These general conditions of sale are concluded between the "Customer", individuals ("Users") invited to access Workspaces created by the Customer, and Smartstar Technology Ltd, ("Smartstar"), that develops, operates, maintains and hosts the SmartJobs Services accessible through the URL address www.smartjobs.io
"Customer" means the individual or the legal entity who registers and activates Services provided by Smartstar and assumes payment responsibility for the Services.
"User" means the individual (i.e. an employee of the Customer or a third party) who, following an invitation from the Customer, registers a user account and gains access to the Services.
"Licensee" means the Customer and the User.
"Workspace" means an access to the Services subscribed to, and managed by, the Customer, as defined at the Web Site.
"Services" means the SmartJobs Internet services, the Customer's Workspace, associated online software, and other services related thereto provided to the Customer by Smartstar in accordance with this Agreement and with the characteristics and features as described at the Web Site, subject to change from time to time.
"Subscription Plan" means a Workspace with a defined set of usage terms, provided in consideration of a fee per period.
"Content" means all visual, written or audio data, information or material including, without limitation: documents, spreadsheets, text messages, form entries, wiki pages, digital media files and similar material, which are uploaded to, transferred through, publicly posted, processed or entered into the Services by the Customer or the Users.
"Web Site" means SmartJobs's web site at www.SmartJobs.io.
"Agreement" means the terms and conditions defined in this document and available on the Web Site, that all Licensees agree to by completing the Customer or User registration form.
"Security Policy" means the SmartJobs security policy which explains the information gathering and dissemination practices for the Service, available at the Web Site, that all Licensees agree to by accepting the Agreement.
"Third Party" means external individuals or companies that are not Licensees and who do not have access to the Services.
Services and License Grant
Subject to the terms and conditions of this Agreement, Smartstar hereby grants to the Licensee a worldwide, non-transferable, non-exclusive, non-sublicensable right to access and use the Services.
Smartstar reserves the right to effect modifications to the design, operational method, technical specifications, systems, and other functions of the Services, at any time without prior notice.
Smartstar undertakes to use its best efforts and all necessary means; in order to ensure the accessibility of Services via Internet, twenty-four hours a day, seven days a week. Smartstar will still be entitled to take measures affecting the aforementioned accessibility for technical reasons, maintenance, operation of the Services or security. The Customer is also aware and acknowledges that access to the Internet cannot be guaranteed and that Smartstar in no event shall be held liable for any deficiencies in the Customer's own Internet connections or equipment.
The Customer is entitled to provide Users with access to the Customer's Workspace and the Services. The Customer acknowledges and agrees to be responsible for the accounts of Users for whom he authorized access to the Services.
Smartstar is entitled to retain subcontractors for the performance of obligations in accordance with this Agreement
Customer and User Obligations
The Licensee has to comply with the Security Policy available at the Web Site.
The Customer ensures that all details provided are his (the Customer's) regarding contact information, billing information and credit card information, where applicable, are correct and undertakes to update such information regularly.
The Licensee is solely responsible for the activities conducted by the Licensee within his use of the Services. As such, is responsible for ensuring compliance with national laws in conjunction therewith. All Content uploaded to, transferred through, publicly posted, processed or entered into the Services by the Licensee is the sole responsibility of the Licensee.
The Customer is solely responsible for monitoring its Workspace. As such, is committed to ensuring and not hold Smartstar liable for any Content transferred to or handled within the Services which is processed by the Licensee that infringes any Third Party rights or in any other manner violates governing legislation. The Licensee affirms to Smartstar that he holds in order such necessary licenses from Third Parties as may be required in order to process the Content and use the Services.
The Customer is entitled to assign the administration responsibility to monitor a Workspace to a designated User. The designated User will then have the same monitoring obligation as the Customer.
The Licensee undertakes to use the Services in such a manner that such use does not prevent or disrupt other computer communications or mobile telephone communications or prevent or disrupt the equipment employed in order to provide and use the Services.
The Licensee is aware and acknowledges that it is not permitted to use the Services in order to gain material in violation of law or generally accepted practices.
The Licensee undertakes not to use the Services in order to obtain material which per se, or if sent to another party, might injure the reputation of a Third Party, or in any manner which may result in the infringement of any Third Party's copyright, or which constitutes a dissemination of business secret, or may incite a Third Party to commit or participate in a crime, or may be understood as constituting a threat, or to use the Services in any other manner incompatible with the purpose thereof.
The Customer undertakes not to provide access to the Services to anyone other than Users who have completed the registration form and thereby agreed to the Agreement.
The Licensee is obligated to notify Smartstar regarding any suspected breach of these provisions.
Payment Terms – Billing
The Customer pays for the Services in accordance with the fees applied by Smartstar. This payment obligation solely applies to Customers and not to Users.
For billing purposes, all currency references are in NZD. All payments for Services are billed monthly and are non-refundable.
All Subscription Service fees are inclusive of GST. The Customer undertakes to make payment of invoices in NZD.
Late payment will result in automatic application of a default interest rate of 19.5% in effect on the date the payment is due, calculated on the amount of the invoice due to the day following the due date thereof until the date of payment. Any delay in payment exceeding a period of thirty (30) days will result in the right, without prior notice, to suspend the Licensee access to the Workspace and Services. Any delay in payment exceeding a period of sixty (60) days will result in automatic termination without prior notice of this Agreement. Customer's and User's access to Workspace and Services, as well as contents will be permanently deleted, without Smartstar being held liable in any capacity whatsoever, as a result of this deletion.
In the event of early termination of the Agreement by the Customer, the Customer shall not be entitled to a refund of any prepaid fees.
Access to the Services is licensed for usage, no transfer of ownership can occur. Smartstar owns and retains all title and intellectual property rights associated with the technical solutions made available to Customers and Users. Such intellectual property rights and technical solutions may only be used by the Customer within the current terms and conditions of this Agreement. Under no circumstances shall the Customer or a Third Party acquire, on acceptance of this Agreement, the Intellectual Property Rights on the Services, software or technical solutions, trademark or names that shall remain the exclusive property of Smartstar.
All Content uploaded to, transferred through, publicly posted, processed or entered into the Services by the Licensee remains the sole property of the Licensee or its respective legal owner as well as retaining the sole liability for said Content. Smartstar has no liability for such Content.
Smartstar provides Customer support by e-mail regarding Customers' enquiries. Such support is provided on Smartstar weekdays (excluding public holidays) during Smartstar's regular office hours (from 9:00 am to 5:00 pm and to the reasonable extent decided upon in detail by Smartstar.
Enquiries and/or error notices must be submitted to Smartstar by e-mail in accordance with contact information available at the Web Site.
Smartstar has adopted reasonable measures to ensure that the security of the Services meet relevant industry standards. Smartstar's security measures are set forth in the Security Policy as applicable from time to time, which is available at the Web Site.
Smartstar is not responsible for loss or distortion of Content forwarded electronically in or through the Services.
The Licensee ensures that identities, passwords, and equivalent obtained by the Licensee in conjunction with registration are stored and used in a secure manner and cannot be accessed and thereby used by Third Parties. The Licensee shall be liable for any unauthorized use of the Services. Smartstar has no liability for any loss or damage arising from the Licensee's failure to comply with these requirements.
Where it is suspected that any unauthorized person has become aware of a user login and password, the Licensee shall immediately inform Smartstar thereof.
Smartstar warrants to the Licensee that the Services will perform substantially and materially in accordance with its documentation available at the Web Site, under normal use and circumstances, and for the purpose intended. This warranty does not apply to Trial Services which are not covered by any warranty.
Except for the express warranties set forth above and to the extent permitted by law, Smartstar expressly disclaims all other warranties with respect to the Services, whether express or implied, including without limitation, fitness for a particular purpose, accuracy or reliability of results from use of the Services, that the Services will meet specific requirements, that the Services will be uninterrupted, completely secure, free of software errors, or that defects and deficiencies in the Services will be corrected.
Limitation of Liability
Smartstar undertakes to the best of its ability to honour the Services inherent to the Contract and in accordance with the terms of this Agreement, the applicable regulations, rules and accepted general practices.
Smartstar assumes no liability whatsoever to the Customer or Users for any damages and / or consequential damages such as and without limitation, any loss of opportunity, contract, sales, margins, production , customers, data, interruption of economic activity, any increase in operating costs or damage to the image of the Customer or Users.
Smartstar shall in no event be liable for damage resulting from acts of third parties, such as specifically any hardware vendor or third party service provider.
In any event, if the liability of Smartstar should be engaged hereunder for any reason whatsoever and on any grounds whatsoever, the damages and interest that Smartstar would incur, all types of damages, will be limited to a amount equal to the amount paid by the Customer to use the Services during the twelve (12) months immediately preceding the alleged violation of the Agreement.
The Customer acknowledges that this limitation of liability is unbiased and was negotiated in good faith between the Parties taking into account other agreements granted by Smartstar in Contracts and particularly all commitments which Smartstar has with regard to the Customer.
The Customer and its insurers waive any application for appeal or request for any recourse against Smartstar and its own insurers beyond the limits detailed above.
The limitation of liability applies to the fullest extent permitted by applicable rules of public order.
Neither Party shall be liable for non-performance or poor performance of one or more of its contractual obligations due to a force majeure event.
The Party affected by a force majeure event shall notify the other Party by registered mail with acknowledgment of receipt on manifestation of the force majeure event. Unless otherwise decided by the Parties, the obligations of each Party shall be suspended as of the notification.
If the force majeure continues for more than a month after such notice, each Party shall be free to terminate the Agreement by sending to the other Party a registered letter with acknowledgment of receipt.
Smartstar undertakes not to disclose to any Third Party, or otherwise make available, information received by Smartstar from the Licensee within the framework of the Agreement. This confidentiality obligation does not apply to such information as Smartstar can demonstrate became known to Smartstar other than pursuant to this Agreement or which is in the public domain. Nor shall the duty of confidentiality apply where a party is obligated to provide information pursuant to legal provisions, public authority regulations or legal obligations. The duty of confidentiality shall remain in force notwithstanding the termination of the Agreement.
Except for Content mentioned above, Smartstar is not entitled to review Content processed by the Licensee via the Services.
Smartstar reserves the right to amend the terms and conditions of this Agreement including, but not limited to, the fees charged by Smartstar to the Customer from time to time. The Customer will be informed of such amendments by e-mail or through the information being made available at the Web Site. The Customer is entitled, within thirty (30) calendar days from the date of dispatch of the e-mail or, where appropriate, thirty (30) calendar days from the amendment being published at the Web Site, to terminate the Agreement with immediate effect. Where the Agreement is not terminated by the Customer within the aforementioned time, the Customer shall be deemed to have accepted the new terms and conditions.
Terms of Agreement and Termination
This Agreement shall enter into force upon acceptance by the Licensee of these terms and conditions for a fixed term of one (1) year. The absence of termination by registered letter with acknowledgment of receipt, subject to compliance with a notice of one (1) month before the expiry of this Agreement shall be automatically extended for firm contractual period of one (1) year.
Upon termination of the Agreement, Smartstar is no longer responsible for storing the Content generated by the Licensee within the scope of the Services. Accordingly, the Licensee must ensure that it possesses the necessary back-up copies of the Content that it wants to retain.
Upon termination of the Agreement, Smartstar shall be expressly authorized by the Licensees to permanently delete and destroy all Content within the scope of the Service.
For Trial Services, Smartstar shall reserve the right, in its sole discretion, for any reason, including the lack of use, to terminate the account and to delete and destroy any Content within the Service. Such termination of Service will be notified by email at least one (1) month before.
Sections 10 and 12 shall survive any termination of this Agreement.
Smartstar shall be entitled, in whole or in part, to assign its rights and obligations under the Agreement with the Licensee to a company within the same de jure or de facto group of companies as Smartstar without the Customer's prior consent.
Save for the provisions of section 4.4, the Licensee shall not be entitled to assign its rights or obligations under this Agreement without Smartstar's prior written consent. Where the Licensee assigns its rights and obligations under this Agreement and the new party fails to perform its obligations, the Licensee shall bear primary liability for the performance of such obligations.
If any provision of this Agreement is declared unenforceable for any reason, the remainder of this Agreement will continue in full force and effect, and the unenforceable provision shall be amended to the extent possible and permitted by law to achieve as nearly as possible the same intent and economic effect as the original provision.
This Agreement and the ensuing relationship between Smartstar and the Licensee is governed by, and shall be construed in accordance with the laws of New Zealand.
In the event of any dispute relating to this Agreement, the parties agree to initially make a full and good faith attempt to resolve such dispute by negotiation at an executive level, to the extent reasonable under the circumstances, prior to commencing court proceedings.