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 "Submit" button displayed as part of the sign-up process.

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.

These terms were last updated on 11-August-2021.

The changes from the previous edition are:

Amended 0) Definitions:
- Added API definition
- Added API Fees definition
- Added End-User Data definition
- Amended Fee definition
- Amended Fee Increases definition
Amended 3c Data storage to increase storage limit to 50GB
Added 3g Data Warranty
Added 3h Data Undertaking
Amended 10c Support activities not included in your Mango subscription
Amended 11i Browser Support

Terms and Conditions

0) Definitions

"API" means an application programming interface used to transfer End-User Data between You and the Software.

“API Fees” means a fee (excluding any taxes and duties) payable by You for the use of the API and the API support costs as outlined in the published schedule of fees.

"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.

"End-User Data" means data relating to You and Your customers. This could include Personal Information.

"Fee" means the monthly fee (excluding any taxes and duties) payable by You based on the total number of Your employees as outlined in the published schedule of fees. This also includes the number of Your contractors that will access to your account (that have a username and password).

“Fee Increases” means an increase to Your monthly fee once the total number of Your employees (plus Your contractor users) exceeds the fee band as published in the schedule or from an fee review. Fee reviews are capped at 5% increase.

"GDPR" means the EU General Data Protection Regulation 2016/679.

"Intellectual Property Right" means any patent, trademark, 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.

"Mango Partner" is the person or organisation that collects fees, conducts support and implements the Software.

"Personal information" means any information about an identified or identifiable natural person (whether this is you or your employees or customers) that is processed by us as a result of, or in connection with, the provision of the services under this Agreement; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

"Processing" means any operation or set of operations which is performed on Personal Information or on sets of Personal Information, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;

"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.

“Software Start Date” means the day your license is activated.

“Software End Date” means the day of receipt of the termination notification.

“Subprocessor" means a third party Mango has engaged and appointed to Process Personal Information.

"Term" means one month commencing on and from the Software Start Date 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.

"You" and “Your” means you and any of your employees, consultants, representatives and agents.

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 in which case Mango will provide You with notice of the change on the day the change will take effect.

3) Account Obligations

3a. Security:

You are responsible for maintaining the security of your account details and passwords. 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:

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;
use, or misuse, the Software in any way which may impair the functionality of the Software, or impair the ability of any other user to use the Software;
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;
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
modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the Software except as is strictly necessary for normal operation.

3b. Payment obligations:

You agree to pay the Mango Partner the current published Fee and any fee increases for the use of the Software plus any bank fees and charges associated with foreign exchange payments and electronic processing.
The first Fee will be charged on the 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 may be suspended
Your final fee will be charged on the day of the Termination with no refunds.

3c. Data storage:

This agreement gives you 50Gb storage of Data including any electronic files that You upload into the Software. Once you exceed this amount you will be charged an additional 10% of your Fee per 50Gb per month.

3d. General obligations:

You must only use the Software for Your own lawful internal business purposes, in accordance with these Terms and Conditions. Your use of the Software is limited to one legal entity unless otherwise agreed in writing by Mango.

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.

3g. Data warranty:

You warrant that you have collected, stored and otherwise dealt with all of the End-User Data which has been disclosed, or may be disclosed, to Mango via the API in accordance with:

(i) All applicable legal requirements which may include (but are not necessarily limited to):

(1) the Privacy Act 1993 (NZ);
(2) the Privacy Act 2020 (NZ);
(3) the Unsolicited Electronic Messages Act 2007 (NZ);
(4) the Privacy Act 1988 (Australia);
(5) the Spam Act 2003 (Australia);
(6) Protection of Personal Information Act 4 of 2013 (South Africa);
(7) the Data Protection Act 2018 (UK);
(8) the Privacy and Electronic Communications (EC Directive) Regulations 2003;
(9) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation); and
(10) any applicable code issued under the legislation listed in clauses (1) to (9); and

(ii) Mango's privacy policy as at the date of this Agreement.

3h. Data undertaking:

You undertake that you will:

(i) Continue to collect, store and otherwise deal with all of the End-User Data which has been disclosed, or may be disclosed, to Mango via the API in accordance with:

(1) all applicable legal requirements which may include (but are not necessarily limited to) the legislation and codes referred to in clauses 3g(i) (1) to (9); and
(2) Mango's then-current privacy policy as may be disclosed to the End User from time to time; and

(ii) Immediately:

(1) Advise Mango if you become aware of a data or privacy breach in relation to the End User Data; and
(2) Comply with Mango's directions in relation to the End User Data should Mango require you to take steps to secure the End User Data or comply with privacy or data protection regulation.

4) Termination

4a. Termination by You:

You may terminate this Licence in writing. The day of receipt of termination notification will be the Software End Date. Access to Your Data will be made available for one month from the Software End Date.

4b. Termination by Mango:

If Mango is forced to terminate this Agreement (other than by reason of your breach) You will have access to Your Data for one month from the Software End Date.

4c. You agree and acknowledge that Mango has no obligation to retain your Data beyond one month from the Software End Date and may delete such data one month and one day after the Software End Date.

4d. Breaches of Terms and Conditions: If

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;
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 one month overdue); or
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:

Terminate these Terms and Conditions and Your use of the Software;
Suspend for any definite or indefinite period of time, Your use of the Software;

4e. 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:

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
immediately cease to use the Software and You will have no further rights to use the Software.

4f. 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:

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.
Each party's obligations under this clause will survive the termination of this Licence.
The provisions of clauses 5(a)i and 5(a)ii shall not apply to any information which:

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 Confidential Information.

We have procedures to notify relevant persons if there is an information security breach.

5b. Privacy:

In addition to the matters set out in this clause 5b, Mango maintains a Privacy Policy that describes the type of information that we will collect about you, explains how we handle your personal information, who we can share your information with, the ways in which you can contact us about the personal information that we hold about you and your rights to the personal information that we hold about you. You can find our privacy policy here.

Mango does not require you to disclose any Personal Information. However, if you do disclose Personal Information, you authorise Mango to collect and hold personal and credit information about You. Mango may:

Use this information for billing purposes, debt collection or any related purpose, or for providing You with information about Mango’s products and services;
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.

5c. Obligations when Processing Personal Information

For the purpose of relevant data protection or privacy laws, you are the controller and we are the processor. You retain control of the Personal Information and you remain responsible for your compliance obligations under the applicable data protection or privacy laws, including providing any required notices and obtaining any required consents, and for the processing instructions you give to us.

Where Mango is Processing Personal Information when providing services under this Agreement it will comply with the following obligations:

Mango will Process Personal Information only on documented instructions from you, including with regard to transfers of Personal Information to a third country or an international organisation unless required to do so by any law to which Mango is subject; in such a case, Mango will inform you of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest. You instruct us to Process Personal Information including transferring Personal Information to a Virtual Server owned by Microsoft Azure in Sydney, Australia with backups and disaster recovery in Melbourne, Australia.
Mango will engage and appoint a third party to Process Personal Information (Subprocessor) and will disclose to that Subprocessor Personal Information, with your prior specific or general written authorisation. You authorise us to disclose your Personal Information to Subprocessors and to engage Subprocessors to Process your Personal Information including those who are outside of New Zealand. Mango will inform you of any intended changes concerning the addition or replacement of a Subprocessor. We will ensure that:
- we provide appropriate safeguards in relation to the transfer of Personal Information to Subprocessors including those who are outside of New Zealand;
- the person in respect of whom Personal Information is Processed (Data Subject) has enforceable rights and effective legal remedies;
- we comply with our obligations under all relevant data protection or privacy laws by providing an adequate level of protection to any Personal Information that is transferred; and
- we comply with reasonable instructions notified to us in advance by you with respect to the processing of the Personal
Mango will take reasonable steps to ensure that any employee or contractor of any Subprocessor who may have access to Personal Information:
- are reliable, ensuring in each case access is strictly limited to those individuals who need to know or have access to the relevant Personal Information, as strictly necessary for the purposes of this Agreement; and
- comply with all applicable laws in the context of that individual's duty to the Subprocessor, ensuring that all such individuals are subject to confidentiality undertakings or are under an appropriate statutory obligation of confidentiality.
Mango will ensure that persons authorised to Process your Personal Information have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the Processing and the data and the risk of varying likelihood and severity for the rights and freedoms of natural persons, Mango will implement appropriate technical and organisational measures to ensure a level of security appropriate to the risks that are presented by Processing, in particular from a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised or unlawful disclosure of, Processing or access to Personal Information transmitted, stored or otherwise Processed (Data Breach). In assessing the appropriate level of security, Mango will take into account in particular the risks that are presented by Processing. The measures implemented will include as appropriate the measures referred to in Article 32(1) of the GDPR (and may include, where appropriate, encrypting Personal Information, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Information can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted).
Where Mango transfers Personal Information to a Subprocessor for Processing activities on your behalf (such as for storage in the Cloud), Mango will have a contract in place between Mango and the Subprocessor that imposes the same obligations on the Subprocessor as the obligations on Mango set out in this clause 5c and, in particular, providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the Processing will meet the requirements set out in this clause 5c and relevant data protection law.
Mango will, taking into account the nature of the Processing, assist you by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligations to respond to requests for exercising the rights of the Data Subject as set out in the GDPR and, to the extent applicable, any other data protection or privacy laws. Mango will:
- promptly notify you if it receives a request from a Data Subject under any data protection law in respect of Personal Information Processed by us or a Subprocessor; and
- ensure that we do not respond to that request except on your documented instructions or as required by applicable laws to which we are subject, in which case, we will to the extent permitted by the applicable laws inform you of that legal requirement before we or a Subprocessor responds to that request.
On Mango becoming aware of a Data Breach, we will notify you without undue delay. Mango will provide you with sufficient information to allow you to meet any obligations to report or inform Data Subjects of the breach. Mango will co-operate with you and take reasonable commercial steps as are directed by you to assist in the investigation, mitigation and remediation of each such breach.
Mango will, taking into account the nature of Processing and the information available to Mango, assist you in ensuring compliance with your obligations under Articles 32 to 36 of the GDPR. In particular, Mango will provide reasonable assistance to you with any data protection impact assessments, and prior consultations with competent data privacy authorities, which you reasonably consider to be required by Article 35 or 36 of the GDPR or other relevant data protection law, in relation to the Processing of Personal Information by, and taking into account the nature of the Processing and information available, to a Subprocessor.
Mango will delete or return all Personal Information to you within one month after we stop providing services to you that involves Processing of Personal Information, and we will delete and procure others to delete existing copies unless any law requires us to store the Personal Information and we keep specific information to evidence our contractual relationship with you. We will provide you with an email that we have complied with this obligation after we stop providing services to you that involves the Processing of Personal Information.
Mango will maintain complete and accurate records and information, and make available to you on request all such records and information necessary, to demonstrate compliance with the obligations set out in this clause 5c and will allow for and contribute to audits, including inspections, conducted by you or an auditor mandated by you in relation to the Processing of Personal Information by us or a Subprocessor. We will inform you if, in our opinion, an instruction infringes all relevant data protection or privacy laws.
Mango's obligations as set out in this clause 5c will remain in full force and effect so long as we retain any Personal Information under this Agreement in our possession or control. Any obligation in this clause 5c that expressly or by implication should come into or continue in force on or after the termination of this Agreement in order to protect Personal Information, will remain in full force and effect.

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 backup 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. Mango reserves the right to charge You for the retrieval of deleted data.

7) Warranties and Acknowledgements

7a. Acknowledgement:

You acknowledge that:

You are authorised to use the Software and to access the information that You access using the Software (whether that information is Your own or that of anyone else).
If You are using the Software 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.
The provision of, access to, and use of, the Software is on an "as is, where is" basis and at Your own risk.
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.
Mango is not Your Compliance or Risk Manager and the use of the Software should not substitute professional advice. If You have any questions, please contact a consultant.
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 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.

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) 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) Help Desk

10a. You authorise Mango and a Mango Partner to access your license for the purposes of implementation, support, training, bug fixing, testing and other activities associated with the support of the Software.

10b. Mango and Mango Partners will provide support as part of your Mango subscription.

10c. Support activities not included in your Mango subscription:

Implementation
API implementation and API support
Refresher training for staff
Training new Mango Administrator(s)
Training new Mango Coordinators
Uploading your data

11) General

11a. 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.

11b. 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.

11c. Delays:

Neither party will be liable for any delay or failure in the 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.

11d. 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.

11e. 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.

11f. 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 78217, Pegasus 7648, New Zealand, or to the email address: support@mangolive.com. Notices to You will be sent to the email address which You provided when setting up Your access to the Software.

11g. 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.

11h. Assignment:

You may not assign this Licence or any rights granted hereunder without the prior written consent of Mango.

11i. Browser Support

Mango only supports the latest versions of the following browsers:

Chrome - version 92 or later
Firefox - version 91 or later
Microsoft Edge - version 92 or later

You are responsible for using one of these browsers.