Terms of Service

1 Definitions

"Service" means the online inventory management booking and management services made available (as may be changed or updated periodically by Wellysoft Limited) via the Website.

"Website" means the Internet site at the domain www.simsam.app or any other site operated by Wellysoft Limited.

"SimSam" means the software for sample inventory management developed and owned by Wellysoft Limited which is a registered company in New Zealand.

"Invited User" means any person or entity, other than the Subscriber, that, on occasion, uses the Service with the consent of the Subscriber. This includes staff members that are attached to accounts.

"Subscriber" means the person who registers to use the Service, and, context permitting, includes any entity using the service on the Subscriber's behalf.

"You" means the Subscriber, and in certain circumstances, an Invited User. Here, the use of 'your' is synonymous.

"Agreement" means these Terms of Service.

"Access Fee" means the monthly fee (excluding any taxes) payable by you in accordance with the fee schedule set out on the Website (which, with adequate notice to you, Wellysoft Limited may change from time to time).

"Confidential Information" includes all information exchanged between the parties to this Agreement, whether written, electronic or oral. This includes the Service but does not include information which is, or becomes, publicly available other than through unauthorised release by any party to this agreement.

"Data" means any data inputted by you or with your authority into the Website.

"Intellectual Property Right" means any patent, trade mark, service mark, copyright, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.

2 Use of software

Wellysoft Limited permits you the right to access and use the Service via the Website with the particular user roles available to you in accordance with your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable laws:

• The Subscriber determines who is an Invited User and what level of user role access to the relevant organisation and Service that Invited User has;
• The Subscriber is responsible for all Invited Users' use of the Service;
• The Subscriber controls each Invited User's level of access to the relevant organisation and Service at all times and can revoke or change an Invited User's access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be;
• If there is any dispute between a Subscriber and an Invited User regarding access to any organisation or Service, the Subscriber shall decide the level of access to the relevant Data or Service by the Invited User.

3 Your obligations

Payment obligations

An invoice for the Access Fee will be sent monthly, commencing one month from the date you opened a SimSam account. All invoices will include the Access Fee for the preceding one month period of use. Wellysoft Limited will continue invoicing you monthly until this Agreement is terminated in accordance with the Termination section.

All SimSam invoices will be sent to you, or the master account holder (Retail Store owner), or to a Billing Contact whose details are provided by you. You must pay or arrange payment of all amounts specified in any invoice by the due date for payment and are payable within 7 days of the invoice date. You are responsible for payment of all taxes and duties in addition to the Access Fee.

Pricing

Pricing is based on the amount quoted to you by Wellysoft Limited or the fees that are displayed on the Website, and are based on a per site basis, excluding GST. Without prejudice to any other rights that Wellysoft Limited may have under these Terms or at law, Wellysoft Limited reserves the right to render invoices for the full Access Fees due or suspend or terminate your use of the Service in respect of any or all of Your Organisations in the event that any invoices for those Access Fees are not paid in full by the due date for payment.

General obligations

Use of the Service and Website is limited to Your own lawful internal business purposes, in accordance with these Terms. You may use the Service and Website on behalf of others or in order to provide services to others but if You do so you must ensure that You are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to You.

Access conditions

• All usernames and passwords required to access the Service are to be kept secure and confidential. You must immediately notify SimSam of any unauthorised use of your passwords or any other breach of security. SimSam will reset your password and you must take all other actions that Wellysoft reasonably deems necessary to maintain or enhance the security of SimSam's computing systems and networks and your access to the Services.
• As a condition of these Terms, when accessing and using the Services, You must:
  • not attempt to undermine the security or integrity of SimSam's computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
  • not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
  • not attempt to gain unauthorised access to any materials other than those to which you have been granted exclusive permission to access or to the computer system on which the Services are hosted;
  • not input any files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data protected by copyright, of which you are not granted use); and
  • not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services.

Mobile and other devices

We currently provide our mobile services for free, but please be aware that your carrier's normal rates and fees, such as text messaging and data charges, will still apply.

In the event you change your phone number, or discontinue your existing one, you will amend this on Clockit within 48 hours to ensure that your messages are not sent to those not permitted to see them.

Usage limitations

Use of the Service may be subject to limitations, including, but not limited to, monthly check out volumes and the number of users per account. Any such limitations will be advised.

Third party web sites, content, products and services

The Site may provide links to Web sites and access to Content, products and services of third parties, including users, advertisers, affiliates and sponsors of the Site. Wellysoft Limited and SimSam are not responsible for third party Content provided on or through the Site and you bear all risks associated with the access and use of such Web sites and third party Content, products and services.

Communication conditions

Any use of communication tools available through the Website (such as any forum, chat room or message centre), must be used for lawful and legitimate purposes. No communication tool is to be used for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, corrupted files, potentially harmful to any other computing devices, content that may be offensive to any other users of the Services or the Website, 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 entering into any communication on the Website, you must make it expressly clear that you are permitted to make such communication. Wellysoft Limited & SimSam are under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Services. Wellysoft Limited reserves the right to remove any communication at any time in its sole discretion.

Indemnity

You indemnify Wellysoft Limited against: all claims, costs, damage and loss arising from your breach of any of these Terms or any obligation you may have to Wellysoft Limited, including (but not limited to) any costs relating to the recovery of any Access Fees that are due but have not been paid by You.

Confidentiality and privacy

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 these Terms. 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.

Privacy

Wellysoft Limited maintains a privacy policy that sets out the parties' obligations in respect to personal information. It is recommended that you read this at simsam.app/privacy-policy and you will be taken to have accepted that policy when you accept these Terms.

Intellectual property

General

Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of Wellysoft Limited (or its licensors).

Ownership of Data

Title to, and all Intellectual Property Rights in, the Data remain Your property. However, your access to the Data is contingent on you fulfilling all payment requirements due to Wellysoft Limited. You grant Wellysoft Limited a licence to use, copy, transmit, store, and back-up your information and Data for the purposes of enabling you to access and use the Services and for any other purpose related to provision of services to You.

Use of anonymised and aggregated Data

You also grant Wellysoft Limited the right to use Your Data in an anonymised and aggregated form for the purpose of generating statistical insights, analytics, and industry trends. This aggregated data may be shared with third parties, including enterprise users within Your industry. Wellysoft Limited ensures that such aggregated data will not contain any information that can be used to identify You or Your customers personally or commercially.

Backup of Data

You must maintain copies of all Data inputted into the Service. Wellysoft Limited adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. Wellysoft Limited expressly excludes liability for any loss of Data no matter how caused.

Third-party applications and your Data

If you enable third-party applications for use in conjunction with the Services, You acknowledge that Wellysoft Limited may allow the providers of those third-party applications to access your Data as required for the interoperation of such third-party applications with the Services. Wellysoft Limited shall not be responsible for any disclosure, modification or deletion of your Data resulting from any such access by third-party application providers.

Warranties and acknowledgements

Authority

You warrant that where you have registered to use the Service on behalf of another person, you have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service you bind the person, on whose behalf you act, to the performance of any and all obligations that you become subject to by virtue of these Terms, without limiting your own personal obligations under these Terms.

Acknowledgement

You acknowledge that:

• You are authorised to use the Services and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person you have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own or that of anyone else).
• Wellysoft Limited has no responsibility to any person other than you and nothing in this Agreement is directly for the benefit of any person other than You. If You use the Services or access the Website on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:
  • You are responsible for ensuring that you have the right to do so;
  • You are responsible for authorising any person who is given access to information or Data, and you agree that Wellysoft Limited has no obligation to provide any person access to such information or Data without your authorisation and may refer any requests for information to you to address; and
  • You will indemnify Wellysoft Limited against any claims or loss relating to:
    • Wellysoft Limited's refusal to provide any person access to your information or Data in accordance with these Terms,
    • Wellysoft Limited making available information or Data to any person with your authorisation.
• The provision of, access to, and use of, the Services is on an "as is" basis and that responsibility for this lies entirely with you.
• Wellysoft Limited does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, 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 Services. Wellysoft Limited is in no way responsible for any such interruptions.
• It is your sole responsibility to determine that the Services meet the needs of your business and are suitable for the purposes for which they are used.
• You remain solely responsible for complying with all applicable laws. It is your responsibility to check that storage of and access to your Data via the Software and the Website are in accordance with laws applicable to you (including any laws requiring you to retain records).

No warranties

Wellysoft Limited gives no warranty about the Services. Without limiting the foregoing, Wellysoft Limited does not warrant that the Services will meet your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.

Consumer guarantees

You warrant and represent that You are acquiring the right to access and use the Services 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 Services, the Website or these Terms.

Limitation of liability

To the maximum extent permitted by law, Wellysoft Limited excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.

If You suffer loss or damage as a result of Wellysoft Limited's negligence or failure to comply with these Terms, any claim by You against Wellysoft Limited arising from Wellysoft Limited's negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Access Fees paid by You in the previous 12 months.

If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with the Termination section.

Termination

Trial policy

When first signing up to access the Services you can evaluate the Services under the defined trial usage conditions, with no obligation to continue to use the Services. If, following the trial period, you choose to continue using the Services, You will be billed from the day you first added your billing details into the Services. If you choose to discontinue usage upon conclusion of your trial, you may delete your account by emailing support@simsam.app from the email address corresponding to your account.

Prepaid subscriptions

Wellysoft Limited will not provide any refund for any remaining prepaid period for a prepaid Access Fee subscription.

No-fault termination

These terms will be relevant for the whole of the period covered by the Access fee. At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Access Fee when due, unless either party terminates these Terms by giving notice to the other party at least 30 days before the end of the relevant payment period. If you terminate these Terms You shall be liable to pay all relevant Access Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms.

Breach

If you:

• breach any of these Terms (including, without limitation, by non-payment of any Access Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
• breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any breach of the Access conditions or any payment of Access Fees that are more than 30 days overdue); or
• You or your business become insolvent or your business goes into liquidation or has a receiver or manager appointed of any of its assets or if you become insolvent, or make any arrangement with your creditors, or become subject to any similar insolvency event in any jurisdiction,

Wellysoft Limited may take any or all of the following actions, at its sole discretion:

• Terminate this Agreement and all the clauses that lie within it;
• Suspend your use of the Services and the Website for the amount of time that is deemed necessary;
• Suspend or terminate access to all or any Data.
• Take any of the three actions above in respect of any or all other persons whom you have authorised to have access to Your information or Data.

For the avoidance of doubt, if payment of any invoice for Access Fees due in relation to any of your Billing Contacts, Billing Plans or any of your Organisations is not made in full by the relevant due date, Wellysoft Limited may: suspend or terminate your use of the Service, the authority for all or any of your Organisations to use the Service, or Your rights of access to all or any Data.

Accrued rights

Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement you will:

• remain liable for any accrued charges and amounts which become due for payment before or after termination; and
• immediately cease to use the Services and the Website.

Expiry or termination

Any provision of these Terms which by its nature is intended to survive expiry or termination (including those relating to payment obligations, indemnity, confidentiality and privacy, intellectual property, warranties and acknowledgements, limitation of liability, accrued rights and the general provisions) survives the expiry or termination of these Terms.

Help desk

Technical problems

In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting Wellysoft Limited or SimSam. Some technical problems are unavoidable, and, upon notification from you to support@simsam.app, Wellysoft Limited & SimSam will endeavour to resolve any interruptions in an effective and timely manner.

Service availability

Whilst it is Wellysoft Limited & SimSam's intention that Services are available 24 hours a day, seven days a week, it is possible, on occasion, that the Services or Website may be unavailable to permit maintenance or other development activity to take place.

If for any reason Wellysoft Limited has to interrupt the Services for longer periods than Wellysoft Limited would normally expect, Wellysoft Limited will use reasonable endeavours to publish in advance details of such activity on the Website.

General

Entire agreement

These Terms, together with the Wellysoft Limited Privacy Policy and the terms of any other notices or instructions given to You under these Terms, supplant and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between you and Wellysoft Limited relating to the Services and the other matters dealt with in these Terms.

Waiver

If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.

Delays

Neither party will be liable for any delay or failure in performance of its obligations under these Terms 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.

No assignment

You may not assign or transfer any rights to any other person without Wellysoft Limited's prior written consent.

Governing law and jurisdiction

If the information or Data You are accessing using the Services and the Website is solely that of a person who is a tax resident in New Zealand at the time that You accept these terms then New Zealand law governs this Agreement and You submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement.

Severability

If any part or provision of these Terms 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 Agreement will be binding on the parties.

Notices

Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Wellysoft Limited must be sent to info@wellysoft.com or any other email addresses agreed by you and Wellysoft Limited. Notices to you will be sent to the email address which you provided when setting up your access to the Service.

Rights of third parties

Any party not covered by these Terms has no right to benefit under or to enforce any term of these Terms.