Mango End User Agreement
Attention
The following terms and conditions (the "Agreement") governing your use of Software provided by Mango Ltd. (“Mango”) will be legally binding upon you by clicking the "Create Account" button displayed as part of the sign-up process.
In completing the sign-up process you agree to make all necessary payments on time and accept that any late payments will result in the suspension of access to the Software and Website and will incur interest on any outstanding amounts as defined below.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms "you" or "your" shall refer to such entity. If you do not have such authority or if you do not agree with these terms and conditions, you must not complete the sign-up process and may not use the software or services provided by Mango.
Terms and Conditions
1) Use of Software
Mango grants You, the end-user, the right to access and use the Software via the Website for the Term in accordance with any instructions for use provided by Mango. This right is non-exclusive and non-transferable and limited by these Terms and Conditions.
2) Changes to the Terms and Conditions
Mango reserves the right to update these Terms and Conditions at any time and your continued use of the Software after such changes constitutes agreement to the changes. Mango will make every effort to communicate these changes to You via email. These Terms and Conditions replace any previous version of terms or agreements issued by Mango, in their entirety.
3) Account Obligations
3a. Security: You are responsible for maintaining the security of your account details and password. You will immediately notify Mango of any unauthorised use of Your account or password or any other breach of security.
When accessing and using the Software, You must not:
(i) attempt to undermine the security or integrity of Mango’s computing systems or networks or, where the Software is hosted by a third party, that third party's computing systems and networks;
(ii) use, or misuse, the Software in any way which may impair the functionality of the Software or Website, or impair the ability of any other user to use the Software or Website;
(iii) attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Software is hosted;
(iv) transmit, or input into the Software, any files that may damage any other computing devices or software, content that may be offensive, or material or data in violation of any law (including data or other material protected by copyright or trade secrets which You do not have the right to use); and
(v) modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the Software or the Website except as is strictly necessary for normal operation.
3b. Payment obligations: You agree to pay the current published Fee for the use of the Software. The first Fee will be charged on the day your Mango account is activated (“Software Start Date”). Fees will continue until this Licence expires or is terminated in accordance with clause 4. If you fail to pay the Fee by the due date Your access and use of the Software and Website may be suspended and You will be charged interest on the amount outstanding at the rate of 3% above your country’s official cash lending rate from the due date until payment is made. Your Fee may increase if Mango upgrades, improves or modifies the Software in which case Mango will provide You with notice of the increase 30 days prior to the date upon which the increase will take effect. If You wish to terminate this Licence as a result of the increase you must provide email notice of this prior to the date that the increase takes effect.
3c. Data storage: This agreement gives you 300mb free storage of Data including any electronic files that You upload into the Software. Once you exceed this amount you will be charged an additional 5% of your Fee per 250mb per month.
3d. General obligations: You must only use the Software and Website for Your own lawful internal business purposes, in accordance with these Terms and Conditions.
3e. Communication Conditions: If You use any communication tools available through the Website (such as any forum, chat room or message centre), You agree only to use such communication tools for lawful and legitimate purposes. You must not post or disseminate any material unrelated to the use of the Software including (but not limited to): offers of goods or services for sale, files that may damage other computing devices or software, content that may be offensive to any of our other users, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use). When You make any communication on the Website, You represent that You own the content of the communication. Mango is under no obligation to ensure that the communication on the Website is legitimate or is related only to the use of the Software. As with any other web-based forum, You must exercise caution when using the communication tools available on the Website. Mango reserves the right to remove any communication at any time.
3f. Indemnity. You must indemnify Mango against all direct or indirect claims, costs (including all legal and enforcement costs on a solicitor and own client basis), damage and loss arising from Your breach of any of these terms or any obligation You may have to Mango including, but not limited to, any costs relating to the recovery of any Fees that have not been paid by You, or any act, matter or thing done, permitted or omitted to be done by You in relation to the Software or the Website.
4) Termination
4a. Thirty day return policy: You may terminate this Licence by serving notice on Mango within 30 days of being granted access to the Software by Mango for the first time.
4b. No-fault termination: This Licence will continue for the period covered by the Fee paid. This Licence will automatically continue for the same period unless either party terminates this Licence by giving notice to the other party at least 21 days before the end of the relevant payment period.
4c. Breaches of Terms and Conditions: If
(i) You breach any of these Terms and Conditions and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
(ii) You breach any of these Terms and Conditions and the breach is not capable of being remedied (which includes (without limitation) any payment more than 30 days overdue); or
(iii) the paying subscriber goes into liquidation or has a receiver or manager appointed over any of its assets or becomes insolvent, or makes any arrangement with its creditors, is being wound up or being declared bankrupt, or becomes subject to any similar insolvency event in any jurisdiction,
Mango may take any or all of the following actions, at its discretion:
(iv) Terminate these Terms and Conditions and Your use of the Software and the Website;
(v) Suspend for any definite or indefinite period of time, Your use of the Software and the Website;
(vi) Take either of the actions in sub-clause 4 (c) (iv) and (v) in respect of any other persons in Your organisation or who have access to Your information or that of Your organisation.
4d. Accrued Rights: Termination of this Licence is without prejudice to the rights and obligations of the parties accrued up to and including the date of termination. On expiry or termination of this Licence You will:
(vii) remain liable for and must pay the Fees, any charges and amounts which become due for payment or have accrued up to and after termination or expiry; and
(viii) immediately cease to use the Software and the Website and You will have no further rights to use the Software or the Website.
4e. Expiry or termination: Clauses 3a, 4, 5, 6, 7, 8 and 10 survive the expiry or termination of these Terms and Conditions.
5) Confidentiality and Privacy
5a. Confidentiality: Unless the relevant party has the prior written consent of the other or unless required to do so by law:
(i) Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with this Licence. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms and Conditions.
(ii) Each party's obligations under this clause will survive termination of this Licence.
(ii) Each party's obligations under this clause will survive termination of this Licence.
1. is or becomes public knowledge other than by a breach of this clause;
2. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
3. is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
4. is independently developed without access to the Confidential Information.
5b. Privacy: Mango maintains a Privacy Policy that sets out the parties’ obligations in respect of data. You authorise Mango to collect and hold personal and credit information about You, Mango may:
(i) use this information for billing purposes, debt collection or any related purpose, or for providing You with information about Mango’s products and services;
(ii) disclose the personal and credit information to anyone else for the purposes set out in clause 5b(i)
You must notify Mango of any changes in circumstances that may affect the accuracy of any personal or credit information that Mango may have collected about You.
If you are a natural person, You may access and request correction of any personal or credit information that Mango may have collected about You as an identifiable individual, subject to the restrictions in the Privacy Act 1993 and any privacy code.
6) Intellectual Property
6a. General: Title to, and all Intellectual Property Rights in the Software, the Website and any documentation, methodologies or other proprietary information relating to the Software remain the property of Mango (or its licensors).
6b. Data: Title to, and all Intellectual Property Rights in, the Data remain Your property. Mango adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime. However, Mango does not make any guarantees that there will be no loss of data. Mango expressly excludes any liability for any loss (including without limitation loss of profits, loss of business) as a result of loss of data no matter how it was caused.
7) Warranties and Acknowledgements
7a. Acknowledgement: You acknowledge that:
i) You are authorised to use the Software and the Website and to access the information that You access using the Software and the Website (whether that information is Your own or that of anyone else).
ii) If You are using the Software and accessing the Website on behalf of or for the benefit of an organisation (whether a body corporate or not) then Mango will assume that You have the right to do so and that organisation will be liable for Your actions or omissions, including any breach of these Terms and Conditions.
iii) The provision of, access to, and use of, the Software is on an "as is, where is" basis and at Your own risk.
iv) Mango does not warrant that the use of the Software will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Software, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Software. Mango is not in any way responsible for any such interference or prevention of Your access or use of the Software.
v) Mango is not Your Compliance or Risk Manager and use of the Software should not substitute professional advice. If You have any questions, please contact a consultant.
vi) It is Your sole responsibility to determine that the Software meets the needs of Your business.
7b. No warranties: Mango gives no warranty regarding the Software. Without limiting the foregoing, Mango does not warrant that the Software will meet Your requirements or that it will be suitable for Your purposes. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of accuracy, security, availability, satisfactory quality, merchantability, fitness for purpose, title and non-infringement.
7c. Consumer guarantees: You warrant and represent that You are acquiring the right to access and use the Software and agreeing to these Terms and Conditions for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Software, the Website or these Terms and Conditions.
8) Limitation of Liability
8a. To the maximum extent permitted by law, Mango excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any direct or indirect loss (including loss of data, profits and savings) or damage resulting, directly or indirectly, from the use of, or reliance on, the Software and/or the Website.
8b. If You suffer loss or damage as a result of Mango's negligence or failure to comply with these Terms and Conditions, any claim by You against Mango arising from Mango's negligence or failure will be limited in respect of any one incident, or series of connected incidents to the Fees paid by You in the previous 12 months.
8c. If You are not satisfied with the Software, Your sole and exclusive remedy is to terminate these Terms and Conditions.
9) Help Desk
9a. Technical Problems: In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Your local Mango partner or Mango. If You still need technical help, please check the support provided online by Mango.
9b. Service availability: Whilst Mango intends that the Software should be available 24 hours a day, seven days a week; it is possible that on occasion it may be unavailable to permit maintenance or other development activity to take place. If for any reason Mango has to interrupt the Software for longer periods than Mango would normally expect, we will use reasonable endeavours to publish in advance details of such activity on the Website.
10) General
10a. Entire agreement: These Terms and Conditions, [together with the Mango Privacy Policy], supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Mango relating to the Software and the other matters dealt with in these Terms and Conditions.
10b. Waiver: If either party waives any breach of these Terms and Conditions, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
10c. Delays: Neither party will be liable for any delay or failure in performance of its obligations under these Terms and Conditions if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
10d. Governing law and jurisdiction: New Zealand law governs these Terms and Conditions and You submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with these Terms and Conditions, without reference to any conflicts of laws.
10e. Severability: If any part or provision of these Terms and Conditions is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Licence will be binding on the parties.
10f. Notices: Any notice given under these Terms and Conditions by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Mango must be sent to Mango Ltd, PO Box 27226, Christchurch, New Zealand. Notices to You will be sent to the email address which You provided when setting up Your access to the Software.
10g. Rights of Third Parties: A person who is not a party to these Terms and Conditions has no right to benefit under or to enforce any of these Terms and Conditions.
10h. Assignment: You may not assign this Licence or any rights granted hereunder without the prior written consent of Mango.
11) Definitions
"Confidential Information" includes all information exchanged between the parties to this agreement. This includes information exchanged via the written word, electronically or orally and via the Software itself.
"Data" means any electronic files that You upload and any data that You input into the Software.
"Fee" means the monthly fee (excluding any taxes and duties) payable by You as outlined in the published schedule of fees.
"Intellectual Property Right" means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
"Licence" means the Licence granted by Mango to You pursuant to these Terms and Conditions for access and use of the Software.
"Software" means the Mango software available (as may be changed or updated from time to time by Mango) via the Website and any know how, underlying technical infrastructure and technical information (and any amendments to the same) necessary for the use of the Software and/or Website whatsoever provided by Mango to you from time to time.
"Term" means 30 days commencing on and from the date that You begin using the Software and ending on the date on which this Licence expires or is terminated by either party in accordance with these Terms and Conditions, whichever is the earlier.
"Terms and Conditions" means these terms and conditions and any amendments, variations and updates, replacements to the same from time to time.
"Website" means the Internet site at the domain www.mangolive.com/system or any other site operated by Mango.
"You" and “Your” means you and any of your employees, consultants, representatives and agents.
