PERSONAL FACTORY API AND APP GATEWAY
TERMS & CONDITIONS
» 1. DEFINITIONS AND INTERPRETATION
» 2. GENERAL
» 3. USE OF API, APP GATEWAY AND MATERIALS
» 4. APPS
» 5. PRODUCT ORDERS
» 6. SUPPORT
» 7. GENERAL RESPONSIBILITIES
» 8. COMMUNICATIONS
» 9. INTELECTUAL PROPERTY AND BRANDING
» 10. SUSPENSION AND TERMINATION
» 11. WARRENTIES
» 12. LIABILITY AND INDEMNITY
» 13. INSURANCE
» 14. RECORDS AND AUDIT
» 15. GENERAL
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In these terms and conditions, unless the context indicates otherwise:
API means the application programming interface (including any modification or update to that interface) forming part of Personal Factory;
App means any application (including any modification or update to that application) developed by or on behalf of you which accesses or interfaces with the API;
App Gateway means the computer software (including any modification or update to that software) forming part of Personal Factory which is marketed as the "App Gateway" and lists and contains links to Apps;
Developer Program Forum means the developer program category within our User forum located here;
Good Industry Practice means, in relation to any activity, the exercise of a degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the same type of activity, under the same or similar circumstances;
Intellectual Property means trade marks, rights in domain names, copyright, patents, registered designs, circuit layouts, rights in computer software, databases and lists, rights in inventions, confidential information, know-how and trade secrets, operating manuals, quality manuals and all other intellectual property, in each case whether registered or unregistered (including applications for the grant of any of the foregoing) and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world, including the goodwill associated with the foregoing and all rights of action, powers and benefits in respect of the same;
Materials means any information, documentation or code made available by us to you in connection with the API or App Gateway;
Personal Factory means the computer software (including any modification and enhancement to that software) developed by us and marketed as "Personal Factory", as made available by us to you from time to time;
Product means any product, or part of a product, which is the subject of a Product Order;
Sales Tax means any present or future sales tax, value added tax, goods and services tax, or any other similar Tax (including any such tax required to be withheld, but excluding other forms of Tax including any income tax or related withholding tax), imposed in New Zealand or elsewhere by any level of government or other taxing authority, and includes (without limitation) goods and services tax levied under the Goods and Services Tax Act 1985;
Tax means any present or future tax, direct or indirect and including any interest, penalties or additions thereto, imposed in New Zealand or elsewhere by any level of government or other taxing authority and includes (without limitation) income tax, withholding tax, Sales Tax, and any other statutory or governmental impositions, dues, duties, levies, tariffs, charges, rates or regional or local taxes;
Term means the period commencing on the date that you accept these terms and conditions and expiring on the date that these terms and conditions cease to have effect under clause 10;
Terms of Use means the terms of use relating to our website here;
us, we and our means Ponoko Limited (New Zealand company number 1896161);
User means any person who is registered as a user of, and is authorised by us to use, Personal Factory;
Website means our website here;
you means you, a User.
1.2 Interpretation: In these terms and conditions, unless the context indicates otherwise:
- references to parties are to you and us;
- references to the singular include the plural and vice versa;
- references to clauses are to clauses in these terms and conditions;
- references to any statutory provision are to statutory provisions in force in New Zealand and include any statutory provision which amends or replaces it;
- the term includes or including (or any similar expression) is deemed to be followed by the words without limitation; and
- references to any document (however described) are references to that document as modified, novated, supplemented, varied or replaced from time to time and in any form, whether on paper or in an electronic form.
1.3 Precedence: In the event of any inconsistency between these terms and conditions and the Terms of Use, these terms and conditions will take precedence.
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2. GENERAL
2.1 Terms and Conditions: These terms and conditions govern your use of the API, App Gateway and Materials, and the services we provide to you, once you register your App on the Website.
2.2 Terms of Use: You acknowledge that all other terms agreed between you and us, including the Terms of Use, will continue to have effect.
2.3 Changes: We may change these terms and conditions at any time by posting updated terms and conditions on the Website. Any changes to these terms and conditions will take effect from the time that they are published on the Website. You are responsible for regularly reviewing the terms and conditions that are published on the Website from time to time.
2.4 Additional Terms and Conditions: We may, at our sole discretion and at any time, require you to enter into additional terms or a separate agreement for you to continue to access the API, App Gateway or Materials (including in circumstances where the integration of your App with our API places an undue burden on our resources). In such a case, we will notify you in writing of this requirement, including setting out the terms upon which you may continue to access the API, App Gateway and Materials.
2.5 Launch of App Gateway: You acknowledge that the App Gateway is currently under development and you will not be able to access it unless and until we notify you otherwise.
top3. USE OF API, APP GATEWAY AND MATERIALS
3.1 Right to Use: We grant to you a non-exclusive, non-transferable licence to use the API, App Gateway and Materials during the Term solely for the purpose of you developing, maintaining, updating, promoting and using your Apps.
3.2 Limitations on Use: You must:
- use the API, App Gateway and Materials in a responsible manner;
- not use, or permit anyone else to use, the API, App Gateway or Materials in any way which is unlawful, abusive or offensive;
- not damage or adversely affect the API, App Gateway or Materials;
- not interfere with Personal Factory, the supply by us of products or services to any other person, or any other person's use of the API, App Gateway or Materials; and
- comply with all of our security requirements in accessing and using the API, App Gateway and Materials, and promptly notify us in writing if you become aware of any breach of any such requirements.
3.3 Updates: We may update or change the API, App Gateway or Materials at any time and at our sole discretion. We will endeavour to notify you of material updates or changes to the API, App Gateway or Materials by email or posting details of these updates or changes in the Developer Program Forum.
3.4 Change Request: You may at any time request that we modify or enhance the API, App Gateway or Materials (for example to introduce additional functionality or correct any error or bug) by making such a request in the Developer Program Forum. We may act on your request at our sole discretion, and may (in certain circumstances) require that you and we enter into additional terms or a separate agreement to effect the request.
3.5 Scheduled Maintenance: We will endeavour to notify you in advance of any scheduled maintenance of the API by posting details of the scheduled maintenance in the Developer Program Forum.
top4. APPS
4.1 Testing App: Once you have registered your App, you must test your App to ensure that it complies with the requirements in clause 4.4 (and you must otherwise ensure that you have fully complied with these requirements).
4.2 Access to Live API: Once you have tested your App in accordance with clause 4.1, you must obtain our written approval of your App in order to access our live API, and we may grant such approval to you at our sole discretion. If we accept your App, we will promptly enable such access. If we reject your App, we will not be required (but may choose) to give you reasons for doing so.
4.3 Access to App Gateway: You must obtain our prior written approval if you wish us to publish your App and any related content on the App Gateway (and we can grant such approval at our absolute discretion). If we approve your App for publication on the App Gateway, we will publish it on the App Gateway and include a link from the App Gateway to the website where the App is available for purchase, download or use. If we reject your App, we will not be required (but may choose) to give you reasons for doing so.
4.4 Requirements: All Apps must:
- comply with our specifications, as published on the Website here from time to time;
- be substantially free of bugs and errors, and not contain any computer viruses, interruptions, logic bombs, Trojan horses, spyware, malware or other forms of malicious code or performance impediments;
- be efficiently programmed in accordance with Good Industry Practice, so as not to place an undue burden on our resources;
- not infringe the Intellectual Property rights of any third party;
- comply with our acceptable use policy as notified to you in writing from time to time (by email or posting the policy in the Developer Program Forum; and
- not be obscene, abusive or offensive.
4.5 Representations: Any representations you make regarding your App (including on the App Gateway and in any other advertising or promotional material) must accurately represent the attributes and functionality of your App, and not be misleading in any way.
4.6 Removal: Subject to clause 10, you are responsible for removing or suspending your App from the API and App Gateway.
top5. PRODUCT ORDERS
5.1 Price: Upon request, we will provide to you (through the API) a price for us to manufacture and deliver a Product. Any price you give to your customer for the manufacture and delivery of that Product must not be lower than the quote we provide to you (unless we agree otherwise).
5.2 Ordering: To order a Product, you must create and submit an order to us (Product Order) in accordance with the process described on our Website here.
5.3 Manufacture/Delivery: Upon our acceptance of a valid Product Order, we (or our suppliers) will source the required materials to manufacture the relevant Product, and manufacture, package, label and deliver the relevant Product to the address specified in the Product Order. The Products will be delivered using the mode of shipment, carrier and shipping account specified in the Product Order.
5.4 Payment: You have the option to either:
- charge your customers directly for any Product Orders, in which case, you must provide the billing information requested by us on the Website to enable us to charge our fees to you; or
- request us to charge your customers for any Product Orders, in which case, you must direct your customers to the Website to order directly from the Website via their own Personal Factory accounts.
5.5 Taxes: The fees that may be charged by us under clause 5.4(a) will include any applicable Sales Tax in respect of the Product Order, and are payable without any deduction or withholding for or account of any Tax (unless required by law, in which case our fees will be increased to the extent necessary to ensure that after the deduction or withholding we retain, free and clear of any liability for or account of the relevant Tax, a net sum equal to the full sum that we would have received or retained had not such deduction or withholding been required).
top6. SUPPORT
6.1 Our Support: We will provide support to you via the Developer Program Forum in relation to your use of the API, App Gateway and Materials.
6.2 Your Support: You will provide support to your customers in relation to their use of your Apps.
top7. GENERAL RESPONSIBILITIES
7.1 Your Responsibilities: You will, in performing your obligations under these terms and conditions:
- at all times deal and co-operate with us in good faith;
- promptly comply with our reasonable directions;
- comply with all relevant laws, including (where applicable) the Consumer Guarantees Act 1993 and Privacy Act 1993;
- not damage our reputation or goodwill, or that of Personal Factory or any other User;
- ensure that any information you provide about yourself is correct, complete, accurate and current, and notify us of any changes as soon as reasonably possible; and
- be responsible for providing all technology, hardware, software and telecommunication facilities in order to access and use the API, App Gateway and Materials.
7.2 Our Responsibilities: We will, in performing our obligations under these terms and conditions:
- act with due care and skill;
- comply with all relevant laws; and
- perform them in the manner set out in these terms and conditions.
8. COMMUNICATIONS
We may from time to time send to you electronic messages relating to your App or Personal Factory. If you no longer wish to receive these messages then you should notify us by clicking on the “unsubscribe” link contained in the relevant electronic message.
top9. INTELECTUAL PROPERTY AND BRANDING
9.1 Our Intellectual Property: You acknowledge that all Intellectual Property in Personal Factory, the Materials, and any other Intellectual Property that we provide to you or that you access in connection with these terms and conditions (including in any modifications, enhancements or additions to that Intellectual Property) is owned by us or our licensors.
9.2 Your Intellectual Property: Subject to clause 9.1, we acknowledge that all Intellectual Property in the Apps, any content provided by you in relation to the Apps and any other Intellectual Property that you provide to us in connection with these terms and conditions (including in any modifications, enhancements or additions to that Intellectual Property) is owned by you or your licensors.
9.3 Licence to Use our Branding: We grant to you a non-exclusive, non-transferable licence to use our branding and trade marks during the Term, but only to the extent required for you to promote and use your Apps or Personal Factory in accordance with these terms and conditions. Any use of our branding and trade marks must comply with our requirements (as notified to you in writing from time to time) or otherwise be approved by us in writing.
9.4 Licence to use your Intellectual Property: You grant to us a non-exclusive licence to use your Intellectual Property to the extent required for us to exercise our rights and perform our obligations under these terms and conditions, and for our marketing and promotional purposes.
9.5 Branding on Products: We will be entitled to incorporate our branding, or the branding of our suppliers, on any Product packaging delivered to your customers.
9.6 IP Indemnity: You and we indemnify each other against any loss, damage or cost arising from any third party's claim that your or our (as applicable) Intellectual Property infringes the Intellectual Property rights of that third party.
9.7 Personal Information: You agree that we may collect, use and hold personal information about your customers and disclose it to third parties for the purposes of providing you with the services described in these terms and conditions or to carry on our business operations. You must ensure that the terms of your agreement with your customers enable us to do so. Where any information that we collect about you is personal information, we will comply with our privacy policy which can be found on the website here.
top10. SUSPENSION AND TERMINATION
10.1 Suspension: We may suspend or terminate your access to the API, remove your App from the App Gateway and/or cease supplying our services to you, at any time and without prior notice if:
- you do not pay any fees due to us by the applicable payment date for those fees;
- you otherwise breach these terms and conditions;
- you become (or we reasonably consider that you are likely to become) insolvent, bankrupt or a poor credit risk; or
- we cease to provide the API, App Gateway or all or any of our services as described in these terms and conditions.
10.2 Termination for Convenience: We may terminate your access to the API, remove your Apps from the App Gateway and/or cease supplying our services to you upon giving you 30 days' notice in writing to this effect.
10.3 Consequences of Termination: If we terminate your access to the API, remove your Apps from the App Gateway and/or cease supplying our services to you in accordance with clauses 10.1 or 10.2:
- these terms and conditions will cease to have effect;
- you will immediately pay us any outstanding amounts; and
- termination will be without prejudice to our or your rights and remedies in respect of any breach by you, where the breach occurred before the termination of these terms and conditions.
11. WARRENTIES
11.1 Authority: If you are an individual, and you are using the API, App Gateway or our services on behalf of an organisation, you warrant that:
- you have the appropriate authority and power to do so on behalf of that organisation;
- you are authorised to accept these terms and conditions on behalf of the organisation; and
- the performance of your obligations under these terms and conditions will not constitute a breach of any other agreement or the rights of any third party.
11.2 No Warranty: We do not warrant that the API, App Gateway or Materials or are accurate or complete, or error or bug free.
11.3 No Other Warranty: Except as otherwise stated in these terms and conditions, we do not make any warranties about the API, App Gateway or Materials.
11.4 Business User: If you are a business User, you agree that you are obtaining and using (or are holding yourself out as obtaining and using) our services for business purposes only. Accordingly, the Consumer Guarantees Act 1993 does not apply to these terms and conditions.
top12. LIABILITY AND INDEMNITY
12.1 Exclusion: Nothing expressed or implied in these terms and conditions will confer any liability on us for any:
- indirect, consequential or special loss, damage, cost or expense suffered or incurred by you as a direct or indirect result of a breach by us of any of our obligations under these terms and conditions; or
- loss, damage, cost or expense suffered or incurred by you, to the extent to which this results from any act or omission by you.
12.2 Limitation of Liability: Subject to clause 12.3, our maximum liability to you under or in connection with these terms and conditions (whether in contract, tort or otherwise) is an amount equal to the fees paid by you to us in the 3 months immediately preceding the event giving rise to the liability.
12.3 Sole Remedy: To the extent that our liability is not otherwise excluded or limited, your sole remedy against us in connection with these terms and conditions will be for us to remedy or replace (as applicable) any defects in any Product supplied to your customer, or if that is not reasonably practicable, reimburse our fees to you in respect of that defective Product.
12.4 Indemnity: You will indemnify us at all times against any loss, damage or cost suffered or incurred by us as a direct or indirect result of a breach by you of any of your obligations or warranties under these terms and conditions.
12.5 Third Party Content: We will not be liable to you for the accuracy, completeness or currency of your or any third party's content.
top13. INSURANCE
13.1 Maintain Insurance: You will, at all times during the Term, maintain the insurances which a prudent, skilled and experienced person engaged in activities similar to the activities undertaken by you in connection to these terms and conditions would reasonably and ordinarily be expected to maintain, with reputable insurers.
13.2 Provide Evidence: You will, whenever reasonably requested by us to do so, provide written evidence to us of compliance by you with your obligations under clause 13.1.
top14. RECORDS AND AUDIT
14.1 Records: You will, in accordance with Good Industry Practice, keep full, accurate and up-to-date accounts, records and documentation relating to the performance of your obligations under these terms and conditions.
14.2 Provide Copies: You will promptly provide to us copies of your accounts, records and documentation relating to the performance of our obligations under these terms and conditions, upon our written request.
top15. GENERAL
15.1 Force Majeure: Neither you nor we (First Party) will be liable for any act, omission or failure by it under these terms and conditions if that act, omission or failure results directly from an event or circumstances beyond the reasonable control of the First Party, provided that:
- whenever the First Party becomes aware that such a result has occurred or is likely to occur, the First Party will notify the other party by written notice accordingly;
- each party will continue to use its best endeavours to perform its obligations as required under these terms and conditions; and
- neither party will be deemed to have accepted any liability to pay or share any extra costs which may be incurred by the other party in complying with this clause or otherwise resulting from such act, omission or failure.
15.2 Assignment: You will not assign or otherwise transfer any of your rights or obligations under these terms and conditions to any other person without our prior written consent.
15.3 Entire Agreement: These terms and conditions record the entire understanding and agreement of the parties relating to the matters dealt with in these terms and conditions. These terms and conditions supersede all previous understandings or agreements (whether written, oral or both) between the parties relating to these matters.
15.4 Further Assurances: Each party will do all things and execute all documents reasonably required to give effect to the provisions and intent of these terms and conditions.
15.5 Governing Law/Jurisdiction: These terms and conditions are governed by the laws of New Zealand. The parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to these terms and conditions.
15.6 Partial Invalidity/Severance: If any provision of these terms and conditions is or becomes invalid or unenforceable, that provision will be deemed deleted from these terms and conditions. The invalidity or unenforceability of that provision will not affect the other provisions of these terms and conditions, all of which will remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provision.
15.7 Relationship Between Parties: Nothing expressed or implied in these terms and conditions constitutes either party as the partner, agent, employee or officer of, or as a joint venturer with, the other party. Neither party will make any contrary representation to any other person.
15.8 Cumulative Remedies: The rights, powers and remedies provided in these terms and conditions are cumulative and are in addition to any rights, powers or remedies provided by law.
15.9 Waiver: Any waiver by a party of any of its rights or remedies under these terms and conditions will be effective only if it is recorded in writing and signed by that party. If the waiver relates to a breach of any provision of these terms and conditions, this will not (unless stated otherwise) operate as a waiver of any other breach of that provision. No waiver of any breach, or failure to enforce any provision, of these terms and conditions at any time by either party will in any way affect limit or waive that party's right to subsequently require strict compliance with these terms and conditions.
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