, on application of any party, by the President of the New Zealand Law Society within a further five Business Days'. Each party will bear its own costs of the arbitration and will contribute equally to the cost of the arbitrator.
• Pending resolution of a Dispute, the parties must continue to perform their obligations under this Agreement.

12.      Force Majeure

• Cotiss will have no liability to you under the Agreement if Cotiss is prevented from, or delayed in, performing their obligations under the Agreement, or from carrying on Cotiss' business, by acts, events, omissions or accidents beyond Cotiss' reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Cotiss or any other party), failure of a utility service or transport or telecommunications network or service of a Third Party Provider, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, epidemic, pandemic or related government mandates or default of suppliers or sub-contractors. Cotiss will notify you of such an event and its expected duration as soon as reasonably possible.

13.      General

• Any notice to be given under the Agreement must be made in writing by email by each party for that purpose from time to time and marked for the attention of the designated person or office holder (if any). Any communication by email will be deemed to be received when transmitted to the correct email address of the recipient with no indication of incomplete transmission. Any other communication in writing will be deemed to be received when left at the specified address of the recipient or on the third Business Day following the date of posting.
• You will not assign, transfer, novate or otherwise deal with the Agreement or any of your rights or obligations under the Agreement, whether in whole or in part, without Cotiss' prior written consent. Cotiss may assign, transfer, novate or otherwise deal with the Agreement or any of its rights or obligations under the Agreement, whether in whole or in part, without your prior written consent.
• The Agreement constitutes the entire agreement of the parties about its subject matter and supersedes any previous understanding or agreements on that subject matter.
• The Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.
• A provision or a right under the Agreement may not be waived except in writing signed by the party granting the waiver.
• If any provision of the Agreement is held to be invalid or unenforceable the remaining provisions of the Agreement will not be affected and will remain in full force and effect.
• A party may exercise a right, power or remedy under the 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 the Agreement does not prevent a further exercise of that or of any other right, power or remedy.
• The Agreement is governed by the laws of (1) New Zealand (where you are ordinarily resident or incorporated in New Zealand) or (2) Australia (where you are ordinarily resident or incorporated in Australia), as applicable. The parties submit to the non–exclusive jurisdiction of the courts of those jurisdictions respectively in respect of any dispute or proceeding arising out of the Agreement.