Terms of Service
Last updated on October 31, 2023
The following terms of service set out our obligations as a service provider and your obligations as a Customer or Invited User when using Frello. If you have any questions about these terms, please contact us.
1. Agreement
1.1. Agreement: This Agreement is entered into by and between Frello Limited, a company duly incorporated in New Zealand with company number 8454371 (NZBN 9429050770229) (“Frello”, “we”, “us”, “our”) the entity agreeing to these terms (“Customer”, “you”, “your”), and each Invited User, if any. If you are entering into this Agreement on behalf of your Organisation, you confirm that:
1.1.1. you have full legal authority to bind your Organisation and all Invited Users, to these terms and conditions;
1.1.2. you have read and understand this Agreement; and
1.1.3. you agree, on behalf of your Organisation and all Invited Users, that by using the Service you bind your Organisation to the performance of any and all obligations that you become subject to by virtue of this Agreement, without limiting your own personal obligations under this Agreement.
1.2. Variation: We may (acting reasonably) unilaterally amend or update this Agreement from time to time by written notice to you. Such written notice may include alerts or notifications through the Service itself, or by email. You will be deemed to have agreed to such updated terms by using the Service after the date of such update. If any update to these terms will have a material effect on your rights under this Agreement and you do not agree to the updated terms, you should cease using the Service and may terminate this Agreement on written notice to us, with immediate effect.
1.3. Term: This Agreement continues until terminated in accordance with its terms.
2. Definitions
2.1. Definitions: In these terms, unless the context otherwise requires:
“Agreement” means these terms of service and our Privacy policy.
“Access Fee” means the monthly or annual fee that we charge for the provision of our Service in accordance with the Pricing Plan you are on, including any Integration Fee, surcharges for a higher Member Limit, discounts or preferential pricing, but excluding Professional Services Fees.
“Confidential Information” means all written and oral information provided by either party to the other (and, in the case of us, to any Invited User) or to which the other party (inlcuding in the case of the customer, its Invited Users) gain access. It is acknowledged and agreed that all information regarding the Service is our Confidential Information.
“Custom Domain” means a custom domain different from the Designated Domain, which is provided by you and through which you and any Invited Users will access the Service.
“Customer Data” means any data inputted by you, Invited Users, or with your authority into the Service.
“Data” means Customer Data and Third Party Data.
“Designated Domain” means the subdomain under myfrello.com that has been assigned specifically to your Organisation and through which you and any Invited Users can access the Service (unless using a Custom Domain).
“Fees” means all Access Fees, Integration Fees, Payment Processing Fees, Professional Services Fees and any other amounts payable by you under or in connection with this Agreement.
“Integration Fee” means the monthly or annual fee that we charge for the provision of additional integrations with the Service (for example our access & light control integration) as separately notified to you by us in writing.
“Invited User” means any person or entity, other than you, that accesses or uses the Service with your authorisation.
“Member Limit” means the maximum number of members/players that are allowed on a particular Pricing Plan.
“Organisation” means the club, company, organisation or other entity that you intend to use the Service for, if applicable.
“Payment Processing Fees” means the fees charged for processing online payments from Invited Users on behalf of your Organisation through the Service as separately notified to you by us in writing from time to time.
“Personal Data” means any information about an individual by which that person can be identified. This does not include data where the identity has been removed, for example anonymous data.
“Pricing Plan” means each and any of the pricing plans for the Service set out at https://getfrello.com/pricing, and in relation to you, means the Pricing Plan you are on as agreed with us in writing from time to time in accordance with clause 8.1.
“Privacy Policy” means our privacy policy (as updated from time to time), available at https://getfrello.com/privacy-policy.
“Professional Services” means any additional configuration, customisation, development, data migration, onboarding or support services that we are to perform for you, as agreed in writing between the parties.
“Professional Services Fees” means the fees charged for the provision of any Professional Services we provide to you.
“Sales Tax” means goods and services tax, value added tax or equivalent tax payable under any applicable law.
“Service” means the online club management software solution made available to you by Frello through the Website, your Designated Domain or Custom Domain, and any other applications we may provide from time to time.
“Start Date” means the date at which your paid access to the Service begins, as separately notified to you by us in writing.
Third Party Data” means any third party data you or your Invited Users gain access to via the Service, including data or information obtained via a third party integration with the Service, but excluding Customer Data.
“Website” means https://getfrello.com.
2.2. Interpretation: In this Agreement:
2.2.1. where the term “including” is used (or a similar expression is used to denote an example) that term or expression is deemed to be followed by the words “without limitation”.
2.2.2. personnel includes officers, employees, and contractors; and
2.2.3. a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
3. Our Service
3.1. Use of Service: Frello grants you the right to access and use the Service via your Designated Domain or Custom Domain. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that:
3.1.1. you determine who is an Invited User and what level of user role access to the Service that Invited User has;
3.1.2. you are responsible for all Invited Users’ use of the Service and their compliance with this Agreement;
3.1.3. you control each Invited User’s level of access to the Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be;
3.1.4. if there is any dispute between you and an Invited User regarding access to the Service, you shall decide what access or level of access to the Service or Data that Invited User shall have, if any.
3.2. Availability: We cannot guarantee that the Service (or parts thereof) will be available at all times. It may be unavailable for maintenance, reasons related to our infrastructure providers, or other events outside of our control.
3.3. Modifications: We may provide updates to, or new versions of, the Service (or any part of it) and reserve the right to take down applicable servers hosting the Website or Service to conduct scheduled maintenance, or any other urgent maintenance. We will use commercially reasonable efforts to provide prior notification to you if we need to take the Service down for maintenance.
3.4. Domain name ownership: Frello owns and controls your Designated Domain and may change it if the situation warrants it. If we intend to change your Designated Domain, we will give you advance notice via email.
3.5. Beta services: From time to time, we may invite you to try beta services at no charge. You may accept or decline any such trial in your sole discretion. Beta services will be clearly designated as such, for example as beta, pilot, limited release, preview, evaluation release or similar description. Any beta services trialled may be withdrawn by us at any time. Beta services are supplied on an “as is – where is” basis. Beta services are:
3.5.1. for evaluation purposes only;
3.5.2. not to be considered as the Service;
3.5.3. unsupported; and
3.5.4. not guaranteed as an ultimate release of the Service, or if released, may be subject to additional terms.
4. General obligations
4.1. Obligations: You (and all Invited Users):
4.1.1. must only use the Service for your own lawful purposes in accordance with this Agreement and all applicable laws (including any applicable privacy legislation in connection with the Data).
4.1.2. confirm to us that you have all rights to use and enter the Data into the Service; and
4.1.3. are responsible for ensuring the Service will meet your requirements or that it will be suitable for your intended purpose.
4.2. Account security: You (and all Invited Users) must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify us of any unauthorised use of your or any Invited User’s passwords or any other breach of security and we will reset your or that Invited User’s password. You must take all other actions that we reasonably deem necessary to maintain or enhance the security of your and or any Invited User’s access to the Service. We are not responsible for any losses due to stolen or hacked passwords.
4.3. Access conditions: When accessing and using the Service, you (and all Invited Users) must:
4.3.1. not attempt to undermine the security or integrity of our computing systems or networks or, where the Service is hosted by a third party, that third party's computing systems and networks;
4.3.2. not use, or misuse, the Service in any way which may impair the functionality of the Service, or impair the ability of any other user to use the Service, or cause harm to another person;
4.3.3. not attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the computer systems on which the Service is hosted;
4.3.4. not transmit, or input into the Service, any: files that may damage any other person's computing devices or Service, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which you do not have the right to use);
4.3.5. not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to operate the Service including try to derive the source code or the underlying ideas, algorithms, structure or organisation form of the Service (or any part of them);
4.3.6. comply with our instructions in relation to any update or new version and notify us of any material defects.
4.4. Communication conditions: If you or any Invited Users use any communication tools available through the Service (such as any email service or message centre), you agree only to use such communication tools for lawful and legitimate purposes. You (and all Invited Users) must not use any such communication tool for posting or disseminating any material unrelated to the use of the Service, 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 Service, content that may be offensive to any other users of the Service, or material in violation of any law (including material that is protected by copyright or trade secrets which you do not have the right to use).
4.5. Rights to content: When you make any communication via the Service, you represent that you are permitted to make such communication. We are under no obligation to ensure that the communications sent out via the Service are legitimate or that they are related only to the use of the Service. We reserve the right to remove any communication at any time at our sole discretion.
4.6. Digital restrictions: Frello may use technology (including digital rights management protocols) or other means to protect the Service, protect our customers, or to prevent you from breaching this Agreement.
4.7. Competitor access: You may not access the Service if you are a direct competitor of ours, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
4.8. Third party applications: If you enable third party data feeds or third party applications in using the Service, you acknowledge that we may allow those third party providers access to your Data to the extent needed to make them work. We are not responsible for any disclosure, modification or deletion of your Data resulting from any such access by third party providers.
4.9. Unlawful activity: If we consider (acting reasonably) that you or any of your Invited Users has engaged in any unlawful or unauthorised activity, have used the Service beyond the scope of your authorisation or are in breach of any term of this Agreement, without limiting any other remedies available to us, we may:
(a) limit or suspend your and your Invited Users’ access to the Service; and
(b) delete, edit or remove any of the relevant data, material or information.
5. Support
5.1. Service availability: Whilst we intend that the Service should be available 24 hours a day, seven days a week, it is possible that on occasions the Service may be unavailable, to permit maintenance or other development activity to take place.
5.2. Technical support: In the case of technical problems you must make a reasonable effort to investigate and diagnose problems before contacting Frello. Support will be provided in accordance with the Pricing Plan you are on.
5.3. Limited support: We will only provide technical support to you directly or, by mutual agreement, to a few other key users within your Organisation. It is your responsibility to provide support to Invited Users in case of technical problems or any queries related to the usage of the Service that they may have. You will make reasonable efforts to resolve support issues from Invited Users before escalating them to us.
5.4. Access to Data: You grant us the right to access, view and if necessary manipulate your Data for the purpose of troubleshooting and providing technical support to your Organisation or your Invited Users.
5.5. Service errors: We will try and remedy any Service errors in the Service that may occur as soon as practicable. Service errors in the Service will be remedied at our expense, unless caused by you or your Invited Users.
5.6. Additional support: Any additional support which you may request from us and which is not related to technical problems arising due to Service errors in the Service or queries regarding the use of the Service, including a request to restore Data from our backups or a request to implement a custom feature in the Service for your Organisation, may incur extra charges. Whenever this is the case, we will advise you of the hourly rate or fixed fee prior to providing such support.
6. Payment integrations
6.1. Payment integrations: We offer Invited Users the ability to pay for their financial transactions online through the Service using integrations with third party payment providers. These providers include Stripe for credit and debit card payments and POLi for account to account payments in New Zealand. We may change our payment providers from time to time.
6.2. Payment collection and payout: Payment collection from Invited Users and payouts to your bank account are processed by the payment providers directly. Payments are not processed through Frello’s bank accounts, nor do we store or process credit/debit card numbers directly.
6.3. Payment Processing Fees: Payment Processing Fees for handling online payments from Invited Users may apply to some payment integrations. These fees can either be sponsored by your Organisation, in which case the Payment Processing Fees will be deducted from your payout, or charged to Invited Users directly, in which case the fees will be added on top of their amount to pay. A combination of both methods is also possible. Your Organisation is free to decide which method to use and can switch between methods at any time by choosing the relevant option in the Service.
6.4. POLi Integration Fee: Integration with POLi (available in New Zealand only) comes with an additional Integration Fee to cover the support and maintenance of this integration. This Integration Fee will be billed to you as a part of the Access Fee.
6.5. Payment details: A detailed overview of all online transactions and payments processed through the Service is available to you online in the Service. Additional information about specific payments can also be obtained by logging in to the dashboard of the relevant payment provider.
7. Access & Light Control integration
7.1. Access & light control integration: If you wish to connect an access and/or light control system for use with the Service, you will need to purchase the hardware from us, the cost of which we will quote you upon request.
7.2. Manufacturer warranty: Where you obtain an access and/or light control system directly from us (rather than through the manufacturer or another retailer), we will supply the system on the terms as provided to you in writing (including by email) or in our quote.
7.3. Integration Fee: Integration with an access and/or light control system comes with additional Integration Fee to cover the support and maintenance of this integration. This Integration Fee will be billed to you as a part of the Access Fee.
8. Pricing
8.1. Pricing Plan selection: You may choose any of the available Pricing Plans for your Organisation, provided that the number of members/users in your Organisation does not exceed the Member Limit of that Pricing Plan. If while on a Pricing Plan, the number of members/users in your Organisation increases substantially above the Member Limit of your Pricing Plan, you must switch to a larger Pricing Plan. However, if your member or user numbers periodically fluctuate above and below the Member Limit, we may allow you at our sole discretion to keep your existing Pricing Plan. Any such agreement must be in writing from us. Taking the Member Limit into account, you are free to upgrade or downgrade to a different Pricing Plan at any time.
8.2. Price increases: The Access Fee of your Pricing Plan will remain fixed for a period of twenty-four (24) months from the Start Date. After this period has ended, we reserve the right to increase the Access Fee of your Pricing Plan at our discretion upon one (1) month’s notice. Such notice may be provided at any time by email.
8.3. Billing period: For any of our Pricing Plans, you may choose either a monthly or an annual billing period for the payment of your Access Fee.
8.4. Minimum term: The minimum term for each Pricing Plan is the duration of your billing period.
8.5. Partial periods: Depending on your selected billing period, any partial period of usage of the Service will be rounded up to a full period of usage for the purpose of calculating the Access Fee.
8.6. Professional Service Fees: We will advise you of the hourly rate or fixed fee for any Professional Services, before providing such services.
9. Payment obligations
9.1. Access Fee: An invoice for the Access Fee will be issued at the start of each billing period. The first invoice will be issued on the Start Date. All invoices will include the Access Fee for the following period of use.
9.2. Payment Processing Fees: Any applicable Payment Processing Fees will be deducted from online payments automatically at the source (e.g. in Stripe) whenever a payment is processed through the Service.
9.3. Professional Services Fees: Any applicable Professional Services Fees will be invoiced separately and in accordance with the payment terms agreed with us in writing.
9.4. Taxes: All amounts payable under this Agreement by the Customer (including the Fees) (a) do not include any Sales Tax which, if applicable and if we are required to account for, shall be payable by the Customer in addition to such amounts; and (b) shall be paid gross without deduction of any withholding taxes and, if subject to any withholding taxes, the Customer shall ensure that such sum is paid to us as shall, after deduction of any withholding tax, be equivalent to the amounts due.
9.5. Invoicing method: All our invoices will be sent by email, either to you, or to a Billing Contact whose details are entered by you into the Service.
9.6. Payment method: Payments are to be made via Credit/Debit Card in the currency as specified on the invoice, unless otherwise agreed with us in writing.
9.7. Automatic collection: If you enter a Credit or Debit Card into our billing system, we will automatically charge this card at the start of your billing period when an invoice is issued.
9.8. Payment due date: All payments that are not collected automatically are due by the due date specified on the invoice and are considered delinquent after such date. You must pay or arrange payment of all amounts specified in any invoice by the due date as specified on the invoice, unless a different payment date is agreed upon in writing with us.
9.9. Failure to pay: If you fail to pay any invoice by the relevant due date, without limiting any other rights that we may have, we may:
(a) charge interest on amounts overdue at a rate of 2% per annum over the base overdraft facility rate charged by our bankers from time to time, compounded monthly, but not to exceed the maximum amount permitted by law, until payment has been made in full. Such interest shall be payable by you on demand;
(b) suspend your access to the Service, pending payment in full of all amounts outstanding; and
(c) charge you all costs incurred by us in connection with the recovery of the unpaid amounts, including the charges from debt recovery services.
9.10. Pro-rata invoicing: If you upgrade your Pricing Plan in the middle of your billing term, we will charge you pro-rata for the actual time spent on your new Pricing Plan.
9.11. Refunds: We will not refund any Fees paid in advance or provide any credits for partial periods or time unused with an open account. If this Agreement is terminated for any reason other than by you for our default, no portion of any prepaid Fees will be repaid to you in respect of the period following termination.
9.12. Preferential pricing or discounts: You may be or have been offered preferential pricing or discounts for the Fees. Eligibility for such preferential pricing or discounts is conditional upon your acceptance of responsibility for payment of any Fees. Without prejudice to any other rights that we may have under this Agreement or by law, we reserve the right to render invoices for the full (non-discounted) Fees due or suspend or terminate your use of the Service in the event that any invoices for those Fees are not paid in full by the due date for payment.
10. Intellectual property
10.1. Ownership of the Service: Title to, and all Intellectual Property Rights in the Service (included any software running on the Website), any content therein (excluding the Data) and any documentation relating to the Service remain the property of Frello (or its licensors). You (and all Invited Users) may not copy, reproduce, alter, modify, resell, mirror, or create derivative works of the Service, or our content on the Website, without our written permission.
10.2. Ownership of Customer Data: Title to, and all Intellectual Property Rights in the Customer Data remains your property (or the property of your Invited Users, as applicable).
10.3. Third Party Data: Third Party Data is owned by, and will remain owned by, the relevant third party.
10.4. Access to Data: Your access to Data via the Service is contingent on full payment of the Fees when due. You grant us a licence to use, copy, transmit, store, and backup your information and Data for the purposes of enabling you to access and use the Service and for any other purpose we consider necessary or desirable in connection with the Service and/or the Website (including as detailed in our Privacy policy).
10.5. Backup of Data: It is your responsibility to maintain copies of all Data. We adhere to best practice policies and procedures to prevent data loss, including a data backup regime, but we do not make any guarantees that there will be no loss of Data.
10.6. Feedback, suggestions and recommendations: You shall grant to us a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback that we receive from you or any Invited Users.
10.7. Anonymised and Aggregated Data: You grant to us a non-exclusive royalty-free worldwide and irrevocable license permitting us to copy, anonymize, aggregate, process and display Data to derive anonymous statistical and usage data, and data about the functionality of the Service, provided such data cannot be used to identify you or Invited Users (Anonymous Data). We may combine Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise (when so combined or incorporated, referred to as Aggregate Data). We may use Anonymous Data or Aggregate Data for any purpose whatsoever. We will be the owners of all right, title and interest in and to the Aggregate Data.
11. Privacy
11.1. Customer Data: Our access to and use of Customer Data is governed by our Privacy policy. However, you acknowledge that information transmitted over the internet is inherently insecure.
11.2. Personal Data: By agreeing to this Agreement, you also agree to the way we handle your (and your Invited Users’) Personal Data under our Privacy policy. Our Privacy policy forms part of this Agreement.
11.3. Privacy conditions: You must:
11.3.1. comply (and ensure compliance by your Invited Users) with all applicable privacy laws in connection with the collection, storage, use and disclosure of Personal Data of any person via the Service;
11.3.2. not (and ensure your Invited Users do not) use the Website or the Service in a way that violates (or may be considered inconsistent with) the privacy rights or civil liberties of any person (including in a way that prevents the exercise of them);
11.3.3. not (and ensure your Invited Users do not) share another person’s Personal Data without that person’s explicit permission;
11.3.4. obtain all consents from all Invited Users necessary under applicable laws, for us to process and/or disclose their Personal Data as necessary to perform the Service and otherwise comply with our obligations under this Agreement, and ensure that such consent is obtained from the correct person;
11.3.5. notify us without undue delay if any Invited User withdraws his or her consent, or any part of their consent, or objects to any processing of his or her Personal Data. This shall include any withdrawal of consent, or objection received by you (or your Invited User) from a person to whom the Personal Data relates; and
11.3.6. upon becoming aware of any unauthorised access, use or disclosure of Personal Data, or any other breach, or suspected breach, of your (or our) security safeguards, notify us without undue delay and provide timely information relating to the incident as it becomes known or as is reasonably requested by us.
11.4. Data deletion: You will ensure that all Personal Data is deleted from your account on the Service once it is no longer needed by you, subject to any retention obligations either party has at law.
12. Our warranties
12.1. Warranty: Without detracting from any other provision of this Agreement, Frello warrants that the Service generally conforms with the features described on the Website but otherwise the provision of, access to, and use of, the Service is on an “as is” basis and at your own risk.
12.2. Professional Services: We will provide the Professional Services to you with due care and skill, in accordance with all applicable laws and in accordance with all service requirements expressly agreed in writing by the parties.
12.3. Implied warranties excluded: All implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
12.4. Continuity: Frello does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including public telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Service. We are not in any way responsible for any such interference or prevention of your access or use of the Service.
12.5. Consumer guarantees: You warrant and represent that you are acquiring the right to access and use the Service for the purposes of your business (including providing such accessibility on to any Invited Users) and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Service or this Agreement.
12.6. Accuracy of data: We do not provide any warranties in respect of the accuracy or completeness of any Data, which the customer acknowledges is supplied by you, Invited Users or third parties. You acknowledge that the Service is dependent on the provision of accurate and complete data from you, Invited Users and third parties.
13. Customer warranties
13.1. Customer warranties: You warrant that:
13.1.1. you have obtained all necessary permissions, consents and authorisations from individuals to disclose the Data to us and for the collection, storage, disclosure and use of all Data and other information (including Personal Data) by us (and our third party service providers) in the manner anticipated by this Agreement;
13.1.2. use of the Data by (or on behalf of) us in accordance with this Agreement will not infringe any other person’s intellectual property or privacy rights or any law; and
13.1.3. you will comply (and will ensure your Invited Users comply) with all applicable laws in respect of your access to and use of the Service and Data, including all applicable laws in respect of the use of Personal Data of individuals.
14. Third party integrations, resources and websites
14.1. Third party resources: You acknowledge and agree that, when you (or any of your Invited Users) access or use any third party resource, information or website via the Service or Website (including, via an integration between the Service and a third party resource or website):
14.1.1. the relevant third party’s terms of use and privacy policy will apply to your (or your Invited Users’) access to or use of such third party resources, information or website;
14.1.2. we are not responsible for the availability of such external sites or resources, and do not endorse and are not liable for any content, information, advertising, products or other materials on or available from such websites or resources; and
14.1.3. we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such resources, information or websites.
15. Liability and indemnity
15.1. Liability cap: If you suffer loss or damage as a result of your use of the Service or any act or omission by us arising out of or in connection with this Agreement, then all claims by you against us are limited in aggregate to the fees paid by you in the minimum sign-on period, or if no minimum period applies, the fees for the 12 months immediately prior to the event giving rise to such claim, except where such liability arose out of our wilful default or gross negligence.
15.2. Exclusion of liability: Under no circumstances will either party (and in our case, our third party licensors, suppliers or resellers or any of their directors, officers or employees) be liable, whether in contract, equity, tort (including negligence, breach of statutory duty or otherwise) or any other theory of liability for any direct or indirect loss of profits, loss of revenue, loss of anticipated savings; or for any indirect, special or consequential loss whatsoever.
15.3. Reliance on Data: Despite any other provision to the contrary in this Agreement, we will not under any circumstances be liable to the Customer, any of its Invited Users or any third party in respect of the acts or omissions of the Customer in using or relying on any information created by or derived from the Service (including any Data), including any decisions in respect of the Customer’s business or customers arising from the use of the Service or Data, which remains the sole responsibility of the Customer.
15.4. Breach of Agreement: Neither party will be liable to the other (including under any indemnity) for any failure to comply with this Agreement or delay in complying with this Agreement to the extent caused directly by a breach of this Agreement by the other party or any unlawful or negligent act or omission of the other party or any of its personnel, contractors or representatives (including in the case of the Customer, any Invited Users).
16. Indemnity by you
16.1. Indemnity: You indemnify us against all claims, losses, proceedings, injuries, expenses or costs (including reasonable legal costs and reasonable enforcement costs) that we suffer or incur as a direct result of:
(a) your fraud or misrepresentation;
(b) a breach of law by you or a material breach by you of any term of this Agreement; or
(c) any claim by a third party that our possession or use of any Data in accordance with our rights under this Agreement (including, for clarity, our Privacy policy) infringes a third party’s intellectual property or privacy rights, is defamatory, objectionable, obscene or harassing, or is unlawful in any way, provided that you shall not be liable under this indemnity where the claims, losses, proceedings, injuries, expenses or costs were caused solely and directly by our negligence or our material breach of this Agreement or breach of law.
16.2. Cost mitigation: To the extent we are able, we will use our reasonable endeavours to mitigate the losses, injuries, expenses or costs we suffer or incur and for which you may become liable under this indemnity.
17. Confidentiality
17.1. Obligations: Each party will maintain the confidentiality of all Confidential Information of the other obtained pursuant to this Agreement. The provisions of this clause do not apply to any information which:
17.1.1. is public knowledge other than breach of this clause;
17.1.2. is received from a third party who is in lawful receipt of the information and is able to disclose it to the recipient without restriction;
17.1.3. is required by law to be disclosed; and
17.1.4. a party designates (by prior written consent) is not subject to these restrictions.
18. Termination
18.1. Termination for cause: Either party may terminate this Agreement immediately by notice in writing if a party:
18.1.1. is in breach of any material term of this Agreement and the breach is not capable of being remedied;
18.1.2. is in breach of any material term of this Agreement and, if the breach is capable of being remedied, has not remedied the breach within 10 working days of receiving notice of the breach from the other party;
18.1.3. becomes insolvent, goes into liquidation or has a receiver or manager appointed over any of its assets or makes any arrangement with its creditors, or becomes subject to any similar insolvency event in any jurisdiction.
18.2. Termination by us: We may also terminate this Agreement by notice in writing to you where:
18.2.1. required by law; or
18.2.2. we (acting reasonably) consider it necessary or desirable to do so to protect our interests or, the interests of anyone else and/or the security of the Service.
18.3. Termination for convenience: Either party may terminate this Agreement by giving the other at least 30 days written notice, however where your Pricing Plan subscription is subject to a minimum term, you cannot exercise this right during the minimum term.
18.4. Termination obligations: You agree upon expiration or termination of this Agreement:
18.4.1. to immediately cease to access or use (and ensure your Invited Users cease to access and use) the Service and any Confidential Information in your (or your Invited Users) possession or control;
18.4.2. to pay all relevant Fees and any other amounts owing under this Agreement up to the date of termination.
18.5. Trial Periods: Where a trial period applies, you will not be able to keep using the Service at the end of that Trial Period, unless you then go on to subscribe for the Service on a paid basis. No Data will be stored after completion of the trial period unless you then go on to a paid subscription. Service provided during the Trial Period are supplied on an “as is – where is” basis.
18.6. Accrued rights: Termination of this Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination.
18.7. Survival: Any terms expressed to survive or ordinarily intended to survive termination will survive termination of this Agreement.
19. Force majeure
19.1. No liability: Neither party shall be liable for any delay or failure to fulfil its obligations (excluding payment obligations) under this Agreement arising directly or indirectly from any circumstance beyond the reasonable control of the affected party (including acts of God, flood, earthquake, storm, fire, epidemic, pandemic, war, embargoes, riot or civil disturbance), provided that the affected party shall:
19.1.1. notify the other party as soon as practicable of the event causing the failure; and
19.1.2. use all reasonable endeavours to continue to perform its obligations and mitigate the effects of the event.
20. General
20.1. Entire agreement: This Agreement supersedes and extinguishes all prior agreements, representations (whether oral or written), and understandings and constitutes the entire agreement between you and Frello relating to the subject matter of this Agreement.
20.2. Waiver: If either party waives any breach of this Agreement, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
20.3. No assignment: You may not assign or transfer any rights under this Agreement to any other person without our prior written consent, which we shall not unreasonably withhold. We may assign by giving notice to you.
20.4. Governing law and jurisdiction: New Zealand law governs this Agreement and you submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement.
20.5. Disputes: The parties agree to use their best endeavours to promptly resolve any dispute or difference between them by way of good faith negotiations. If such good faith negotiations fail to resolve a dispute, either party may, at its option, require the other party to submit to mediation in New Zealand with assistance of a qualified mediator.
20.6. Severability: If any part or provision of this Agreement is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
20.7. Notices: Any notice given under this Agreement by either party to the other must be in writing (including by email, or via the Website or the Service) and will be deemed to have been given on transmission. Notices to Frello must be sent to support@getfrello.com or to any other email address notified by email to you by us. Notices to you sent by email will be sent to the email address you provided when setting up your access to the Service, or to any other email address notified by email to us by you.
20.8. Privity: For clarity, this Agreement is intended to be enforceable by and confer a benefit on all Invited Users for the purposes of part 2 subpart 1 (contractual privity) of the Contract and Commercial Law Act 2017. Despite this, a person who is not a party to this Agreement has no right to benefit under or to enforce any term of these Terms.
