Smata Terms and Conditions – Smata App

Terms and Conditions

These terms and conditions (Terms) apply to all use of the Smata Application (the App) and/or the Smata website www.smata.co.nz (the Website) by you, or by any entity or organisation on whose behalf you use the App (together, Users and each a User). 

The Website and the App, and the services and functionality provided by them, are referred to collectively in these Terms as the Services.

1. Introduction

1.1. The Smata App is an education software application which allows teachers to observe, record and visualise learning data. The Smata App helps teachers focus on information for learning.

1.2. These terms apply to your use of the Smata App. By accessing (whether via the Mobile App or the Website), creating a user account, and/or otherwise using the Smata App, you agree to these terms. If you do not agree to these terms, you must not access or use the Smata App.

1.3. These terms were last updated on 27 July 2020.

2. Changes

2.1. Smata may change these terms at any time by updating them on the Mobile App and the Website. Unless stated otherwise, any change takes effect immediately. you are responsible for ensuring that you are familiar with the latest terms. By continuing to access and use the Smata App, you agree to be bound by the changed terms.

2.2. Smata may change the Fees payable by you from time to time by updating them on the Mobile App and the Website. The changed Fees will apply from the date indicated by Smata. If the Fee is increased and you do not want to pay the increased amount, you may cancel your user account in accordance with clause 13.

2.3. In these terms, unless the context otherwise requires:

2.3.1. the headings are for convenience only and have no legal effect;

2.3.2. the singular includes the plural and vice versa;

2.3.3. “including” and similar words do not imply any limit;

2.3.4. person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity; and

2.3.5. monetary references refer to New Zealand dollars.

3. Smata App

3.1. Subject to your paying the Fees when due and remaining in compliance with these terms, you may access and use the Smata App on a non-exclusive basis. You may only access and use the Smata App during the period for which you have paid the applicable Fees.

3.2. Smata will use its reasonable efforts to make the Smata App available during usual New Zealand business hours. The Smata App may be unavailable from time to time to permit maintenance or other development activity to take place. Smata will use reasonable efforts to advise you in advance of any unavailability.

3.3. Smata is responsible for procuring all Underlying Systems reasonably required for it to provide the Smata App in accordance with these terms.

3.4. From time to time Smata may advise you of additional terms or restrictions that apply to a particular function or feature, or on your use of the Smata App. you must comply with all such additional terms and restrictions.

4. Support

4.1. Smata will use reasonable efforts to provide email support in the form of consultation and assistance. Smata is not required to provide support, or may charge you additional fees for any support provided.

5. General Obligations

5.1. You must:

5.1.1. use the Smata App in accordance with these terms solely for the Intended Purpose and not for any unlawful purpose;

5.1.2. not transfer or resell the Smata App to any third party, act as a service bureau in respect of the Smata App, or otherwise commercially exploit the Smata App;

5.1.3. at your own cost, maintain any equipment and connections necessary for you to access or use the Smata App;

5.1.4. keep your User ID secure and not allow (by action or inaction) any other person to use it; and

5.1.5. immediately notify Smata if you become aware of any use of your User ID by another person, by sending an email to admin@smata.co.nz.

5.2. When accessing the Smata App, you must:

5.2.1. not impersonate another person or misrepresent authorisation to act on behalf of others or Smata;

5.2.2. not attempt to undermine the security or integrity of the Underlying Systems;

5.2.3. not use, or misuse, the Smata App in any way which may impair the ability of any other use to use the Smata App;

5.2.4. not attempt to view, access or copy any material or data other than that to which you are authorised to access; and

5.2.5. neither use the Smata App in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.

6. Fees

6.1. You must pay to Smata the Fees and all other amounts, plus GST. You must select a subscription period and pay the corresponding Fee.

6.2. Fees are charged on the basis of the subscription period selected by you, and are non-refundable, including if you terminate your use of the Smata App part way through a billing period.

6.3. If you do not pay any amount due, without limiting any right or remedy of Smata, Smata may do any or all of the following:

6.3.1. charge Default Interest which becomes immediately due for payment;

6.3.2. temporarily suspend, or terminate, your right to access and/or use the Smata App; and/or

6.3.3. require you to pay, on demand, all costs and expenses incurred by Smata in the recovery or attempted recovery of any overdue amount, including any debt collection agency fees, legal fees and administration costs.

7. Data and Privacy

7.1. You acknowledge that Smata requires access to the Data to provide the Smata App and otherwise give effect to these terms. you agree that Smata may authorise its personnel to access the Data, and you must arrange all necessary consents and approvals for Smata to access the Data, for that purpose.

7.2. For Smata to provide the Smata App, you will need to provide Personal Information to Smata. Smata’s Privacy Policy, as updated from time to time by Smata, applies to Smata’s collection, storage, use, and disclosure of Personal Information.

7.3. You acknowledge and agree that, to the extent that Data contains Personal Information, in collecting, holding and processing that information through the Smata App or otherwise under these terms, Smata is acting as your agent for the purposes of the Privacy Act and any other applicable privacy law.

7.4. You indemnify Smata against any Loss arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.

8. Anonymous and analytical data and Feedback

8.1. You acknowledge and agree that Smata may anonymise, use, and publish data (including Data) and any other information about use of the Smata App on an aggregated basis for reporting to third parties or on public mediums.

8.2. You acknowledge and agree that Smata may use data (including Data) and information about your use of the Smata App to generate analytical data and title to all Intellectual Property Rights in the analytical data will vest in Smata’s on creation, and not transfer to you.

8.3. If you provide Smata with know how, techniques, ideas, methodologies comments or suggestions relating to the Smata App (together “Feedback”):

8.3.1. all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by Smata; and

8.3.2. Smata may use or disclose the Feedback for any purpose.

9. Confidentiality

9.1. Each party agrees that, unless it has the prior written consent of the other party, it must keep confidential at all times the Confidential Information of the other party. you agree that Smata may use and disclose your Confidential Information for the purposes of providing the Smata App.

9.2. The obligations of confidentiality in 9.1 do not apply to any disclosure:

9.2.1. for the purpose of enforcing a party’s rights under these terms;

9.2.2. required by law;

9.2.3. to the extent it involves Confidential Information that is publicly available through no fault of the party making the disclosure;

9.2.4. of Confidential Information that was rightfully received from a third party without restriction as to confidentiality; or

9.2.5. by Smata, as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that Smata enters into a confidentiality agreement with the third party.

10. Intellectual Property

10.1. You agree that title to, and all Intellectual Property Rights in, the Smata App, including the Website and Mobile App and all information, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel forming part of the Website and Mobile App, and all Underlying Systems, are the property of Smata (and its licensors). Nothing in these terms transfers that ownership and you agree to not dispute Smata’s ownership of such items at any time.

10.2. Title to, and all Intellectual Property Rights in, the Data (as between you and Smata) is your property. you grant Smata a worldwide, non-exclusive, fully paid up, transferable, perpetual, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose connected with the exercise of its rights and performance of its obligations under these terms.

10.2. Title to, and all Intellectual Property Rights in, the Data (as between you and Smata) is your property. you grant Smata a worldwide, non-exclusive, fully paid up, transferable, perpetual, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose connected with the exercise of its rights and performance of its obligations under these terms.

10.3. To the extent not owned by Smata, you grant Smata a worldwide, non-exclusive, fully paid up, transferable, perpetual, irrevocable licence to use any know how, techniques, ideas, methodologies used or discovered by Smata in the provision of the Smata App.

10.4. You agree to, at your own cost, do all things (including signing any documents) required by Smata of you in order to give effect to this clause 10.

11. Warranties

11.1. Smata makes no representation that the Smata App will:

11.1.1. meet your requirements or be suitable or fit for any particular purpose, including that the use of the Smata App will fulfil or meet any statutory role, responsibility or obligation imposed on you; or

11.1.2. be secure, free of viruses or other harmful code, uninterrupted or error free.

11.2. To the maximum extent permitted by law, Smata’s warranties are limited to those set out in these terms, and all other conditions, guarantees or warranties whether express or implied by statute or otherwise are expressly excluded.

12. Liability

12.1. To the maximum extent permitted by law:

12.1.1. your access and use of the Smata App is at your own risk; and

12.1.2. Smata is not liable or responsible to you or any other person for any Loss under or in connection with these terms, the Smata App, or your access and use of (or inability to access or use) the Smata App. This exclusion applies regardless of whether Smata’s liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.

12.2. Smata is not liable to you for any loss of profit, use, revenue, data (including Data), savings, business, and/or goodwill, or indirect, consequential or incidental loss or damage, arising under these terms or in connection with these terms or your access and use of (or inability to access or use) the Smata App:

12.3. Where Smata cannot at law exclude its liability, to the maximum extent permitted by law, Smata’s total liability to you under or in connection with these terms, or in connection with the Smata App, or your access and use of (or inability to access or use) the Smata App, in any 12 month period is limited to the amount of Fees paid to Smata in respect of your use of the Smata App.

12.4. Nothing in these terms has the effect of contracting out of or excluding or limiting liability that cannot, at law, be excluded or limited.

13. Cancellation, termination, and suspension

13.1. You are entitled to cancel your user account at any time. You may cancel your user account by notifying us at admin@smata.co.nz If you cancel your user account before the end of the period for which you have paid Fees your cancellation will take effect immediately and you will not be entitled to any refund of Fees paid in advance (unless Smata agrees otherwise).

13.2. Smata may terminate your user account on written notice to you at any time without giving any reason. Such termination will be effective (at Smata’s election):

13.2.1. Immediately, and Smata will make a pro-rata refund of any Fees you have paid in respect of the period after termination; or

13.2.2. at the end of the then-current period for which you have paid Fees.

13.3. Without limiting any other right or remedy available to Smata, Smata may immediately suspend your access to, or use of, the Smata App, or terminate your user account, where Smata considers that you have:

13.3.1. undermined, or attempted to undermine, the security or integrity of the Smata App or any Underlying System;

13.3.2. used, or attempted to use, the Smata App for improper purposes or in a manner that reduces the operational performance of the Smata App; or

13.3.3. breached these terms or any applicable law.

13.4. If your user account is cancelled or terminated, your user account will be deactivated and all of your rights granted under these terms will immediately come to an end (except to the extent that it is necessary for them to continue in respect of our ongoing storage of Data up to the date of permanent deletion). Smata is not liable for any Loss following, or as a result of, cancellation or termination of your user account.

14. Notices

14.1. If Smata needs to contact you, it may do so by email or posting a notice on the Mobile App or the Website. You agree that this satisfies all legal requirements in relation to written communications.

14.2. Notices to Smata must be sent to admin@smata.co.nz or to any email address notified by email to you by Smata.

14.3. A notice sent by email is effective on transmission, provided that any communication received or deemed received after 5 pm or on a day which is not a business day is deemed not to have been received until the next business day.

15. Disputes

15.1. Any disputes between the parties will be discussed in the spirit of goodwill. If a party has any dispute in connection with these terms:

15.1.1. that party will promptly give full written particulars of the dispute to the other;

15.1.2. the parties will promptly meet (including by phone or video conference) and try to resolve the dispute;

15.1.3. if the dispute is not resolved within 10 business days of written particulars being given (or any longer period agreed to by the parties), either party may refer the dispute to mediation; and

15.1.4. party must not commence other legal proceedings, except an application for urgent interlocutory relief, without using the mediation procedure first, and only if the dispute has not been resolved within 20 business days of the Mobile Appointment of the mediator.

15.2. Nothing in this section 15 precludes either party from taking immediate steps to seek urgent interlocutory or equitable relief before a court of competent jurisdiction.

16. General

16.1. Smata is not liable to you for any failure to provide the Smata App or to otherwise perform its obligations under these terms to the extent the failure is caused by Force Majeure.

16.2. You may not assign or transfer any right or obligation under these terms without Smata’s prior written consent. Smata may, assign, transfer or novate any or all of its rights and obligations under these terms to any related or successor entity (including any entity that acquires all or any part of Smata’s business or assets).

16.3. Except as provided in clause 17.5, no person other than Smata and you has any right to a benefit under, or to enforce, these terms, and Smata has no responsibility or liability to any other person.

16.4. For a party to waive a right under these terms, the waiver must be in writing.

16.5. If any part or provision of these terms is or becomes illegal, unenforceable, or invalid, the part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from these terms and the remaining terms are binding.

16.6. These terms, and any dispute relating to these terms or the Smata App, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these terms or the Smata App.

16.7. These terms and Smata’s Privacy Policy sets out everything agreed by the parties relating to your use of the Smata App and supersede anything else discussed, exchanged or agreed prior to you agreeing to these terms. The parties have not relied on any representation, warranty or agreement relating to the Smata App that is not expressly set out in these terms, and no such representation, warranty or agreement has any effect from the date you first agreed to these terms. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986.

17. Additional terms for Apple App Store downloads

If you have downloaded the Mobile App from the Apple App Store, the following additional terms and conditions apply:

17.1. These terms are solely between you and Smata, and not with Apple. Smata (and not Apple) are solely responsible for the Mobile App and its content (subject to these terms). You acknowledge that Apple has no obligation to furnish any maintenance or support services to you in connection with the Mobile App.

17.2. In the event of any failure of the Mobile App to conform to any warranty that might be contained or implied into these terms, you may notify Apple, and Apple will refund the purchase price (if any) for the Mobile App. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Mobile App.

17.3. Any claim in connection with the Mobile App related to product liability, a failure to conform to applicable legal or regulatory requirements, claims under consumer protection or similar legislation or intellectual property infringement are governed by these terms, and Apple is not responsible for such claims.

17.4. You must comply with the Apple App Store terms of use, including the Usage Rules.

17.5. Apple and its subsidiaries are third party beneficiaries to these terms and, upon your acceptance of them, Apple will have the right to enforce these terms against you.

17.6. All other terms and conditions of these terms apply to your use of the Mobile App.

18. Definitions and Interpretation

18.1. In these terms, the following terms have the following meanings:

Mobile App means the “Smata” mobile device application.

Confidential Information means any information that is not public knowledge and that is obtained by one party in the course of, or in connection with, these terms and the provision of the Smata App.

Default Interest means interest calculated on overdue amounts owed by you to Smata from the due date to the date of payment (both inclusive) at an annual percentage rate equal to Smata’s primary trading bank’s corporate overdraft reference rate (monthly charging cycle) as at the due date (or if Smata’s primary trading bank does not at that time quote such a rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.

Data means any data inputted into the Smata App via the Mobile App or the Website by you or on your behalf, including Personal Information.

Fees means the fees (plus GST) payable by you for the use of the Smata App, as set out in the Mobile App and on the Website, and as updated from time to time by Smata.

Force Majeure means an event beyond Smata’s reasonable control, including internet failure, hacking or other illegal third party interference, natural or manmade disaster, government action, sabotage, or failure of electrical supply.

GST means goods and services tax under the Goods and Services Tax Act 1985.

Intellectual Property Rights means all industrial and intellectual property rights including copyright and all worldwide rights conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, data and databases, confidential information, know-how and all other rights resulting from intellectual activity.

Intended Purpose means the submission and review of student learning and development data and other similar services as hosted and made available as a part of the Smata App.

Loss includes loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis.

Objectionable includes being objectionable, defamatory, obscene, harassing, or unlawful in anyway.

Smata means Smata Limited, NZBN: 9429047228498.

Personal Information means information about an identifiable individual.

Privacy Act means the Privacy Act 1993 and any amendment or replacement to that legislation, such as the Privacy Act 2020.

Privacy Policy means the Smata Privacy Policy available on the Mobile App and the Website.

Smata App means the services made available by Smata via the Mobile App and/or the Website, and includes access to and use of the Mobile App. The Smata App are described in further detail on the Mobile App and/or the Website, as updated by Smata from time to time.

Underlying System means any network, system, software, IT solution, hardware, data or material that underlies or is used by Smata to provide the Smata App, including any third-party solution, system network or hardware. To avoid doubt, Underlying Systems exclude any network, system, hardware or internet connection required by you to access or use the Smata App.

User ID means a unique name and/or password allocated to you to access your user account for the Smata App.

Website means the internet site at the domain www.smata.co.nz.

you (or your) means the individual who is registered to use the Smata App and, as the context requires, includes any entity on whose behalf that individual has registered to use the Smata App.

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