- By registering for the Service on this Website, you accept this Agreement on behalf of the customer you name on the registration form when you click “I Accept” at the end of this Agreement. You personally represent that you have the power and authority to legally bind the customer named on the registration form to this Agreement.
- If you do not accept this Agreement or you do not have the power and authority to legally bind the named customer, you must click “I Do Not Accept”. You will have no right to use the Service.
- In addition to the terms defined in clause 1, the following words have the following meanings:
“App” means the Termius application downloaded by you or on your behalf that interacts with the Service to provide you with remote access;
“Data” means all data, information and software that is transmitted by you, or any other person (except for Crystalnix) on your behalf, using the App, the Service or the Website;
“Device” means any hardware upon which the App is installed, including (without limitation), Apple iPhones or iPads;
“IP Rights” means all industrial and intellectual property rights whether conferred by statute, at common law or in equity, including, but not limited to all copyright and similar rights that may subsist in works or other subject matter, trade secrets and know-how, rights in relation to designs (whether registrable), business names and resources used by Crystalnix or its related companies to operate their businesses, provide the App, Website or Service to you, or to provide any other services to other customers;
“Service” means providing you with access to certain remote access control software that allows you to access the App via the Website;
“Website” means the website located at www.termius.com, or any other website through which we offer the Service.
- In addition to the terms defined in clause 1, the following words have the following meanings:
REMOTE ACCESS SERVICE
- Crystalnix grants the Customer a limited, non-exclusive, non-transferable right to use the Service for its internal business purposes only, subject to the terms and conditions of this Agreement
SUPPORT AND BACK-UPS
If you are experiencing technical problems with the Service, Website or App, you must:
- make reasonable efforts to investigate and diagnose problems; and
- check the on-line support documents on the Website,
- While Crystalnix intends to have the Service and Website available at all times, it gives no warranty or undertaking that the Service or Website will be so available. In addition, maintenance or development work may result in the Service or Website being unavailable.
- Crystalnix performs some back-ups daily. However, you are solely responsible for obtaining back-ups of any and all of your Data. If you want to restore or recover any of your Data from a Crystalnix back-up, you must make a written request to Crystalnix and agree to pay the applicable restoration fee, if that Data is available.
- If you are experiencing technical problems with the Service, Website or App, you must:
You warrant that you:
- have provided complete, accurate and current information when registering for the Service;
- are acquiring the Service and using the Website for the purposes of a business;
- have obtained all necessary permissions and authorisations to use the Data, the App, the Service and the Website for the purposes to which you put them, including (without limitation) from any person to whom you provide or receive services, where those services involve the App, the Service or the Website; and
- have satisfied yourself that the Service, the App and the Website are suitable for the purposes to which you put them.
- You will ensure that any person to whom you provide or receive services involving the App, the Service or the Website complies with the terms of this Agreement as if they were a party to this Agreement as a Customer
- comply, and ensure that any of your personnel who use the Service or Website will also comply, with this Agreement and all laws applicable to the Service, Website or your Data;
- implement effective security measures to prevent unauthorised access to the Service, the Website or to our Network;
- keep your login information, user names, session codes and passwords secret and secure;
- immediately notify Crystalnix of any suspected breach of security or unauthorised use of your login information, user names, session codes or passwords; and
- fully co-operate and provide all assistance requested by Crystalnix to enable us to provide you with the Service, any technical support and to investigate and manage any breach of security to the Network, the Website, the Service or the App.
You will not:
- attempt to undermine the security or integrity of Crystalnix’s Network or where the Service is provided by a third party, that third party’s computing systems or networks;
- use, or misuse, the Service in any way which may impair the functionality of the Service, App, Website or other systems used to deliver the Service, or may impair the ability of any other user to use the Service, App or Website;
- attempt to gain unauthorised access to any data, information or systems on or connected to the Network; or
transmit using the Service, App or Website:
- any virus, trojan horse or any other file, code or software that may damage another person’s hardware, software or systems or may use or access the resources of another person’s hardware, software or system without their express knowledge and consent; or
- any Data that may be offensive, illegal, defamatory, or that you do not have any legal right to use.
- You warrant that you:
TERM AND TERMINATION
- This Agreement will begin on the date that you register for the Service and, unless terminated earlier as provide in this clause 6, will automatically end when you have not used the Service for a period of 1 year (“Term”).
- Either party may terminate this Agreement at any time during the Term by giving the other party 30 day’s prior written notice.
Without prejudice to any other right or remedy it may have, either party may immediately terminate this Agreement at any time by giving to the other party notice in writing if:
- the other party is in material breach of this Agreement and the material breach is not remedied within 30 days of the other party receiving notice specifying the material breach and requiring its remedy;
- the other party ceases or threatens to cease to carry on all or substantially all of its business or operations, is declared or becomes bankrupt or insolvent, is unable to pay its debts as they fall due, enters into a general assignment of its indebtedness or a scheme of arrangement or composition with its creditors, or takes or suffers any similar or analogous action in consequence of debt;
- a trustee, manager, administrator, administrative receiver, receiver, inspector under any legislation or similar officer is appointed in respect of the whole or any part of the other party’s assets or business;
- an order is made or a resolution is passed for the liquidation of the other party (other than voluntarily for the purpose of a solvent amalgamation or reconstruction);
the other party, being an individual:
- dies or is physically incapacitated;
- becomes, or if any of the other party’s property becomes, the subject of an order made pursuant to the Protection of Personal and Property Rights Act 1988;
- becomes a mentally disordered person within the meaning of the Mental Health (Compulsory Assessment & Treatment) Act 1992;
- is convicted of any criminal offence punishable by imprisonment; or
- is declared or becomes bankrupt or insolvent, or is unable to pay his or her debts as they fall due; or
- the other party (being a partnership) is dissolved; or
- any similar or analogous event to any of those clauses 6.3(b) to (e) occurs in relation to a party under any other law applicable to that party.
On termination or expiry of this Agreement for any reason whatsoever:
- Crystalnix will immediately stop providing the Service and your access to the Service and any Data within Crystalnix’s control will end;
- the provisions of clauses 4.2, 4.3, 5.1 to 5.4, 6.4, 7.1 to 7.7, 9.1 to 9.3, 11.1 to 11.3 and 13.1 to 13.8 and any other clauses intended to survive termination, together with those other provisions of this Agreement that are incidental to, and required in order to give effect to those clauses, will remain in full force and effect; and
- subject to this clause 6.4, and except for any rights and remedies of the parties that have accrued before termination or expiry, including for any prior breach of this Agreement, neither party will be under any further obligation to the other party.
- You understand and agree that use of the App, the Website and Service by you and your personnel is at your sole risk. The Website and Service are provided by Crystalnix on an “as is” and “as available” basis. If you are not satisfied with the Website or Service, your sole and exclusive remedy is to terminate this Agreement under clause 6.2.
You acknowledges that, except as expressly provided in this Agreement, Crystalnix gives no warranties, terms or conditions in relation to the subject matter of this Agreement, either express or implied, including but not limited to any warranties, terms or conditions relating to quality, fitness for any particular purpose or ability to achieve a particular result. You acknowledge that:
- Crystalnix does not warrant that Website or the Service will be available at all times or be secure or be error-free, as some of the systems used to provide the Website and the Service (including, without limitation, the Internet and telecommunications networks) are operated and controlled by third parties;
- you do not enter into this Agreement in reliance on any representation, warranty, term or condition except as expressly provided in this Agreement; and
- any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
In no event will Crystalnix be liable (whether in contract, tort, including negligence, or otherwise) to you for:
- loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of Data or wasted management or staff time; or
- loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature,
- The maximum liability of Crystalnix for any breach of this Agreement or otherwise relating to the App, the Service or the Website will not exceed $US100.00.
- None of the exclusions or limitations set out in this Agreement will have the effect of limiting or excluding any form of liability to the extent such liability cannot be so limited or excluded under applicable law.
You may not bring any proceedings under or relating to this Agreement in relation to:
- any act or omission of Crystalnix; or
- any breach by Crystalnix of this Agreement, after the earlier of the following two dates:
- the date falling one year after you first became aware of the relevant act, omission or breach; or
- the date of the expiry of the applicable limitation period under relevant law.
You agree to indemnify and keep indemnified Crystalnix and its directors, employees, contractors, agents and other personnel from and against all actions, claims, costs (including legal costs and expenses), losses, proceedings, damages, liabilities, or demands suffered or incurred by Crystalnix arising out of or in connection with:
- your breach of this Agreement; or
- your negligent act or omission.
- you breach any term or condition of this Agreement;
- if any of the events described in clauses 6.3(b) to (g) occur in relation to you or your business;
- You will still be charged fees (if applicable) while your access is limited or suspended.
INTELLECTUAL PROPERTY RIGHTS
- You acknowledge and agree that Crystalnix or its licensors are the owners of all IP Rights in the Website, Network, the Services, the App and all parts of them. You may not in any form or by any means copy, reproduce, adapt, store, perform, publish, compile, distribute or create any derivative works from, any part of the Website, the Service, the App or the Network.
You agree not to attempt to:
- damage or interfere with the Website, the Network, the App, the Services or any part of them, in any way whatsoever; or
- attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the App or any software, script or code comprising or underlying the App, the Service or the Website, or any part of them (except to the extent expressly permitted by applicable law).
- You grant to Crystalnix a worldwise, non-exclusive, royalty-free licence to use, copy, transmit and store your Data for the purpose of providing the Service to you and for Crystalnix’s business purposes related to the provision of the Service, the App and the Website.
FORUMS AND FEEDBACK
- Crystalnix reserves the right to amend or remove any feedback, posts to message boards, blogs or forums and any other information on its Website for any reason, including (without limitation) where such information is defamatory, offensive, illegal, false or inappropriate.
- You must only use such feedback facilities, message boards, blogs and forums on the Website for genuine comment on the App, Service or Website. You may not use any of them to offer any goods or services for sale or hire, or to send unsolicited email or communications.
- You will pay all applicable fees (if any) incurred by you in relation to the Service provided by Crystalnix in the amounts specified in Crystalnix’s current Fee Schedule. Fees for any new services will be effective immediately after Crystalnix posts them on the Fee Schedule on the Website. Any changes in fees for any existing services provided to you (including the Service) will be effective from the date falling 30 days after Crystalnix posts them on the Fee Schedule on the Website. If you do not agree to any changes to fees, you should terminate this Agreement under clause 6.2.
- Crystalnix will invoice each Customer monthly in arrears for fees for any services provided in the previous month. The Customer will pay any such invoices within 10 days of the date of such invoice. If you do not give written notice to Crystalnix of a disputed amount within 60 days of receiving the invoice for that amount, the fees specified in that invoice will be deemed to be accurate.
All fees due to Crystalnix under this Agreement:
- are exclusive of any GST, sales tax, value added tax, duties, imposts or levies which, where applicable, will be payable by the Customer;
- are in and will be paid in US dollars;
- will be paid without deduction or set-off of any kind, and without deduction of any taxes, charges or duties that may be imposed, except for any taxes, charges or duties that Customer is required by law to deduct; and
will be paid by the due date, failing which Crystalnix:
- may charge interest on any outstanding amount on a daily basis at an annual rate equivalent to the standard commercial overdraft interest rate charged by Crystalnix’s bankers plus 2%, from the due date until the date of actual payment; and
- if Crystalnix incurs any costs or expenses by reason of Customer’s failure to pay any amount by the due date, Customer will reimburse Crystalnix for all costs and expenses that Crystalnix incurs in connection with any actions taken to recover such amounts, including all reasonable accounting costs, attorney costs (on a solicitor and own client basis), court costs and debt collection costs.
- Crystalnix will not be liable for any failure or delay to perform any of its obligations under this Agreement to the extent they are caused or contributed to by any event beyond Crystalnix’s reasonable control.
- This Agreement may be amended by Crystalnix from time to time. Amendments will be effective immediately upon posting on the Website, but Crystalnix will try to give registered users advance notice of any amendments by email. If you do not accept any amendment your sole and exclusive remedy is to terminate this Agreement under clause 6.2. Your continued use of the Service after 60 days from the date the amendment is posted will constitute your express acceptance of that amendment. You are responsible for ensuring you are familiar with the latest version of all parts of this Agreement.
- No failure or delay by Crystalnix in exercising any right, power or privilege under this Agreement will operate as a waiver of such right, power or privilege, nor will any single or partial exercise preclude any other or further exercise of any right, power or privilege under this Agreement.
- You may not assign, novate or transfer this Agreement or any part of it without the prior written consent of Crystalnix. Crystalnix may transfer this Agreement or any part of it to any person without your consent.
- Nothing in this Agreement confers a benefit on any person who is not a party to this Agreement. Crystalnix has no obligations to any person (other than you) in relation to this Agreement.
- This Agreement contain the whole of the contract and understanding between the parties relating to the matters covered by it and supersede all prior representations, agreements, statements and understandings between the parties relating to those matters, whether verbal or in writing.
- If any provision of this Agreement is held to be invalid, unenforceable or illegal for any reason, and in any respect, that provision will be deemed to be amended by the addition or deletion of wording necessary to remove the invalid, unenforceable or illegal part, but otherwise to retain the provision to the fullest extent permitted under applicable law.
- This Agreement are governed by the laws of New Zealand. You submit to the non-exclusive jurisdiction of the Courts of New Zealand.