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Terms and Conditions
These terms and conditions (Terms) are entered into between Unicorn Hatch Limited, trading as Hey Skye NZCN 8491168 (we, us or our) and you, together the Parties and each a Party.
We provide a cloud-based, software as a service platform where customers can purchase a chatbot to use on their website. (Platform).
In these Terms, you means the person or entity registered with us as an Account holder.
If you are using the Platform on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.
Acceptance and Platform Licence
You accept these Terms by clicking “I accept” or otherwise accepting these Terms on the Platform.
You and each Authorised User must be at least 18 years old to use the Platform.
We may amend these Terms at any time, by providing written notice to you. By clicking “I accept” or continuing to use the Platform after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Terms. If you do not agree to the amendment and it adversely affects your rights, you may cancel your Membership with effect from the date of the change in these Terms by providing written notice to us. If you cancel your membership, (a) you will no longer be able to use the Platform on and from the date of cancelation, and (b) if you have paid Fees upfront you will be issued a pro-rata refund having regard to the date of termination and the period for which you have paid.
Subject to your compliance with these Terms, we grant you and your Authorised Users a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our Platform in accordance with these Terms. All other uses are prohibited without our prior written consent.When using the Platform, you and your Authorised Users must not do or attempt to do anything that is unlawful or inappropriate, including:
anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual's consent) or any other legal rights;
using the Platform to defame, harass, threaten, menace or offend any person, including using the Platform to send unsolicited electronic messages;tampering with or modifying the Platform (including by transmitting viruses and using trojan horses);
using data mining, robots, screen scraping or similar data gathering and extraction tools on the Platform;or facilitating or assisting a third party to do any of the above acts.
Hey Skye Services
In consideration for your payment of the Fees, we agree to provide you and your Authorised Users with access to the Platform and any other services we agree to provide as set out in your Account.
We agree to use our best endeavours to make the Platform available at all times. However, from time to time we may perform reasonable scheduled and emergency maintenance, and the Platform may be unavailable during the times we are performing such maintenance.
Support Services: We will provide you with support services (Support Services) in relation to the Platform during the hours of 9am - 5pm on weekdays. Should you be unable to access the Platform, or should you have any other questions or issues impacting on your use and enjoyment of the Platform, you and your Authorised Users must place a request via the help desk. We will endeavour to respond to any support requests in a reasonable period.
You acknowledge and agree that the Platform may be reliant on, or interface with third party systems that are not provided by us (for example, Microsoft Azure Open API, DataStax Astra DB, cloud storage providers, CRM systems, and internet providers) (Third Party Services). To the maximum extent permitted by law, we shall have no Liability for any Third Party Services, or any unavailability of the Platform due to a failure of the Third Party Services.
You acknowledge that the chatbot communicates using knowledge and data as provided to it by you, Third Party Software, external sources and its own experience. As a result, there is a risk that the responses of the chatbot may be inconsistent, and the chatbot may confidently provide false or inaccurate information. To the maximum extent permitted by law, we shall have no Liability for the comments or communications of the chatbot.
You acknowledge and agree that data loss is an unavoidable risk when using any software. To the extent you input any data into the Platform, you agree to maintain a backup copy of any data you input into the Platform.
To the maximum extent permitted by law, we shall have no Liability to you for any loss or corruption of data, or any scheduled or emergency maintenance that causes the Platform to be unavailable.
Accounts
You must register on the Platform and create an account (Account) to access the Platform’s features. Each Authorised User will require a login that is linked to your Account in order to access the Platform.
You must provide basic information when registering for an Account including your business name, contact name and email address and you must choose a username and password.
All personal information you and your Authorised Users provide to us will be treated in accordance with our Privacy Policy. You are solely responsible for ensuring you comply with all applicable privacy laws and regulations in relation to the use of the chatbot on your website.
You agree to provide and maintain up to date information in your Account and to not share your Account password with any other person. Your Account is personal and you must not transfer or provide it to others with the exception of your Authorised Users.
You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account, including purchases made using your Account details, and any activity from one of your Authorised Users.Each Authorised User is responsible for keeping their login details confidential. You agree to immediately notify us of any unauthorised use of your Account.
When you create an Account, you must also sign up to a membership (Membership).
Authorised Users
If set out in your Account, you may be permitted to invite a number of users to the Platform, who will be permitted to access and use the Platform under your Account (Authorised Users). We agree to provide you with the number of Authorised Users as set out in your Account.
The Authorised Users will have permission to access certain features of the Platform and your Account, as detailed in your Account and you may adjust these permission settings in your Account.
You will ensure that each Authorised User complies with these Terms. You are responsible and liable for the acts or omissions of your Authorised Users.
Memberships
You may purchase your Membership by paying the Membership fees outlined on the Platform (Fees) in advance on a yearly basis or some other recurring interval disclosed to you prior to your payment of the Fees (Billing Cycle).
Your Membership will automatically renew at the end of the Billing Cycle for the same period of time and you will be charged the Fees in connection with each subsequent Billing Cycle unless and until you cancel your Membership.
The payment methods we offer for the Fees are set out on the Platform. We may offer payment through a third-party provider such as Stripe. You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third-party payment method may be subject to additional terms and conditions. All amounts payable under these Terms are stated in United States of America dollars and are inclusive of GST (where applicable).
You must not pay, or attempt to pay, the Fees by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment. If payment is made by direct debit, by providing your bank account details and accepting these Terms, you authorise our nominated third party payment processor to debit your account in accordance with these Terms and you certify that you are either an account holder or an authorised signatory on the account for which you provide details.
You agree that we may set-off or deduct from any monies payable to you under these Terms, any amounts which are payable by you to us in connection with the Platform.
We do not store any credit card details, and all payment information is collected and stored through our third-party payment processor.
Changes to your Membership: If you wish to change your Membership (for example, by or varying the number of Authorised Users associated with your Account), you must provide notice to us through your Account that you wish to vary your Membership at least 2 business days before the end of the current Billing Cycle.
The Fees are only refundable and cancellable in accordance with your Consumer Law Rights and these Terms.
We may need to change what is available as part of your Membership (for example, the inclusions, exclusions, updated features) from time to time. If we change what is available as part of your Membership, we will provide you with at least 30 days’ notice of the change. After the notice period has lapsed, we will apply the changes to your Membership. If the changes adversely affect your enjoyment of the Membership, you may cancel your Membership with effect from the date we apply the changes to your Membership by providing written notice to us. If you cancel your membership, (a) you will no longer be able to use the Platform on and from the date of cancelation, and (b) if you have paid Fees upfront you will be issued a pro-rata refund having regard to the date of termination and the period for which you have paid.
We may need to change the Fees from time to time. If we change the Fees, we will provide you with 30 days’ notice of the change. After 30 days, we will apply the updated Fee to your Membership. If the updated Fee is not acceptable to you, you may cancel your Membership in accordance with the ‘Cancellation of Memberships’ clause.
Our Intellectual Property
You acknowledge and agree that any Intellectual Property or content (including copyright and trademarks) available on the Platform, the Platform itself, and any algorithms or machine learning models used on the Platform (Our Intellectual Property) will at all times vest, or remain vested, in us.
We authorise you to use Our Intellectual Property solely for your internal business use. You must not exploit Our Intellectual Property for any other purpose, nor allow, aid or facilitate such use by any third party. Use must be limited to Authorised Users on devices that are controlled or approved by you.
You must not, without our prior written consent:
copy, in whole or in part, any of Our Intellectual Property;
reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of Our Intellectual Property to any third party; or
breach any intellectual property rights connected with the Platform, including (without limitation) altering or modifying any of Our Intellectual Property, causing any of Our Intellectual Property to be framed or embedded in another website, or creating derivative works from any of Our Intellectual Property.
This clause will survive the termination or expiry of your Membership.
Your Data
You own all data, information or content (including the instructions, commands and questions you programme into the chatbot via your dashboard on the Platform or via any Third Party Services) you, your Authorised Users and your customers upload into the Platform (Your Data).
You grant us a limited licence to copy, transmit, store, backup and/or otherwise access or use Your Data to:
communicate with you (including to send you information we believe may be of interest to you);
supply the Platform to you and otherwise perform our obligations under these Terms;
diagnose problems with the Platform;
enhance and otherwise modify the Platform;
perform Analytics;
develop other services, provided we de-identify Your Data; and as reasonably required to perform our obligations under these Terms. You agree that you are solely responsible for all of Your Data that you, your Authorised Users and your customers make available on or through the Platform. You represent and warrant that:
you are either the sole and exclusive owner of Your Data or you have all rights, licences, consents and releases that are necessary to grant to us the rights in Your Data (as contemplated by these Terms); and
neither Your Data nor the posting, uploading, publication, submission or transmission of Your Data or our use of Your Data on, through or by means of our Platform will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You acknowledge and agree that we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Platform, in an aggregated and anonymised format (Analytics). You acknowledge and agree that we own all rights in the Analytics, and that we may use the Analytics for our own internal business purposes, provided that the Analytics do not contain any identifying information.
We do not endorse or approve, and are not responsible for, any of Your Data.
You acknowledge and agree that the performance of the Platform is reliant on the accuracy and completeness of Your Data, and the provision by you of Your Data that is inaccurate or incomplete may affect the use, output and operation of the Platform.
This clause will survive the termination or expiry of your Membership.
Warranties
You represent, warrant and agree that:
you will not use our Platform, including Our Intellectual Property, in any way that competes with our business;
there are no legal restrictions preventing you from entering into these Terms; and
all information and documentation that you provide to us in connection with these Terms is true, correct and complete.
Consumer Law
You agree and represent that you are entering into these Terms for the purpose of trade. The Parties agree that:
to the maximum extent permissible by law, the Consumer Guarantees Act 1993 does not apply to the introduction of Referrals or this Agreement; and
it is fair and reasonable that the Parties are bound by this clause.
This clause will survive the termination or expiry of your Membership.
Liability
To the maximum extent permitted by law, we are not liable for any Liability which arises as a result of or in connection with:
the Support Services;
Your Data;
the acts or omissions or you or your personnel;
your or your Authorised User’s use of the Platform or the chatbot; or any event outside of our control.
Despite anything to the contrary, to the maximum extent permitted by law:neither Party will be liable for Consequential Loss;
each Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party or any of that Party’s personnel (including a Party’s Authorised Users), including any failure by that Party to mitigate its losses; and
our aggregate liability for any Liability arising from or in connection with these Terms will be limited to the Fees paid by you in the 12 months immediately preceding the act, event or omission giving rise to the Liability (and where there has been less than 12 months of Fees paid, an amount equal to 12 months of Fees calculated on a pro rata basis having regard to the amount of Fees paid and the period of time).
This clause will survive the termination or expiry of your Membership.
Termination
Cancellation of Memberships: You may request to cancel your Membership at any time by notifying us via email or via ‘cancel my membership’ feature in your Account. Your cancellation will take effect from the end of the current Billing Cycle.
A Membership will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
the Defaulting Party is unable to pay its debts as they fall due.
Should we suspect that you are in breach of these Terms, we may suspend your access to the Platform while we investigate the suspected breach.
Upon expiry or termination of your Membership:
we will remove your access to the Platform and your Account will be deleted; and
where we terminate your Membership as a result of your unrectified default, you also agree to pay us our reasonable additional costs directly arising from such termination, including recovery fees.
Where termination is due to our breach of these Terms, we agree to refund you for any prepaid unused Fees on a pro-rata basis.
Termination of a Membership will not affect any rights or liabilities that a Party has accrued under these Terms.
This clause will survive the termination or expiry of your Membership.
Notice Regarding Apple
To the extent that you are using or accessing our Platform on an iOS device, you further acknowledge and agree to the terms of this clause. You acknowledge that these Terms are between you and us only, not with Apple Inc. (Apple), and Apple is not responsible for the Platform and any content available on the Platform.
Apple has no obligation to furnish you with any maintenance and support services with respect to our Platform.
If our mobile application fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price of the mobile application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the mobile application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility.
Apple is not responsible for addressing any claims by you or any third party relating to our mobile application or your use of our mobile application, including but not limited to: (1) product liability claims; (2) any claim that our mobile application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
Apple is not responsible for the investigation, defence, settlement and discharge of any third-party claim that our mobile application infringes that third party’s intellectual property rights.
You agree to comply with any applicable third-party terms when using our mobile application.
Apple and Apple subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.
You hereby represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
General
Assignment: Subject to the below clause, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.
Disputes: A Party may not commence court proceedings relating to a dispute without first meeting with the other Party to seek (in good faith) to resolve the dispute, failing which the Parties agree to engage a mediator to attempt to resolve the dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
Entire Terms: These Terms contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in these Terms, and these Terms supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter. Without limiting the previous sentence, the Parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the Parties are bound by this clause.
Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event, provided the Party seeking to rely on the benefit of this clause, as soon as reasonably practical, notifies the other party in writing about the Force Majeure Event and the extent to which it is unable to perform its obligations and uses reasonable endeavours to minimize the duration and adverse consequences of the Force Majeure Event.
Governing law: These Terms are governed by the laws of New Zealand. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New Zealand and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided in your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
Publicity: With your prior written consent, you agree that we may advertise or publicise the fact that you are a user of our Platform, including on our website or in our promotional material.
Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
Third party sites: The Platform may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations with respect to the suitability of those websites. If you purchase goods or services from a third party website linked from the Platform, such third party provides the goods and services to you, not us. We may receive a benefit (which may include a referral fee or a commission) should you visit certain third-party websites via a link on the Platform (Affiliate Link) or for featuring certain products or services on the Platform. We will make it clear by notice to you which (if any) products or services we receive a benefit to feature on the Platform, or which (if any) third party links are Affiliate Links.
Definitions
Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise; any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into these Terms as the probable results of the relevant breach, act or omission, and/or, any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data. The Parties agree that your obligation to pay us the Fee under these Terms will not constitute “Consequential Loss”.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control.
Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.
For any questions or notices, please contact us at:
Unicorn Hatch Limited NZCN 8491168
Address: Level 8/139 Quay Street,
Auckland Central,
Auckland 1010
Email: info@heyskye.com
Last update: 22 April 2023
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