Terms of Service

Terms of Service

Version 2.11 - 1 April 2020

These Terms govern your use of this Site, any Service, and the Information.
By accessing and using this Site, a Service, or the Information:
• you agree to be bound by these Terms; and
• where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, bind that person to these Terms.
If you do not accept these Terms, you must stop using this Site, the Service and/or the Information.
FormTab may, in its sole discretion, modify or revise these Terms at any time by updating them on the Site. All amendments will be effective immediately upon an update being made. Continued use of this Site, a Service or the Information after an update constitutes your consent to be bound by the amended Terms. You can review the most current version of these Terms at any time at: https://formtabapp.com/terms-of-service/
These Terms do not limit any terms and conditions that apply to your use of a Product [or any Service specific terms].

1.1 Definitions
In these Terms, the following phrases have the stated meaning.
“Information” means any information, content or data made available on this Site or via a Service, including Your Data and any information or material created by FormTab from or using aggregated forms of Your Data and data from other customers.
“Loss” means any claim, damage, loss, liability and cost (including, without limit, legal cost on a solicitor and own client basis).
“Permitted User” means an individual who is your employee or contractor and who is authorised by you to access and use this Site, a Service and the Information on your behalf.
“Product” means any product or application used by you to access a Service, including (without limit)  FormTab services (“FormTab”).
“Service” means any service made available to you by FormTab via the Site, including any service for which you use a Product to access.
“Site” means this website and any other website established by FormTab.
“User ID” means a unique user name and/or password.
“you” (and “your”) means the person accessing or using this Site, the Service and/or the Information.
“Your Data” means all data uploaded by you or on your behalf [using a Product].
“FormTab” (and “we” and “us”) means FormTab Ltd.

1.2 Access and Use
Subject to you complying with these Terms, FormTab authorises you, on a non-exclusive and non-transferable basis, to access and use this Site, the Service and the Information for your own personal or internal business use.

1.3 Your responsibilities
In addition to complying with any other obligation set out in these Terms, you must:
• use the Site, the Service and/or the Information for lawful purposes and in a lawful manner;
• comply with all operating procedures, instructions and policies notified by us from time to time;
• provide true, current and complete information, including when registering, and must promptly update that information as required to ensure it remains true, current and complete
• ensure that any User ID is kept secure and is not used or disclosed to any other person; and
• not act in any way, or use, or attempt to damage, interfere with or introduce, anything (including, without limit, any virus, robot, spider, keystroke logger, scraper or other automated means of data gathering, extraction or monitoring method) that in any way compromises the Site, a Service, the Information or any network or system underlying or connected with them.
You indemnify FormTab against all Loss that it suffers or incurs as a direct or indirect result of:
• your failure to comply with these Terms;
• Your Data infringing any third party’s intellectual property rights or being unlawful.

1.4 Your account and Permitted Users
If you are a corporate user, FormTab may allow Permitted Users to access and use this Site, the Service and the Information on your behalf. In this case, each Permitted User must have their own User ID to access and use this Site, the Service and the Information.
To avoid doubt, you must ensure each Permitted User complies with these Terms and any breach of these Terms by a Permitted User is deemed to be a breach by you.

1.5 Your Data
As between the parties, you own all intellectual property rights in Your Data. You grant FormTab a worldwide and non-exclusive licence to use, copy, modify, make available and communicate Your Data for the purpose of providing the Service to you and for any purposes described in these Terms.
You must backup, on a regular basis and in a format to enable data recovery in the event of loss or corruption, all of Your Data inputted into a Service and retain a copy of the backup.
You must ensure that you download a copy of Your Data prior to you ceasing to use the Site, a Service or the Information. On request, FormTab may provide you with a copy of Your Data provided that it may charge you at its time and material rates for this. FormTab does not warrant that the format of such data will be compatible with any other software or application.
You agree that FormTab may store Your Data (including personal information) in secure servers outside New Zealand.

1.6 Fair Use
FormTab does not charge extra costs when the system is used reasonably and normally. When we determine Fair Use we take into account your plan inclusions and comparative usage of other FormTab accounts.
If we detect behaviour which we consider out of the ordinary, designed to avoid user fees, or outside the spirit of good faith we will contact you to discuss the situation and potential alternatives. If the situation doesn't change, we may apply technical restrictions to enforce the fair use condition.

1.7 Support and related services
If you have a technical problem, you must make all reasonable efforts to investigate and diagnose the problem before contacting FormTab. If you still need technical help, please check the support provided online by FormTab on the Site or failing that email us at solutions@formtabapp.com.
Where FormTab agrees to provide you with custom services (e.g. development, hosting, or customised support services), the terms and conditions related to those custom services will be agreed and documented separately, and these Terms will not apply.

1.8 Payment Terms
Monthly Terms:
If a credit card payment facility is provided to you, the Service is billed in advance on a monthly basis and is non-refundable.
There will be no refunds or credits for partial months of Service, upgrade/downgrade accounts, or for months unused with an open account.

Free Trials:
A valid credit card is required for you to continue using the Service after a 14-day free trial period on a month-to-month basis.
A free trial (if available) entitles new, registered users to a one-time free trial usage of the Service and is otherwise subject to these Terms.

Credit Facility:
If a credit facility is provided to you but the terms of the facility have not been agreed and separately recorded, FormTab will invoice for all charges incurred by you on a monthly basis and you must make payment in full to FormTab of the amount invoiced within 14 days of the date of the invoice.
Except where FormTab has agreed in writing with you the fees that will apply to your use of a Service, the fees payable for a Service are published at locations listed at https://formtabapp.com/pricing.html
FormTab may change Service fees listed on this Site at any time, provided that the new fees are not payable until the month following the month of posting the changed fees on this Site.

1.9 Intellectual Property Rights
Except for Your Data (which is owned by you), FormTab and our licensors own all proprietary and intellectual property rights in the Site, any Service, the Information, the underlying software, and any data or material forming part of any of those items, including (without limit):

• all text, graphics, artwork, photographs, logos, icons, sound recordings and “look and feel”; and
• any enhancement, modification or derivative work of the items listed above.
Except to the extent expressly permitted by these Terms, you must not copy, reproduce, alter, modify, distribute, display, publish or create derivative works from any part of this Site, a Service, or the Information.

1.10 Disclaimers
FormTab provides the Site, the Service and the Information on an “as is” basis. FormTab makes no warranty or representation (express or implied) that the Site, the Service or the Information is accurate, complete, current or fit for any purpose. To the extent permitted by law, FormTab excludes all implied warranties and conditions, including those related to merchantability or fitness for purpose.
FormTab uses reasonable endeavours to ensure the availability of the Site, the Service and the Information, subject to downtime required for maintenance and development activity. However, FormTab takes no responsibility for any unavailability or access delay.
To the extent permitted by law, FormTab has no liability or responsibility for any Loss in connection with:
• any exposure to viruses or other forms of interference which may damage your computer system or expose you to credit card fraud when you access or use this Site, a Service or the Information. You are responsible for ensuring the process you use to access and use this Site, a Service or the Information protects you from this;
• any site linked from this Site or any API used to access this Site, a Service or the Information. Any link on this Site to other sites, or API linked to this Site, does not imply any FormTab endorsement, approval or recommendation of, or responsibility for, those sites or APIs, or their contents, operations, products or operators; and
• loss or corruption of Your Data.
FormTab makes no representation or warranty that the Site, any Service, or the Information is appropriate or available for use in all countries or that the content satisfies the laws of all countries. You are responsible for ensuring that your access to and use of this Site, a Service, or the Information is not illegal or prohibited and for your own compliance with applicable local laws.

1.11 Liability
To the maximum extent permitted by law:
• you access and use of the Site, the Services, and the Information at your own risk;
• FormTab excludes all liability and responsibility to you or any other person for any Loss under or in connection with these Terms (including, to avoid doubt and without limit, in respect of any Loss relating to an item disclaimed under clause 1.9), and your access and use of (or inability to access or use) this Site, the Services or the Information. This exclusion applies regardless of whether liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.
Except to the extent permitted by law, nothing in these Terms has the effect of contracting out of the New Zealand Consumer Guarantees Act 1993 or any other consumer protection law that cannot be contracted out of. To the extent that FormTab’s liability cannot be excluded but can be limited under that Act or law, FormTab’s liability is limited (at its option) to:
• the fees paid for the relevant Service or Information; or
• the cost of reperforming the Service or remedying, repairing, enhancing or replacing the defective Information.
To the maximum extent permitted by law and only to the extent that the other provisions of this clause 1.10 do not apply, FormTab’s total liability to you under or in connection with these Terms, and your access and use (or inability to access and use) this Site, the Services or the Information, must not exceed the lesser of the fees paid by you for the Service the subject of the claim in the month preceding the event giving rise to the liability or NZD200.

1.12 Termination
Without limiting any other right or remedy available to us, FormTab may immediately and without notice suspend or terminate your access to the Site, any Service or the Information where FormTab ceases to provide a Service, considers that you have breached these Terms, or FormTab otherwise considers it appropriate
On suspension or termination, you must immediately cease using the Site, the Service or the Information and must not attempt to gain further access (e.g. by creating a new account or otherwise).
Unless agreed otherwise in writing between FormTab and you, you may terminate a Service on no less than one month’s notice by creating a support ticket requesting termination of the Service (or, failing that, or failing that email us at solutions@formtabapp.com).
Clauses which by their nature are intended to survive termination, after termination, continue in full force and effect.

1.13 Privacy Policy
New Zealand Privacy Policy
Australian Privacy Policy

1.14 Notices
If FormTab needs to contact you or provide you with notice, we may do this by email or by posting a notice on this Site. You agree that this satisfies all legal requirements in relation to written communications.

1.15 Force Majeure
FormTab is not liable for any delay or failure in performing these Terms or a Service where that delay or failure results from circumstances outside our reasonable control.

1.16 Severance
Any term or condition of these Terms which is found to be unlawful, void or unenforceable shall to the extent required be severed and be rendered ineffective as far as possible without modifying the remaining Terms.

1.17 Proper Law and Jurisdiction
These Terms are governed by and interpreted in accordance with the laws of New Zealand. You agree to submit to the non-exclusive jurisdiction of the New Zealand courts in respect of any dispute relating to or in connection with these Terms or the Site, a Service or the Information.

1.18 Waiver
If FormTab does not exercise or enforce any right under these Terms, it does not constitute a waiver of that right.

1.19 Entire agreement
These Terms supersede all previous conditions, understandings, commitments, agreements and representations whatsoever whether oral or written, and constitute the entire agreement between you and FormTab relating to the subject matter of these Terms.