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updated June 2007

ClearWiki Terms and Conditions

In this Agreement, “you” and “your” includes you and your employer, company or other legal entity. Any reference to “ClearWiki”, “we”, “us”, or “our” in this Agreement is a reference to ClearWiki Limited of Wellington, New Zealand.

If you do not agree to the terms of this Agreement you are not permitted to use the ClearWiki Services (as defined below).

If you are acting as an employee or entering into this agreement on behalf of a company or other legal entity, you agree that this Agreement will bind your employer or such entity, and you represent that you have authority to bind such employer or entity. If you do not have such authority you may not use the ClearWiki Services.

Changes to this Agreement

From time to time, we may change the terms of this Agreement (including the Acceptable Use Policy). Any change to the terms of this Agreement will become binding on you immediately at the time the new version of the Agreement is accessible as part of the ClearWiki Services. It is your responsibility to ensure that you are aware of the latest version of this Agreement. Any use of the ClearWiki Services after a change confirms your acceptance of the changes.

Definitions

In this Agreement, unless the context otherwise requires:

  • “Acceptable Use Policy” means the Acceptable Use Policy located on the ClearWiki website, as may be amended from time to time.
  • “Authorised Users” means the user or users authorised to access and use the ClearWiki Services, in relation to Your Wiki, under your subscription (which may be a free subscription) to the ClearWiki Services.
  • “ClearWiki Services” means the online services accessible via Your Wiki and the ClearWiki website (www.clearwiki.com), including, without limitation, the hosting and provision of access to Your Content.
  • “User ID” means the user ID, code and/or password that you use to access the ClearWiki Services.
  • “Your Content” means everything that you or any Authorised User creates by use of the ClearWiki Services or uploads, posts or transmits to or via Your Wiki or the ClearWiki Services (including, without limitation, all documents, files, text, images, audio, video, data, and information).
  • “Your Wiki” means the website that ClearWiki makes available to you as part of the ClearWiki Services you have subscribed to.

What you are licensed to do

Subject to the terms of this Agreement, and any notices and limitations displayed as part of the ClearWiki Services, you are granted a non-exclusive, non-transferable licence for you and any Authorised Users to access and use the ClearWiki Services.

This licence ends at the same time that your subscription to the ClearWiki Services comes to an end or this Agreement is terminated.

Except as set out above, you are not granted any other rights in relation to the ClearWiki Services.

What you must do

You must abide by the terms of the Acceptable Use Policy as may be amended from time to time, and which forms a part of this Agreement.

You must ensure that all Authorised Users comply with the Acceptable Use Policy. You must ensure that all Authorised Users comply with your obligations under this Agreement in relation to the ClearWiki Services, Your Content and User ID. You are also responsible for all acts and omissions of the Authorised Users in relation to the ClearWiki Services, Your Content and User ID.

Disclaimers

The ClearWiki Services are provided on an “as is” and “as available” basis. ClearWiki does not guarantee, warrant or represent that the ClearWiki Services will be uninterrupted, reliable, timely, private, secure, free of errors, viruses or other harmful things, always available or that any problems with the ClearWiki Services can or will be corrected. Sometimes the ClearWiki Services will be unavailable or your use will be limited because of maintenance or other work that is being undertaken.

The provision of the ClearWiki Services may result in Your Content being lost or damaged. ClearWiki does not take any responsibility for any such loss or damage and is not required to restore, repair, or replace any of Your Content that is lost or damaged. It is your responsibility to take security precautions and maintain such back-up data as is necessary to quickly and accurately replace or repair any of Your Content that is lost or damaged from any cause.

We may monitor and delete Your Content if required by law or if we consider it necessary or reasonable to do so to protect our proper interests or the interests of anyone else. ClearWiki is not responsible for the accuracy of Your Content. ClearWiki does not endorse any of Your Content or the content on any other ClearWiki wiki.

All warranties in relation to the ClearWiki Services, whether express or implied, are excluded to the fullest extent permitted by law. If you access and use the ClearWiki Services for the purposes of a business you agree that the guarantees and remedies provided in the Consumer Guarantees Act 1993 do not apply.

Limitation of Liability

ClearWiki and our suppliers, directors, employees and agents (“Related Parties”) will not be liable to you, any Authorised User, or any third party, for any:

  • loss or damage to information or data (including, without limitation, Your Content) from any cause;
  • breach of security or privacy;
  • loss of profit, opportunity or saving;
  • delay or failure in the supply of the ClearWiki Services;
  • lapse in, or cancellation of, your User ID; or
  • incidental, indirect, special or consequential loss or damage.

In any event, if ClearWiki or our Related Parties are liable to you for any reason, and that liability has not otherwise been excluded by this Agreement, then the maximum aggregate liability of ClearWiki and our Related Parties to you arising out of all claims for loss and/or damages for any cause will under no circumstances exceed the value of the subscription fees paid by you to ClearWiki in the 12 months prior to the time that any liability first arises.

The limitations and exclusions of liability in this Agreement shall apply however liability arises, whether in contract, tort (including negligence), breach of statutory duty or otherwise.

ClearWiki will not be responsible or liable for any failure or delay to perform our obligations due to any cause that is beyond our reasonable control or any failure by you to perform any of your obligations under this Agreement. In such circumstances, and without limiting any other right or remedy of ClearWiki, ClearWiki is entitled to recover from you any reasonable additional costs of fulfilling our obligations under this Agreement.

Changes to the ClearWiki Services

We may, at our discretion, delete, replace, add to or otherwise amend the whole, or any part of, any of the ClearWiki Services at any time without notice to you.

ClearWiki reserves the right to increase the fees it charges for the ClearWiki Services. If you don’t agree to the new fees you can stop using the ClearWiki Services and we will shut down Your Wiki.

Intellectual property rights

  • You own Your Content:  You and/or your providers (as the case may be) own the intellectual property rights in Your Content.  Just like you need a licence from ClearWiki to use the ClearWiki Services, ClearWiki needs a licence from you so it can do things such as display Your Content to Authorised Users and place advertising on Your Wiki. You hereby grant to ClearWiki, at no charge, an irrevocable, perpetual, transferable and worldwide licence to use, analyse, modify, adapt, develop and display Your Content, and grant sublicenses of any of those rights to other persons, for any purpose related to this Agreement (which includes: enabling ClearWiki and our suppliers to provide the ClearWiki Services; and placing advertising on Your Wiki if that's part of your subscription plan).
  • ClearWiki IP:  ClearWiki and/or our third party providers (as the case may be) own all rights, title and interest (including copyright, trademarks, and other intellectual property rights) in and to Your Wiki (except for Your Content), ClearWiki's own website, the ClearWiki Services, and any software or materials underlying the ClearWiki Services (including, without limitation, in the user interface, design, and “look and feel” of the ClearWiki Services) (collectively called “ClearWiki IP”). You are permitted to use ClearWiki IP that we make available to you, only for the purpose of using the ClearWiki Services in accordance with this Agreement.    All: (a) new intellectual property created by or on behalf of ClearWiki under or in relation to this Agreement; and (b) modifications, adaptations, developments or improvements to any ClearWiki IP created by either party under or in relation to this Agreement, shall, as it is created, become the sole and exclusive property of ClearWiki.  You shall do all acts and things that are reasonably necessary to give effect to the provisions of this paragraph.
  • No other rights:  Just to be clear, you do not under this Agreement obtain any ownership of any copyright, trademarks or other intellectual property rights in or to any ClearWiki IP.

Indemnity

Without limiting any other right or remedy of ClearWiki, you agree to fully indemnify and keep indemnified ClearWiki and our Related Parties against all claims, proceedings, actions, liabilities, damages, losses, costs and expenses (including full legal costs) arising out of or in any way connected to the use by you, any Authorised User, or any third party, of the ClearWiki Services, any breach by you of this Agreement, or anything else you do or do not do in relation to the ClearWiki Services (in each case a “Claim”). This includes any Claim that arises because of any problem with the ClearWiki Services and any Claim that arises in relation to Your Content.

Privacy policy

ClearWiki collects and holds personal information from you when you register and use the ClearWiki Services. You have rights to access and correct this information under the Privacy Act 1993.

We may store and supply the information we collect from you with our service providers.

Your personal information is used: to register your User ID to access the ClearWiki Services, to analyse your use of the ClearWiki Services; to provide you with information about ClearWiki products and services we think may be of interest to you; and may be used to place targeted advertising within the ClearWiki Services; and may also be used to notify you of changes to the ClearWiki Services or to this Agreement.

When you use the ClearWiki Services a cookie (which is a small text file) will be loaded onto your computer. The purpose of the cookie is to identify you during your session and to provide timezone information. You can change the settings on your browser so that you will not receive any cookies. However, if you choose to do this you may not be able to use the ClearWiki Services.

If you haven’t correctly provided your information to us, we may not be able to properly provide the ClearWiki Services to you, or charge you correctly; we may also terminate this Agreement with you.

Please email info@clearwiki.com if you have any questions or concerns about the personal information that we hold about you.

Termination, suspension and restriction

ClearWiki reserves the right, at our sole discretion, to terminate this Agreement and your use of the ClearWiki Services at any time for any reason without notice.

If we think you have breached any term of this Agreement, or that an Authorised User has breached the Acceptable Use Policy, we may:

  • immediately terminate this Agreement and your use of the ClearWiki Services without notice to you; or
  • suspend or restrict your access and use of the ClearWiki Services without notice to you.

We may also end, suspend, restrict, or monitor your access to the ClearWiki Services or Your Content if required by law or if we consider it necessary or reasonable to do so to protect our proper interests or the interests of anyone else.

Taking any of these steps does not limit any other rights or remedies that may be available to us.

Termination of this Agreement does not affect any rights or remedies that have accrued up to the date of termination nor any of the provisions that are by their nature intended to survive termination.

If this Agreement is terminated, ClearWiki has no obligation to maintain, or supply you or anyone else with, Your Content; and ClearWiki is permitted to delete Your Content.

General

This Agreement (including the Acceptable Use Policy as it may be amended from time to time) constitutes the entire agreement between you and us in relation to the ClearWiki Services and Your Content and supersedes all previous agreements, arrangements, understandings or representations relating to the ClearWiki Services and Your Content.

We may provide any notice to you in relation to this Agreement by displaying this notice as part of the ClearWiki Services.

If at any time any provision of this Agreement is or becomes illegal or unenforceable the remaining provisions will continue to be binding. A waiver of any of the terms of this Agreement must be in writing and signed by one of our senior managers (or equivalent). No delay or failure by us to exercise a right or remedy under this agreement prevents the exercise of that or any other right or remedy on that or any other occasion.

You may not subcontract, assign, or transfer any of your rights or obligations under this Agreement. This Agreement is for the benefit of, and enforceable by, any third party provider of any part of the ClearWiki Services. Despite this, we can change the terms of this Agreement without the consent or agreement of those third party providers.

This Agreement is governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts for all disputes under or in relation to the ClearWiki Services or this Agreement.