CANDIDPAY

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TERMS AND CONDITIONS OF SERVICE

Candidpay Limited (“Candidpay”, “we”, “us”, “our”) is the provider of a data and tool service (via the Platform) in connection workforce compensation assessment and analysis.

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The following terms and conditions (the “Terms and Conditions”) governs each Subscriber’s use of the Platform.  

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1. Definitions

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1. In these Terms and Conditions, the words and expressions set out below shall, unless the context otherwise requires, have the following meanings:

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“Aggregate Anonymous Data” includes data that is collected by Candidpay from multiple Subscribers via their use of the Platform, where such data cannot be used to identify any individual; 

“Claim” means all actions, proceedings, suits, claims and demands of any nature whatsoever; 

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"Confidential Information" includes all information exchanged between the Subscriber and Candidpay pursuant to these Terms and Conditions, whether in writing, electronically or orally, including via the Platform but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party;

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“Force Majeure Event” means any event or circumstances beyond the reasonable control of Candidpay, including (without limitation), industrial or civil disputes, war, governmental action, riot, fire, flood, drought or an act of God, terrorism (including the threat of terrorism), epidemics and pandemics;

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“GST” means goods and services tax, as that term is defined in the Goods and Services Tax Act 1985 (NZ);

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"Intellectual Property Right" means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

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"Invited User" means any person or entity, other than the Subscriber, that accesses the Platform with the authorisation of a Subscriber and in accordance with these Terms and Conditions;

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“Loss” means all damage, loss, liability, cost and expense (including legal expenses between solicitor and client) of any nature whatsoever;

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“Platform” means:

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1. the platform that is owned and operated by Candidpay for providing the Services and that is made available to the Subscriber pursuant to these Terms and Conditions including via the Websites, the Candidpay mobile app or via such other websites or apps as Candidpay may determine from time to time; and

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2. includes all data, information, content or otherwise made available via the Platform; 

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"Services" means the services provided by Candidpay via the Platform;

"Subscriber" means any person who registers to use and access the Platform, and, where the context permits, includes any entity on whose behalf that person registers to use the Service and an Invited User;

"Subscription Fee" means the applicable fee payable by each Subscriber for access to and use of the Platform, as specified on the Platform or as otherwise agreed between Candidpay and a Subscriber in writing, and as may be increased in accordance with the Terms and Conditions;

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“Subscriber Materials" means materials and data: 

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1. Uploaded to, stored on, processed using or transmitted via the Platform by the Subscriber; and 

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2. Otherwise provided by the Subscriber to Candidpay in connection with these Terms and Conditions,

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but for the avoidance of doubt does not include any Intellectual Property Rights in the Platform (which is the sole property of Candidpay); 

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“Tools” means the provision of tools and data relating to recruitment and retention of the Subscriber’s employees and other personnel, accessible via the Platform as part of the Services; 

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“Website” means www.candidpay.co.nz, www.candidpay.ai and any other website owned by Candidpay which is used to access the Platform; 

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“Working Day” means a day (other than a Saturday, Sunday or public holiday) on which registered banks are open for normal banking business in Auckland, New Zealand.

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2. Agreement

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1. These Terms and Conditions apply to each Subscriber’s use and access of the Platform. By registering to access and use the Platform the Subscriber is deemed to be bound by these Terms and Conditions and represents, warrants and acknowledges that it has read and understood these Terms and Conditions. 

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3. Access to Platform

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1. Subject to the limitations set out at clause 3.2 below and the prohibitions set out in clause 3.3 below, Candidpay grants each Subscriber a non-exclusive, non-transferable licence to access and use the Platform (including the Service, via the Platform) according to the relevant Subscriber’s subscription type. 

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2. The licence granted by Candidpay pursuant to clause 3.1 above is subject to the following limitations: 

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1. Subject to sub-clause (b) below, unless expressly approved by Candidpay, the Platform may only be used by the Subscriber and its employees and officers (if any);

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2. The Subscriber may permit third parties to access the Platform (each as an “Invited User”), provided that:

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1. The Subscriber has obtained Candidpay’s prior written approval (at its discretion) to the relevant Invited User. In this regard, the Subscriber must disclose to Candidpay who the proposed Invited User is and what level of access to the Platform the relevant is intended to have. 

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2. Each Invited User must access and use the Platform in accordance with these Terms and Conditions; and

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3. The Subscriber is responsible for all use of the Platform by its Invited Users. The Subscriber shall be liable and responsible to Candidpay for any breach of these Terms and Conditions by an Invited User; and

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4. The Subscriber controls each Invited User’s level of access to the Platform 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;

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5. Candidpay may (at its discretion) enforce limits or prohibitions on any Invited User’s access and use of the Platform. 

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3. Except to the extent expressly permitted in these Terms and Conditions, the licence granted by Candidpay under this clause 3 is subject to the following prohibitions, under which the Subscriber must not:

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1. Sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform;

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2. Frame or otherwise re-publish or re-distribute the Platform;

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3. Alter or adapt or edit the Platform;

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4. Not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Platform (including the Services) except as is strictly necessary to use either of them for normal operation;

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5. Access the object code or source code of the Platform at any time;

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6. Use the Platform in any way that causes or may cause damage to the Platform or impairment of the availability or accessibility of the Platform whatsoever;

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7. Use the Platform in any way that is unlawful, illegal, fraudulent, harmful or otherwise in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;

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8. Attempt to undermine the security or integrity of Candidpay’s computing system or networks or, where the Platform is hosted by a third party, that third party’s computing systems and networks;

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9. Share any data, materials or information accessible via the Platform with a third party, except with Candidpay’s prior written consent;

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10. Otherwise use or access the Platform in breach of the Subscriber’s other obligations under these Terms and Conditions. 

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4. Obligations 

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1. General obligations and restrictions:

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1. The Subscriber must only use and access the Platform for its own lawful internal business purposes which directly relate to the Tools. For the avoidance of doubt, except with the prior written consent of Candidpay, the Subscriber is prohibited from using or accessing the Platform for any of the following purposes (without limitation): 

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1. Providing the Tools for use by any third party (i.e. any party other than the Subscriber);

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2. Compiling or extracting any content made available via the Platform (including the Tools) for the purpose of making information available to any third party (whether as a directory or otherwise) with a view to  a profit or a fee or other consideration. 

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2. It is the sole responsibility of the Subscriber to ensure that all Subscriber Material:

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1. is up-to-date and correct and not false or misleading in any way; 

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2. has been obtained by the Subscriber and provided to Candidpay via the Platform or otherwise in accordance with all applicable privacy laws; 

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3. The Subscriber must ensure that all usernames and passwords required to access the Platform are kept secure and confidential and to immediately notify Candidpay of any unauthorised use of the Subscriber’s passwords, or any other breach of security. Without limitation to the aforesaid, the Subscriber must take all other actions that Candidpay reasonably deems necessary to maintain or enhance the security of Candidpay’s computing systems and networks and its access to the Platform.

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4. Use of the Platform may be subject to limitations, including but not limited to data storage volumes. Any such limitations will be advised in advance by Candidpay.

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5. Where a Subscriber uses any communication tools available through the Platform, the Subscriber shall only use such communication tools for lawful and legitimate purposes. The Subscriber must not use any such communication tool for posting or disseminating any material unrelated to the use of the Platform, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person's computing devices or software, content that may be offensive to any other users of the Platform, or material in violation of any law (including material that is protected by copyright or trade secrets which the Subscriber does not have the right to use). When a Subscriber makes any communication on the Platform, it represents that it is permitted to make such communication. Candidpay is under no obligation to ensure that the communications on the Platform are legitimate or that they are related only to the use of the Platform. 

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5. Payment Terms

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1. The Subscription Fee is exclusive of GST unless otherwise stated.

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2. Candidpay reserves the right to increase or decrease the Subscription Fees shown on the Platform. 

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3. Unless otherwise specified by Candidpay, payment of the Subscription Fee and all other sums payable under these Terms and Conditions will be in New Zealand Dollars.

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4. The Subscriber must pay Candidpay the Subscription Fee pursuant to the payment terms specified via the Platform. Subscribers may elect to subscribe to the Platform on either a fixed monthly or yearly subscription (subject at all times to payment of the relevant Subscription Fee). Candidpay may also offer a 1 month free trial to subscribers of the Platform, under which subscribers have a right to terminate subscription (without penalty) at any time during the 1 month free trial period, prior to the fixed term subscription commencement. 

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5. Without prejudice to any other rights under these Terms and Conditions, Candidpay shall be entitled in the case of overdue payments from a Subscriber:

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1. to charge interest on such overdue payments at the rate of 14% per annum, from the due date until the date of payment; and/or

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2. Suspend or otherwise terminate access to the Platform. 

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6. Without limitation to clause 5.5, each Subscriber indemnifies Candidpay in relation to any costs and expenses (including solicitor costs) incurred by Candidpay in relation to enforcing any payment due to Candidpay (including Subscription Fees) by that Subscriber pursuant to these Terms and Conditions which has not been paid by its due date. 

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6. Intellectual Property 

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1. Subject to clause 6.2, all Intellectual Property Rights in the Platform and any documentation relating to the Platform (including all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel, and the underlying systems) is the exclusive property of Candidpay (and/or its licensors) at all times. 

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2. Subscriber Materials:

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1. The Subscriber grants to Candidpay a non-exclusive licence to store, copy and otherwise use the Subscriber Materials on the Platform for the purposes of operating the Platform, fulfilling its other obligations under these Terms and Conditions, and exercising its rights under these Terms and Conditions; and

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2. Nothing in clause 6.1 will give Candidpay any ownership rights in the Subscriber Material and Candidpay’s rights and interest in the Subscriber Material is limited to the extent necessary to provide the Platform. 

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3. The Subscriber warrants and represents that the Subscriber Materials and their use by Candidpay under these Terms and Conditions will not breach any laws (including privacy laws), statutes, regulations or infringe any person’s Intellectual Property Rights (or other legal rights), in each case in the applicable jurisdiction of the Subscriber and under any applicable law.

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4. Candidpay adheres to reasonable 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 Subscriber Materials. For the avoidance of doubt, Candidpay will only make back-ups of Subscriber Materials stored on the Platform. In the event of the loss of, or corruption of, Subscriber Materials stored on the Platform being notified by the Subscriber to Candidpay, Candidpay’s liability in relation to such loss shall be limited to Candidpay using reasonable endeavours to promptly restore the Subscriber Materials from the most recent available back-up copy available.

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5. If a Subscriber enables third-party applications for use in conjunction with the Platform, the Subscriber acknowledges that Candidpay may allow the providers of those third-party applications to access Subscriber Materials as required for the interoperation of such third-party applications with the Platform (including Services). Candidpay shall not be responsible for any disclosure, modification or deletion of Subscriber Materials resulting from any such access by third-party application providers.

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6. The Subscriber acknowledges and agrees that Candidpay may use and retain Aggregate Anonymous Data (including the retention and use of such Aggregate Anonymous Data following termination of these Terms and Conditions between the Subscriber and Candidpay) for various purposes, including, research and analysis to enhance functionality and performance of the Platform; understand and identify trends and user behavior to tailor our marketing efforts and improve use experiences; and conduct research and development in relation to new features, services or products. 

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7. Warranties and Acknowledgments 

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1. Subscriber Warranties: The Subscriber warrants and represents that:

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1. It has the legal right and authority to enter into and perform its obligations under these Terms and Conditions;

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2. Where it has registered to use the Platform on behalf of another person, it has the authority to agree to these Terms and Conditions on behalf of that person and agrees that by registering to use the Platform, it binds the person on whose behalf the Subscriber acts to the performance of any and all obligations that the Subscriber becomes subject to by virtue of these Terms and Conditions;

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3. It is authorised to access and use the Platform and to access and use the information and Subscriber Materials it inputs into the Platform (whether such information/Subscriber Materials is that of the Subscriber or that of anyone else).

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2. Candidpay Warranties: Candidpay warrants to the Subscriber:

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1. That it has the legal right and authority to enter into and perform its obligations under these Terms and Conditions;

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2. That it will perform its obligations under these Terms and Conditions with reasonable care and skill;

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3. That the Platform (excluding the Subscriber Materials) will not infringe any third party’s Intellectual Property Rights.

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3. Subscriber Acknowledgments: The Subscriber acknowledges and agrees to the following:

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1. Candidpay has no responsibility to any person other than the Subscriber in connection with its use of the Platform and nothing in these Terms and Conditions confers, or purports to confer, a benefit on any person other than the Subscriber.

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2. If the Subscriber uses and/or accesses the Platform on behalf of or for the benefit of anyone other than the Subscriber (whether a body corporate or otherwise) the Subscriber agrees that:

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1. It is responsible for ensuring that the Subscriber has the right to do so;

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2. It is responsible for authorising any person who is given access to information or Subscriber Materials and that Candidpay has no obligation to provide any person access to such information or Subscriber Materials without the Subscriber’s authorisation and may refer any requests for information to the Subscriber to address; and

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3. Candidpay gives no warranty or representation that the Platform will be wholly free from such interruptions, defects, errors and bugs;

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4. The operation and availability of the systems used for using and access the Platform can be unpredictable and may from time to time interfere with or prevent access to the Platform. Without limitation to the aforesaid, it is the responsibility of the Subscriber to ensure it has sufficient systems to support use and access to the Platform. Candidpay is not in any way responsible for any such interference or prevention of access or use of the Platform. Without limitation to the aforesaid, it is the responsibility of the Subscriber to ensure it has the necessary software, hardware and systems (including payroll and HR system) to use and access the Platform; 

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5. It is the sole responsibility of the Subscriber to determine that the meet the needs of the Subscriber and are suitable for the purposes for which they are used;

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6. Except as expressly set out in these Terms and Conditions, Candidpay does not provide any other warranty (implied or otherwise) in connection with the Platform; 

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7. If the Subscriber is using the Platform for business purposes, the Subscriber acknowledges and agrees 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 and access of the Platform.

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8. Candidpay may use aggregate data (including Subscriber Materials) obtained via the Platform for the purpose of sharing such data with Subscribers for industry analysis, reporting and other similar purposes, subject to Candidpay ensuring that such aggregate data is anonymised so that no person or organization is able to be identified from such data made available by Candidpay. 

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8. Liability and Indemnity

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1. To the fullest extent permitted by law, in no event will Candidpay be liable (whether in contract, tort (including negligence), or otherwise) to the Subscriber for:

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1. Loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of data or wasted management or staff time; or

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2. Loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature, arising directly or indirectly out of these Terms and Conditions, even if Candidpay had been advised of the possibility of such damages, and even if such loss, damage, cost or expense was reasonably foreseeable by Candidpay.

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2. The maximum liability of Candidpay to the Subscriber arising out of any and all claims under these Terms and Conditions, or relating to the Platform will not in any circumstances exceed the Subscription Fee paid by the Subscriber in the 12-month period prior to such claim arising. 

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3. The Subscriber indemnifies Candidpay and its employees, directors and representatives (the “Indemnified Persons”) and holds the Indemnified Persons harmless from and against all Claims brought or made by or against the Indemnified Persons, and from and against all Loss incurred, suffered or sustained by the Indemnified Persons resulting from:

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1. A breach (or attempted breach) of these Terms and Conditions;

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2. Any negligent act or omission by the Subscriber (including an Invited User) under, or in connection with, these Terms and Conditions.

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9. Termination

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1. Subject to sub-clause (a) and and (b) below, either party may elect to terminate these Terms and Conditions between Candidpay and the Subscriber at any time upon providing at least [60] day’s written notice. For the avoidance of doubt:

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1. If the Subscriber has signed up to a fixed term subscription to use the Platform (either monthly or yearly), the Subscriber cannot terminate these Terms and Conditions pursuant to this clause 9.1 until the expiry of the relevant fixed term; 

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2. Candidpay cannot terminate these Terms and Conditions pursuant to this clause 9.1, during any fixed term subscription of the Subscriber; 

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3. Notwithstanding sub-clauses (a) and (b) above, either party can terminate these Terms and Conditions pursuant to the termination rights at clause 9.2 below (Termination for Breach); 

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4. If Candidpay terminates a Subscriber’s fixed term subscription early pursuant to sub-clause (c) above, the Subscriber will still be liable to pay Candidpay the relevant Subscription Fee until the end of the relevant fixed term subscription. This obligation shall survive termination of these Terms and Conditions;

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5. If the Subscriber terminates its fixed term subscription early pursuant to sub-clause (c) above, the Subscriber will only be liable to pay the Subscription Fee to Candidpay up until the date of early termination.

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2. Termination for Breach: Either party may terminate these Terms and Conditions between Candidpay and the Subscriber if, the other party (the “Defaulting Party”):

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1. Materially breaches any terms of these Terms and Conditions and does not remedy the breach within 14 days after receiving notice of the breach (if the breach is capable of being remedied); or

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2. Breaches any terms of these Terms and Conditions and the breach is not capable of being remedied; or

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3. Becomes insolvent, or its business goes into liquidation or has a receiver or manager appointed of any of its assets,

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3. If these Terms and Conditions between Candidpay and a Subscriber are terminated in accordance with these Terms and Conditions, then: 

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1. The Subscriber’s access and use of the Platform shall immediately cease; 

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2. Termination of these Terms and Conditions is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. For the avoidance of doubt, on termination of these Terms and Conditions the Subscriber will remain liable for any accrued charges and amounts which become due for payment before or after termination and immediately cease to use and access the Platform;

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3. All clauses intended to survive the expiry or termination of these Terms and Conditions shall survive the expiry or termination of these Terms and Conditions.

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10. Help Desk

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1. In the case of technical problems with the Platform, the Subscriber must make all reasonable efforts to investigate and diagnose problems before contacting Candidpay. If the Subscriber still needs technical help, please check the support provided online by Candidpay on the Platform (or Website) or by emailing Candidpay at help@candidpay.co.nz.

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2. Whilst Candidpay intends that the Platform should be available 24 hours a day, seven days a week, it is possible that on occasions the Platform may be unavailable to permit maintenance or other development activity to take place. If for any reason Candidpay has to interrupt the Services for longer periods than Candidpay would normally expect, Candidpay will use reasonable endeavors to publish in advance details of such activity on the Platform.

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11. Confidentiality and Privacy

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1. Except as otherwise set out in these Terms and conditions, unless the relevant party has the prior written consent of the other or unless required to do so by law:

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1. Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms and Conditions. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms and conditions; 

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2. Each party's obligations under this clause will survive termination of these Terms and Conditions; 

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3. Subclauses (a) and (b) shall not apply to any information which: (1) is or becomes public knowledge other than by a breach of this clause; or (2) is received from a third party who lawfully acquired it; or (3) is already in the possession of the receiving party prior to disclosure from the disclosing party; or (4) that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body.

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2. To the extent applicable, Candidpay shall comply with privacy laws applicable to Subscriber Materials in respect of the collection, use, transfer, retention and other procession of personal data. The Subscriber warrants that it has the legal right to disclose all personal data that it discloses to Candidpay under or in connection with these Terms and Conditions. 

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3. In addition to the above, if the Subscriber is deemed to be bound by these Terms and Conditions (in accordance with its terms), it is also deemed to have read, understood and agreed to be bound by Candidpay’s privacy policy (https://www.candidpay.ai/privacy) (the ‘Privacy Policy’). The Privacy Policy forms part of these Terms and Conditions. 

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12. General 

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1. These Terms and Conditions shall be governed by and interpreted in accordance with the laws of New Zealand. 

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2. Candidpay shall not be liable to any Subscriber for its inability to perform (or any delay in performing) any obligations under these Terms and Conditions (including the provision of the Platform) caused by Force Majeure Event. If a Force Majeure Event occurs, then Candidpay shall immediately notify the Customer and take all reasonable steps to reduce its effect (if any).

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3. The Subscriber is responsible for ensuring it is familiar with the latest Terms and Conditions. These Terms and Conditions may be amended whether in whole or in part by Candidpay at any time. Any changes Candidpay makes will be effective immediately upon posting a revised version of the Terms and Conditions on the Platform. By continuing to use the Website and/or Package, the Customer agrees to be bound the Terms and Conditions as amended. 

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4. These Terms and Conditions constitute the entire agreement between the parties regarding the matters set out in it and supersedes any prior representations, understandings or arrangements made between the parties whether orally or in writing or otherwise.

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5. If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to 
   

be read down so as to be enforceable, valid and legal, if this is not possible, the clause (or where possible, the offending part) is to be severed from these Terms and Conditions without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect. 

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