Terms of Service
1. Definitions and Interpretation
1.1. The following words and phrases have specific meanings wherever you see them used in these Terms:
Affiliate means, with respect to a person, any person that directly or indirectly controls, is controlled by, or is under common control with such person, where “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management and policies of such person, whether through the ownership of securities, by contract, or otherwise.
Application means the Moxion application for a mobile phone, tablet or other mobile or peripheral device.
Confidential Information means any information disclosed by or on behalf of a party to the other party at any time before the termination of the Customer Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been reasonably understood by the other party to be confidential, in respect of the Customer, the Customer Data, and the terms of the Customer Agreement.
Content includes information, videos, audio files, data, metadata, text, photographs, written posts and comments, software, scripts, graphics and interactive features generated, provided, or otherwise made accessible on or through the Platform.
Customer means a person who has entered into a Customer Agreement with Moxion or a Reseller.
Customer Agreement means an agreement under which a person is granted the right to access or use our Services.
Customer Data means all data (including metadata), works and materials: uploaded to or stored on the Platform by the Customer or a User; transmitted by the Platform at the Customer’s or User’s instigation; supplied by you to Moxion for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Services by the you.
Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
Intellectual Property Rights means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, utility models and rights in designs).
Moxion means Moxion Limited, a company registered in New Zealand under company number 5902927, and our, us and we used in these Terms refer to Moxion.
Moxion Account means an account on the Platform.
Platform means the systems (including the Site, Application and other systems) we provide to enable Users to collaborate on a production and enable the provision of our Services in accordance with these Terms.
Reseller means a person we authorize to sell subscriptions for the Services.
Services means the operation of the Platform to facilitate the collaboration on productions and other associated services from time to time, in accordance with these Terms.
Services Defect means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Services, but excluding any defect, error or bug caused by or arising as a result of any act or omission of yours, any use of the Platform or the Services contrary to any documentation provided to the Customer, any failure of yours to perform or observe any of your obligations under these Terms, and/or any incompatibility between the Platform or Services and any other system, network, application, program, hardware or software not specified by us as compatible.
Site means the Moxion website at www.moxion.io or any variant thereof.
Terms means these terms of service.
User means an end user who has been authorised by a Customer to access Customer Data.
you means the person who accepts these Terms in accordance with clause 2 below.
1.2. In the interpretation of these Terms, unless the context otherwise requires or specifically otherwise stated:
1.2.1. references to the parties include their respective executors, administrators, successors and permitted assigns;
1.2.2. any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done;
1.2.3. headings have been inserted for convenience only and will not affect the construction of these Terms;
1.2.4. references to clauses and schedules are to those in these Terms;
1.2.5. including and similar words do not imply any limitation;
1.2.6. written and in writing includes any means of reproducing words, figures or symbols in a tangible and visible form;
1.2.7. every right, power and remedy of a party remains unrestricted and may be exercised without prejudice to each other at any time; and
1.2.8. where a party is comprised of more than one person, those persons will be bound by these Terms jointly and severally
2. Application of These Terms
2.1. These Terms are binding and apply to any use of the Services by the Customer and each User. By using the Services, Customers and Users irrevocably agree to these Terms and our enforcement of the Customer Agreement and these Terms against them.
2.3. If you do not agree to be bound by these Terms, you must not use the Services.
2.4. If you comply with these Terms, then we grant you a non-exclusive, non-transferable, worldwide licence to access and use the Services for your internal business purposes in accordance with these Terms.
3.1. We may revise these Terms at any time by providing you with at least 30 days’ prior notice of the change, whether via our website, by email or by any other messaging facility we may use. Continued use after that notice constitutes agreement to the changed terms.
3.2. These Terms were last updated on October 25, 2018.
4. Our Services
4.1. Moxion provides you with the Services to enable you to upload Content to the Platform and to access and manage that Content. The Services enable Users working on a production to perform the following key tasks:
4.1.1. view dailies and immediates uploaded to the Platform;
4.1.2. share assets and metadata with related platforms;
4.1.3. automatically (as per user settings) notify others when new files have been uploaded, downloaded, commented on or deleted;
4.1.4. set watermarks to be overlaid or burned into video showing user email, production name and custom text;
4.1.5. create a selection of video assets to be sent to others via a link (called a playlink);
4.1.6. move and copy video assets between productions;
4.1.7. automatically upload video assets from QTAKE, along with any associated metadata, to the Platform; and
4.1.8. make comments against points in time and points in space on video and audio footage.
4.2. The Services may only be used by officers, employees, distributors, sales agents, investors, completion guarantors and subcontractors of either the Customer or its Affiliates who are authorised by the Customer or Affiliate (as the case may be) to do so. The Customer acknowledges that it is liable for the acts and omissions of its Affiliates and its and their respective officers, employees, distributors, sales agents, investors, completion guarantors and subcontractors as if they were its own acts or omissions.
4.3. You must use reasonable endeavours, including reasonable security measures relating account access details, to ensure that no unauthorised person may gain access to the Services.
5. Availability, Maintenance and Updates
5.1. We will use reasonable endeavours to ensure that the uptime for the Services is at least 99.9% during each calendar month. We will be responsible for measuring uptime, and will do so using any reasonable methodology.
5.2. We will maintain and update the Services as and when we consider it appropriate to do so.
5.3. Where practicable, Customers will be given at least 10 Business Days' prior written notice of any scheduled maintenance that is likely to affect the availability of the Services or is likely to have a material negative impact on the Services.
6.1. We will provide the support services specified in schedule 1 to these Terms to the Customer during the term of the Customer Agreement.
6.2. We will provide the support services with reasonable skill and care.
7. Creating a Moxion Account
7.1. To create a Moxion Account, you must be authorised by the Customer, over 13 years of age and not have an existing Moxion Account.
7.2. You agree to provide accurate, current and complete information during the Moxion Account registration process and to update such information to keep it accurate, current and complete at all times. If you provide any false or misleading information, we may suspend or terminate your Moxion Account in accordance with clause 8.
7.3. During the registration process, you must choose a password as part of our security procedures. You must ensure that your password is strong and not disclose it to any third party.
7.4. You must not allow others to access or use your Moxion Account. No matter whether anyone using your Moxion Account is authorised to use it or has obtained unauthorised access, you will remain responsible for their actions and omissions.
7.5. You must tell us immediately if you think that someone has used or has unauthorised access to your Moxion Account or password, or there has been some other security breach.
8. Terminating your Moxion Account
8.1. You may close your Moxion Account at any time by following the Moxion Account closing process on the Platform.
8.2. We have the right to suspend or terminate your Moxion Account at any time, for any reason or no reason, which need not be disclosed to you. This includes but is not limited to Moxion Accounts that Moxion, considers in its sole discretion, contain invalid information or to have been used for inappropriate or objectionable activities, in violation of the Customer Agreement or these Terms, for non-payment of any amount due under the Customer Agreement, or use in breach of any law in any jurisdiction or which are, or may be, harmful or detrimental to Moxion or the Platform. We will not be liable for any loss of revenue or opportunity or any damage, cost or other liability, suffered or incurred by you in connection with a suspended or terminated Moxion Account.
8.3. If we exercise our discretion under these Terms to suspend or terminate your Moxion Account, any or all of the following can occur with or without any notice or explanation to you:
8.3.1. your Moxion Account will be deactivated or suspended and you will not be able to access any part of the Platform, your Moxion Account or any Content; and
8.3.2. we do not have an obligation to delete or return to you any Content you have uploaded to the Platform.
9. Account Access
9.1. We reserve the right to access your Moxion Account in order to respond to your requests for technical support.
10. Your Obligations
10.1. You must comply our acceptable use policy in schedule 2 and all applicable laws, regulations and rules when using the Platform, Services and with respect to any Content you upload to the Platform or share using our services.
10.2. You must provide to us, or procure for us, such cooperation and information and documentation as are reasonably necessary to enable us to perform our obligations under the Customer Agreement and these Terms.
11.1. You warrant by using the Services that all Content you upload to the Platform is in compliance with all applicable laws, rules and regulations.
11.2. You acknowledge that all Content accessed through your use of the Services is at your own risk and that you are solely responsible for any resulting damage or loss to you or any other party.
11.3. You must maintain copies of all Content you upload to the Platform. We do not make any guarantees that there will be no loss of your Content or the Services will be bug free. You should download your Content prior to terminating your Moxion Account.
11.4. We have rules which apply to Content uploaded to the Platform (see clause 12 (Content Rules)). If we are notified of a claim or allegation that Content uploaded to the Platform breaches our Content Rules, we may prevent such Content being accessible through the Platform or being used in connection with Services.
11.5. If we terminate your Moxion Account because you have breached these Terms we may delete your Content immediately or keep it for evidential purposes. In circumstances where we cease providing our Services for other reasons, we will, if reasonably practicable and we are not prevented by law or likely to incur any liability in doing so, give you 10 days’ notice to retrieve your Content.
12. Content Rules
12.1. Whenever you upload Content to the Platform you must comply with the content rules set out in this clause 12. You warrant that Content will not:
12.1.1. generate obscene, offensive, objectionable or inappropriate content;
12.1.2. damage, interfere with or degrade the functioning of the Platform;
12.1.3. create or send verbal, physical, written or other abuse or unsolicited commercial communications (including threats of abuse or retribution or spam) to any person or cause harm to any person in any way under the NZ Harmful Digital Communications Act 2015; or
12.1.4. create, transmit, distribute, or upload Content that violates trademark, copyright, trade secret, or other intellectual property rights of others or violates the privacy, publicity, or other personal rights of others.
12.2. You warrant that any Content uploaded to the Platform complies with the Content Rules in clause 12.1. You will be liable to us and indemnify us fully for any breach of that warranty. We have the right to remove any Content from your Moxion Account without notice if, in our opinion in our sole discretion, your Content does not comply with those standards.
12.3. We will not be responsible or liable to any third party, for the Content or accuracy of any Content on the Platform.
13. Privacy and Personal Information
13.2. You warrant in respect of all personal information about any identifiable individual, which is contained in any Content that you upload to the Platform, that you have the right to collect and use that personal information for the production in question and to make it available to us and our third party service providers so that we can together deliver the Services. You further warrant that our and those third parties’ collection, storage, distribution, disclosure and other use of that personal information to deliver the Services will not breach any privacy, data protection or other similar law in any jurisdiction.
13.3. We warrant to the Customer that:
13.3.1. we will only process personal information on instructions from the Customer or a User;
13.3.2. we have in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of personal information and against loss or corruption of personal information; and
13.3.3. we will only process personal information for the purposes of performing our obligations and exercising our rights under the Customer Agreement and these Terms.
13.4. We will notify the Customer promptly if:
13.4.1. any personal information is lost or destroyed, or becomes damaged, corrupted or unusable;
13.4.2. we receive any complaint or regulatory notice which relates to the processing of any personal information; or
13.4.3. we receive a request from a data subject for access to any personal information.
13.5. We will co-operate with the Customer in relation to:
13.5.1. any request from the Customer to amend or delete any personal information;
13.5.2. any complaint or regulatory notification relating to the processing of any personal information; and
13.5.3. any request from a data subject for access to any personal information,
at the cost and expense of the Customer.
13.6. We will ensure that access to personal information is limited to those of our personnel who have a reasonable need to access such information to enable us to perform our duties under the Customer Agreement and these Terms; any access to such information must be limited to such part or parts of the personal information as are strictly necessary.
13.7. We will take reasonable steps to ensure the reliability of any of our personnel who have access to any personal information. Without prejudice to this general obligation, we will ensure that all relevant personnel of ours are informed of the confidential nature of any personal information, have undertaken training in the laws relating to handling personal information, and are aware of our duties in respect of that personal information.
14. Intellectual Property Rights
14.1. Moxion Intellectual Property Rights:
14.1.1. We own all right, title and interest, including all Intellectual Property Rights, in and to the Platform and the Services and any suggestions, enhancements, requests, recommendations, corrections or other feedback provided by Customers and Users relating to the Platform and the Services.
14.1.2. Subject to the terms of the Customer Agreement and these Terms, we grant the Customer a worldwide, non-exclusive licence to access and use the Services, and make the Services available to Users, in each case, solely in accordance with the terms of the Customer Agreement and these Terms.
14.2. Customer Intellectual Property Rights:
14.2.1. The Customer and its Affiliates (or its or their third party licensors) (as applicable) own all right, title and interest, including Intellectual Property Rights, in and to the Customer Data.
14.2.2. Subject to the terms of the Customer Agreement and these Terms, the Customer grants us a worldwide non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt and edit the Customer Data to the extent reasonably required for the performance of our obligations and the exercise of our rights under the Customer Agreement and these Terms.
14.3. Nothing in the Customer Agreement or these Terms will operate to assign or transfer any Intellectual Property Rights from us to the Customer, or from the Customer to us.
14.4. You warrant that you own, or are authorised to use, any Intellectual Property Rights in any Content you upload to the Platform.
14.5. If we reasonably determine, or any third party alleges, that the use of the Services by a User in accordance with these Terms infringes any person’s Intellectual Property Rights, we may at our own cost and expense:
14.5.1. modify or revoke the Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
14.5.2. procure for the Customer the right to use the Services in accordance with these Terms.
14.6. For the avoidance of doubt, you have no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term. In addition, you agree not to reverse engineer, reproduce, duplicate, copy, sell, assign, resell or exploit any portion of the Platform or use or access the same without our express prior written permission.
15. Takedown Procedure
15.1. We may, without any prior notice to you, remove any of your Content from our Platform or block access to our Platform (totally or partially) where we have received a notice of intellectual property infringement or notice of takedown in respect of your Content or where we consider the Content to be illegal or otherwise in breach of these Terms . You agree that we will have no liability to you in respect of any loss (including loss of profit), cost or damage suffered or incurred by you as a result of such action. If there is a dispute between you and a third party as to whether your Content infringes the intellectual property or other rights of that third party, you acknowledge that it is your responsibility to resolve such dispute with the third party, and until you have provided us with satisfactory written confirmation of a resolution between you and the third party we will not restore the alleged infringing materials or reinstate access to the Platform. You agree to indemnify us against all claims, proceedings or actions by such third party against us including costs (legal or otherwise) that we may incur in defending such claims, proceedings or actions on a full indemnity basis.
16.1. We do not guarantee that the Platform will be secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programmes and site in order to access the Platform (if applicable). You should use your own virus protection software.
16.2. We will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Platform or to your downloading of any Content.
16.3. You must not misuse the Platform by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to the Platform, the server on which the Platform is stored or any server, computer or database connected to the Platform. You must not attack the Platform (if applicable) via a denial-of-service attack or a distributed denial-of service attack.
17.1. We warrant to the Customer that:
17.1.1. we have the legal right and authority to enter into and to perform our obligations under these Terms;
17.1.2. we will comply with all applicable legal requirements applying to the exercise of our rights and the fulfilment of our obligations under these Terms;
17.1.3. the use of the Services in accordance with these Terms will not breach any legal requirements applicable under New Zealand law;
17.1.4. we have or have access to all necessary know-how, expertise and experience to perform our obligations under these Terms.
17.1.5. the Platform and the Services will conform in all material respects with the specifications set out in clause 4.1;
17.1.6. the Services will be free from Service Defects;
17.1.7. the application of updates to the Platform by us will not introduce any Service Defects into the Services; and
17.1.8. the Platform will incorporate security features reflecting the requirements of good industry practice.
17.2. Customers and Users warrant to us that they have the legal right and authority to enter into these Terms and to perform their obligations under these Terms.
17.3. All of the parties' warranties and representations in respect of the subject matter of the Customer Agreement and these Terms are expressly set out in these Terms. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Customer Agreement or these Terms will be implied into the Customer Agreement or these Terms or any related contract.
17.4. The Customer agrees that it is using the Services for the purpose of a business and that the Consumer Guarantees Act 1993 (NZ) and any other similar consumer protection legislation in any jurisdiction does not apply to the Services.
18.1. The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of the Customer Agreement and these Terms, we give no warranty or representation that the Services will be wholly free from defects, errors and bugs, or available on an uninterrupted basis.
18.2. The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of the Customer Agreement and these Terms, we give no warranty or representation that the Services will be entirely secure.
18.3. The Customer acknowledges that the Services are designed to be compatible only with that software and those systems advised by us from time to time; and we do not warrant or represent that the Services will be compatible with any other software or systems.
19.1. In this clause 19, Disclosing Party means the party disclosing Confidential Information and Receiving Party means the party receiving the Confidential Information.
19.2. The Receiving Party must:
19.2.1. keep the Confidential Information strictly confidential;
19.2.2. not disclose the Confidential Information to any person without the Disclosing Party's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in the Customer Agreement and these Terms;
19.2.3. use the same degree of care to protect the confidentiality of the Confidential Information as the Receiving Party uses to protect the Receiving Party's own confidential information of a similar nature, being at least a reasonable degree of care;
19.2.4. act in good faith at all times in relation to the Confidential Information; and
19.2.5. not use any of the Confidential Information for any purpose other than media production through the use of the Services.
19.3. Notwithstanding clause 19.2:
19.3.1. the Receiving Party may disclose the Confidential Information to its officers, employees, professional advisers, insurers, agents and contractors who have a need to access the Confidential Information for the performance of their work with respect to the permitted purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information; and
19.3.2. we may, following public release of the production in respect of which the Services have been engaged, display the name of the production and its promotional poster together with a statement that the production was made with Moxion.
19.4. This clause 19 imposes no obligations upon a Receiving Party with respect to Confidential Information that:
19.4.1. is known to the Receiving Party before disclosure under the Customer Agreement and these Terms and is not subject to any other obligation of confidentiality;
19.4.2. is or becomes publicly known through no act or default of the Receiving Party; or
19.4.3. is obtained by the Receiving Party from a third party in circumstances where the Receiving Party has no reason to believe that there has been a breach of an obligation of confidentiality.
19.4.4. Disclosure required by law. The restrictions in this clause 19 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the securities of a party on any recognised stock exchange.
19.5. The provisions of this clause 19 will continue in force indefinitely following the termination of the Customer Agreement.
20.1. We will indemnify and will keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising out of any claim brought against the Customer by a third party to the extent that the claim alleges that the Customer's use of the Services infringes the third party's Intellectual Property Rights (a Moxion Indemnity Event).
20.2. The Customer must:
20.2.1. upon becoming aware of an actual or potential Moxion Indemnity Event, notify us;
20.2.2. provide to us all such assistance as may be reasonably requested by us in relation to the Moxion Indemnity Event;
20.2.3. allow us the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Moxion Indemnity Event; and
20.2.4. not admit liability to any third party in connection with the Moxion Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Moxion Indemnity Event without our prior written consent,
and our obligation to indemnify the Customer under clause 20.1 will not apply unless the Customer complies with the requirements of this clause 20.2.
20.3. The Customer agrees to indemnify, and hold us and our Affiliates and us and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, any tax, legal and/or accounting fees, arising out of or in connection with your access to or use of the Platform, Services or your violation of these Terms.
21. Limitations and Exclusions of Liability
21.1. Nothing in the Customer Agreement and these Terms will:
21.1.1. limit or exclude any liability for fraud or fraudulent misrepresentation;
21.1.2. limit any liabilities in any way that is not permitted under applicable law; or
21.1.3. exclude any liabilities that may not be excluded under applicable law.
21.2. The limitations and exclusions of liability set out in this clause 21 and elsewhere in the Customer Agreement and these Terms govern all liabilities arising under the Customer Agreement and these Terms or relating to the subject matter of the Customer Agreement and these Terms, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Customer Agreement and these Terms.
21.3.1. Neither party will be liable to the other party in respect of any losses arising out of a Force Majeure Event.
21.3.2. Neither party will be liable to the other party in respect of any loss of profits or anticipated savings.
21.3.3. Neither party will be liable to the other party in respect of any loss of revenue or income.
21.3.4. Neither party will be liable to the other party in respect of any loss of use or production.
21.3.5. Neither party will be liable to the other party in respect of any loss of business, contracts or opportunities.
21.3.6. Neither party will be liable to the other party in respect of any loss or corruption of any data, database or software.
21.3.7. Neither party will be liable to the other party in respect of any special, indirect or consequential loss or damage.
21.3.8. We will not be liable to the Customer in respect of the pulling of Customer Data from, or sharing Customer Data with, any associated platform at the Customer's request.
21.3.9. We will not be liable to the Customer under a Moxion Indemnity Event to the extent that the third party's claim arises from the Customer's breach of the Customer Agreement or these Terms, use of the Services in a manner not reasonably contemplated by the Customer Agreement or these Terms, or any Customer Data or third party's data.
21.4. Our aggregate liability in respect of a Customer under the Customer Agreement and these Terms will not exceed the total amount received by us under such Customer’s Customer Agreement (directly, or indirectly via a Reseller) in the 12 month period preceding the commencement of the event giving rise to the liability.
22.1. We will maintain and keep in force during the term of the Customer Agreement insurance of such types and in such amounts as may be notified to the Customer from time to time.
22.2. Certificates of insurance will be provided to Customers on request.
23. Force Majeure Event
23.1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Customer Agreement and these Terms (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
23.2. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Customer Agreement and these Terms, must:
23.2.1. promptly notify the other; and
23.2.2. inform the other of the period for which it is estimated that such failure or delay will continue.
23.3. A party whose performance of its obligations under the Customer Agreement and these Terms is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
24.1. We may assign or transfer our rights under the Customer Agreement and these Terms, at our sole discretion, without restriction. You may not assign or transfer your rights under the Customer Agreement or these Terms without our prior written consent, which may be withheld in our absolute discretion.
24.2. Any notices or other communications permitted or required under these Terms, including those regarding modifications to these Terms, will be in writing and given by us:
24.2.1. via email (in each case to the address that you provide); or
24.2.2. via the Platform. For notices made by email, the date of receipt will be deemed the date on which such notice is sent.
24.3. These Terms will be governed by and construed in accordance with New Zealand law. You agree to submit to the exclusive jurisdiction of the courts of New Zealand with respect to any claim or matter arising out of or in connection with these Terms or their termination.
24.4. No failure or delay by us to exercise any right or remedy provided under the Customer Agreement or these Terms or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy by us will prevent or restrict the further exercise of that or any other right or remedy.
24.5. If any provision or part-provision of these Terms is or becomes void, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision will be severable and deemed to be deleted, and will not affect the validity, legality or enforceability of the remaining provisions.
1.1. We will make available to the Customer a helpdesk in accordance with the provisions of this schedule.
1.2. The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the support; and the Customer must not use the helpdesk for any other purpose.
1.3. We will ensure that the helpdesk is accessible by electronic message and phone or other audio means.
1.4. We will ensure that the helpdesk is operational and adequately staffed. In addition, we will provide special contact details for the Customer to report critical issues.
1.5. The Customer must ensure that all requests for support that it may make from time to time are made through the helpdesk.
2. Response and Resolution
2.1. We will use reasonable endeavours to respond to requests for, and resolve issues raised through, the helpdesk promptly, and in any case in accordance with the following time periods (which will be measured from the earlier of our discovery of the incident and our receipt of a support incident notification from the Customer):
Definition - Urgent
Urgent - Complete loss of service and work cannot reasonably continue. Real or perceived data loss or corruption. An essential part of the system is unusable.
Acknowledgement of receipt of the support incident within 90 minutes and will provide updates of progress every 60 minutes thereafter.
Resolve the support incident or provide an interim workaround within 8 hours.
Definition - High
A critical capability cannot be accessed by a method that is part of the product design, but it can be accessed by one or more alternate methods. Essential functionality of the service operates in a way that is materially different from system design.
Acknowledgement of receipt of the support incident within 4 hours and will provide updates of progress every 90 minutes thereafter.
Resolve the support incident or provide an interim workaround within 12 hours.
The Services are usable but are not functioning in accordance with the system design and the error condition has no substantial impact. The incident has a minor impact on service or resource where it may cause some impact but the trouble can be circumvented.
Acknowledgement of receipt of the support incident within 1 Business Day and will provide updates of progress every 1 Business Day thereafter.
Resolve the support incident or provide an interim workaround within 5 Business Days.
All other issues such as cosmetic issues.
Acknowledgement of receipt of the support incident within 1 Business Day.
Resolve within the next 2 planned upgrades.
2. We will ensure that our response to a request for support will include the following information (to the extent such information is relevant to the request): an acknowledgement of receipt of the request, where practicable an initial diagnosis in relation to any reported error, and an anticipated timetable for action in relation to the request. Support will be provided remotely unless otherwise agreed.
Acceptable Use Policy
1. General usage rules
1.1. You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
1.2. You must not use the Services:
1.2.1. in any way that is unlawful, illegal, fraudulent or harmful; or
1.2.2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
1.3. You must ensure that all Content complies with the provisions of this Policy.
2. Unlawful Content
2.1. Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
2.2. Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
2.2.1. be libellous or maliciously false;
2.2.2. be obscene or indecent or involve moral turpitude;
2.2.3. infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
2.2.4. infringe any right of confidence, right of privacy or right under data protection legislation;
2.2.5. constitute negligent advice or contain any negligent statement;
2.2.6. constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
2.2.7. be in contempt of any court, or in breach of any court order;
2.2.8. constitute a breach of racial or religious hatred or discrimination legislation;
2.2.9. constitute a breach of official secrets legislation; or
2.2.10. constitute a breach of any contractual obligation owed to any person.
3. Usage volume
3.1. The Customer acknowledges that the charges for the Services were established on the basis that the following usage volumes will not be exceeded:
Storage (Per Production)
Transcode Minutes (Per Production)
2,000 (footage will only be transcoded if it is not uploaded in a format specified by Moxion)
2. The Customer agrees that should the Customer have higher usage requirements than those specified above, the Customer may be liable for increased charges.
Moxion Limited (we, us, our) complies with the New Zealand Privacy Act 1993 (the Act) when dealing with personal information. Personal information is information about an identifiable individual (a natural person).
This policy sets out how we will collect, use, disclose and protect your personal information.
This policy does not limit or exclude any of your rights under the Act. If you wish to seek further information on the Act, see www.privacy.org.nz.
Changes to This Policy
We may change this policy by uploading a revised policy onto the website. The change will apply from the date that we upload the revised policy.
Who Do We Collect Your Personal Information From
We collect personal information about you from:
you, when you provide that personal information to us, including via the website and any related service, through any registration or subscription process, through any contact with us (e.g. telephone call or email), or when you buy or use our services and products.
If possible, we will collect personal information from you directly.
How We Use Your Personal Information
We will use your personal information:
to verify your identity
to provide services and products to you
to market our services and products to you, including contacting you electronically (e.g. by text or email for this purpose)
to improve the services and products that we provide to you
to bill you
to respond to communications from you, including support requests
to conduct research and statistical analysis (on an anonymised basis)
to protect and/or enforce our legal rights and interests, including defending any claim
for any other purpose authorised by you or the Act.
Disclosing your personal information
We may disclose your personal information to:
another company within our group
any business that supports our services and products, including any person that hosts or maintains any underlying IT system or data centre that we use to provide the website or other services and products
other third parties (for anonymised statistical information)
a person who can require us to supply your personal information (e.g. a regulatory authority)
any other person authorised by the Act or another law (e.g. a law enforcement agency)
any other person authorised by you.
A business that supports our services and products may be located outside New Zealand. This may mean your personal information is held and processed outside New Zealand.
Protecting Your Personal Information
We will take reasonable steps to keep your personal information safe from loss, unauthorised activity, or other misuse.
Accessing and Correcting Your Personal Information
Subject to certain grounds for refusal set out in the Act, you have the right to access your readily retrievable personal information that we hold and to request a correction to your personal information. Before you exercise this right, we will need evidence to confirm that you are the individual to whom the personal information relates.
In respect of a request for correction, if we think the correction is reasonable and we are reasonably able to change the personal information, we will make the correction. If we do not make the correction, we will take reasonable steps to note on the personal information that you requested the correction.
If you want to exercise either of the above rights, email us at email@example.com. Your email should provide evidence of who you are and set out the details of your request (e.g. the personal information, or the correction, that you are requesting).
We may charge you our reasonable costs of providing to you copies of your personal information or correcting that information.
While we take reasonable steps to maintain secure internet connections, if you provide us with personal information over the internet, the provision of that information is at your own risk.