Recordbase Terms of Service

1 Definitions and interpretation

Here we define some of the key terms we use to describe our products and services – this is in addition to terms we’ve defined in the body of the Agreement.

1.1 Acceptable Use Policy – so that we are all super clear on how Recordbase can and can’t be used, we have a few rules that You and Your Active Users must follow (as well as complying with the Agreement). These are detailed in Appendix 1.

1.2 Additional Services means any service provided, or work undertaken, by Wild Bamboo for You other than providing You the access to Recordbase under the Agreement. Additional Services includes (without limit) any implementation (set up) work required to enable Your access to Recordbase in accordance with Your agreed requirements, providing training on Recordbase, development work, custom report creation, custom form creation, Recordbase configuration, or resolution of issues caused by You.

1.3 Agreement means this Agreement, its appendices (including the Acceptable Use Policy), any Statement of Work under it, and the User Guide.

1.4 Agreement Details means the section at the front of this Agreement that set out Agreement-specific details that are relevant to You.

1.5 Data means Your data and Your clients’ data that You or Your Active Users input into Recordbase, including data that details:

• contact details of clients
• client related general notes and documents
• client related medical notes and documents
  • client related medication and medical test results
• organisational process information relating to incidents, accidents and complaints
• all opinions, recommendations, forecasts and comments
• other content uploaded by You or Your Active Users.

1.6 Force Majeure means a circumstance beyond the reasonable control of You or Wild Bamboo that results in either of us being unable to perform an obligation under the Agreement. Such circumstances include, but are not limited to:

• acts of ‘God’, lightning strikes, earthquakes, floods, storms, explosions, fires, pandemic, and any natural disaster; or
• acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, communication lines failures, sabotage and revolution.
  • But it does not include a lack of funds for any reason.

1.7 Hourly Rate means the rate set out in the Agreement Details (as that rate may be adjusted under clause 5.7).

1.8 Personal Information means information about an identifiable, living person, including personal data, personally identifiable information and equivalent information under applicable privacy and data protection laws.

1.9 Recordbase means Wild Bamboo’s software as a service offering known as “Recordbase”, and includes any enhancement, modification, or derivative work.

1.10 Personnel means officers, employees, contractors and agents of a party, but a reference to Your personnel does not include Wild Bamboo.

1.11 Standard Business Hours means 0800 to 1630, Monday to Friday (but not on public holidays). By public holidays, we mean public holidays in the Holidays Act 2003, like Good Friday and Christmas Day.

1.12 Support Services mean the work we do to ensure Recordbase remains available during Standard Business Hours.

1.13 User Guide means the user guide made available by Wild Bamboo within Recordbase and as updated by us from time to time.

1.14 Website is VERY self-explanatory, but to keep our lawyers happy we’ll specify here that it refers to our website located at www.wildbamboo.co.nz.

2 Additional services

2.1 Where we agree with You to provide Additional Services, both of us must agree a Statement of Work setting out the details for those Additional Services, including the fees (generally, based on the Hourly Rate) and expenses payable for that work.

2.2 To ensure You access Recordbase in the way that we have discussed before we both signed the Agreement, Wild Bamboo and You will need to agree a Statement of Work to provide implementation services and training, including the fees and expenses for those items. Your access to Recordbase will only start once those implementation services and training are complete. To avoid doubt, we don’t provide data migration services, or the development of custom reporting as part of the implementation services, but we can provide them as extra services.

 

3 Your Recordbase access and use rights 

3.1 In exchange for the subscription fee set out in the Agreement Details (Subscription Fee) and until the Agreement ends, from the date that the implementation services and training described in clause 2.2 are complete, Wild Bamboo will provide You and Your Active Users with access to Recordbase on the terms of the Agreement and in compliance with New Zealand law (including the Privacy Act 2020).

3.2 So we can ensure Recordbase is working well, Wild Bamboo may change the functionality and capabilities of Recordbase from time to time at our discretion (including how it reports Data).

3.3 You cannot transfer Your rights under the Agreement to any other person without prior written consent of Wild Bamboo.

3.4 Wild Bamboo will provide Support Services remotely and between Standard Business Hours.

 

4 Your use of Recordbase

4.1 Recordbase is simply a place to store and manage Your Data on Your behalf. You are responsible for everything. You and Your Active Users do with Your Data on Recordbase. You will use Recordbase with the necessary skill and judgement required for the safety and wellbeing of Your clients (and You confirm that You have this skill and knowledge). You will comply with all applicable laws (like the Privacy Act 2020 and any applicable code or guideline relating to health information) and codes of conduct when You access and use Recordbase and any Data. Without limit, this means You will:

a. ensure all entries, records or amendments that You (and Your Active Users) make to the Data are accurate and reliable.

b. ensure that all Active Users are properly authorised to use Recordbase and will provide details of all Active Users to Wild Bamboo on request.

c. ensure all usernames and passwords required to access Recordbase are kept secure and confidential and only used by the applicable Active Users, and they are not shared. You must immediately reset an Active User password where there has been a breach of security and immediately notify Wild Bamboo. All Active Users must be correctly identified.

d. not attempt to obtain unauthorised access to, copy, or reverse engineer Recordbase or any system or network used to make Recordbase available, including not attempting to access any data or information to which You do not have access rights.

e. not attempt to damage or undermine the security or integrity of Recordbase, including systems or networks used to make Recordbase available.

f. not use or misuse Recordbase in any way which may impair the functionality of Recordbase or impair the ability of other users to use Recordbase.

g. only permit Active Users to have access to Recordbase.

h. not use Your knowledge of Recordbase to create a product, service or solution that competes with Recordbase.

4.2 You will be liable for all interpretations, opinions, recommendations, forecasts or comments made, or actions taken based on, or set out in, Your Data.

4.3 You must (and must ensure Your Active Users) use Recordbase:

a. in accordance with the User Guide.

b. only for the purpose of managing Data for Your internal business, and lawful, purposes.

c. in compliance with the terms of the Agreement, including (without limit) the Acceptable Use Policy.

4.4 If an Active User breaches the Agreement (including the Acceptable Use Policy), that breach will be treated as a breach of the Agreement by You.

4.5 You are responsible for obtaining all licences, authorisations and consents required for You and Your Active Users to use Recordbase, including to use, store and input Data into, and process and distribute Data through, Recordbase.

5 Fees and Payments

5.1 You must pay us the Subscription Fee and any other fee or expense set out in an Appendix or a Statement of Work.

5.2 All fees (including the Subscription Fee) and Hourly Rate exclude GST, which You must pay on taxable supplies under the Agreement.

5.3 We will provide You with valid GST invoices for all fees due under the Agreement. Fees and other amounts are payable as follows.

a. Subscription Fees are payable monthly in arrears based on the number of Active Users in that month. This means your Subscription Fees might change each month to reflect your Active Users. Please note a minimum number of Active Users applies (see the Agreement Details for this).

b. A Statement of Work may set out the payment terms for fees and expenses under that Statement of Work.

c. Where there are no payment terms for a fee or expense, they are payable monthly in arrears.

5.4 Payment is due on the 20th of the month following the date of invoice and all payments need to be made in New Zealand dollars and without any set-off or deduction.

5.5 If payment is not received on the due date of payment, Wild Bamboo may:

a. charge interest on outstanding payments at a rate 2% p.a. higher than the interest rate applicable to Westpac Bank business overdraft accounts; or

b. cancel or suspend Your and Your Active Users’ access to Recordbase without notice. You will still be required to pay the outstanding payments plus interest before we reinstate access.

5.6 The Fees under the Agreement are non-refundable.

5.7 We may change what we charge for the Subscription Fee or the Hourly Rate if we provide You with 90 days or more notice of any increases in charges. If You do not agree to the change, You may terminate the Agreement provided You give no less than 60 days’ notice before the date that the increases will take effect (time being of the essence). If the Subscription Fee and/or the Hourly Rate is changed under this clause, the changed Fee and/or Rate will automatically become the Fee or Rate set out the Agreement Details and/or Statement of Work.

6 Intellectual property rights

6.1 Wild Bamboo and its licensors own the title and all intellectual property rights in Recordbase, the services provided under the Agreement, all underlying systems used to make available Recordbase, the User Guide, the Acceptable Use Policy, and any other information or material provided in relation to Recordbase, including any modification, enhancement, or derivative work of all of those items (e.g. an add-on developed as part of implementation services or under a Statement of Work). You will not contest or dispute that ownership.

6.2 You own Your Data.

6.3 If You give us feedback on Recordbase (e.g. comments, ideas or suggestions), You agree that Wild Bamboo owns that feedback and can use it for any purpose.

6.4 You and Your Active Users must not use any trademark, trade name, domain name or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any trademark, trade name domain name or commercial designation used by Wild Bamboo.

 

7 Confidential information and Data

7.1 The terms of the Agreement, and any information that is obtained from the other party during the Agreement, are confidential. Recordbase is Wild Bamboo’s confidential information. Your Data is Your confidential information.

7.2 Each Party agrees that, without the prior written consent of the other party, it will:

a. keep confidential at all times the confidential information of the other party;

b. effect and maintain adequate security measures to safeguard the other party’s confidential information from unauthorised access or use; and

c. disclose the other party’s confidential information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s confidential information is aware of, and complies with, the provisions of this clause 7.2.

 

7.3 Clause 7.2 does not apply to the extent any information that is already public knowledge, is required to be shared by law, or needs to be used or disclosed for the purpose of performing the Agreement or exercising a right under the Agreement.

7.4 You acknowledge that:

a. Wild Bamboo may require access to the Data to exercise its rights and perform its obligations under the Agreement; and

b. to the extent that this is necessary but subject to clause 7.2, Wild Bamboo may authorise a member or members of its personnel to access the Data for this purpose.

7.5 You must arrange all consents and approvals that are necessary for Wild Bamboo and its personnel to access the Data as described in clause 7.4.

7.6 You acknowledge and agree that, to the extent Data contains Personal Information:

a. in collecting, holding and processing that information through Recordbase and otherwise in accordance with the Agreement, Wild Bamboo is acting as Your agent, service provider, and/or data processor for the purposes of applicable privacy and data protection laws (including the Privacy Act 2020).

b. You are responsible for obtaining all necessary consents from the relevant individual to enable Wild Bamboo to collect, use, hold and process that information in accordance with the Agreement and applicable law. If Your clients and customers are UK-based, this consent must be explicit and comply with GDPR and all other data protection laws in the UK. On request, You must provide written confirmation to Wild Bamboo that You have these explicit consents.

7.7 Wild Bamboo backs up all Data stored on Recordbase in line with good practice. But You agree to have a suitable business continuity plan in the event that you are unable to access Recordbase for any reason.

7.8 You agree that Wild Bamboo may store Data (including any Personal Information) in secure servers in New Zealand and Australia and may access that Data (including any Personal Information) in those territories from time to time.

 

8 Liability

8.1 Wild Bamboo has no control over the accuracy of Your Data and You agree to take full responsibility for verifying the Data before relying upon it or allowing any third party to rely on it.

8.2 To the maximum extent permitted by law, Wild Bamboo does not make any warranties of any kind, such as merchantability, quality, or fitness of purpose of Recordbase or the services we will provide to You whether expressed or implied by statute or otherwise. You agree that Your access to Recordbase and the acquisition of other services under the Agreement is for business purposes. The Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to Wild Bamboo’s making available of Recordbase or the Agreement.

8.3 Wild Bamboo provides Recordbase to You “as is” and we cannot guarantee that Recordbase or the Data is error-free, or that access to Recordbase will be uninterrupted, secure, or free from viruses or other harmful code. We also do not guarantee that Recordbase or any service will meet Your requirements or a particular purpose (including meeting any statutory role or responsibility that You may have).

8.4 To the maximum extent permitted by law but subject to clause 8.6, Wild Bamboo has no liability or responsibility to You for Your (or an Active User’s) access to and use of Recordbase or for any breach of the Agreement by Wild Bamboo.

8.5 Without limiting clause 8.4, Wild Bamboo is not liable to You for any:

a. a.loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or

b. consequential, indirect, incidental or special damage or loss of any kind.

8.6 If You suffer loss or damage as a direct result of Wild Bamboo’s negligence, then Wild Bamboo’s maximum aggregate liability under or in connection with the Agreement for that negligence must not exceed in any 12- month period from the start date (or the anniversary of that date) Your Subscription Fee paid in the previous 12-month period.

9 Indemnity

9.1 You fully indemnify Wild Bamboo against all actions, proceedings, costs, claims, demands, liabilities, loss and expenses (including legal fees on a solicitor and own client basis) that Wild Bamboo suffers or incurs related to:

a. any information, data or material You produce and derived or obtained from the Data or Recordbase; and

b. any breach by You of any of the provisions of the Agreement (including without limit clause 7, or the Acceptable Use Policy).

10 Term and Termination

10.1 The Agreement starts on the date set out in the Agreement Details (start date) and, unless terminated in accordance with the Agreement, continues until either You or Wild Bamboo give at least 90 days notice that the Agreement will end.

10.2 You or Wild Bamboo can terminate the Agreement by giving notice to the other party if the other party:

a. is in breach of any term, condition or provision of the Agreement and fails to remedy the breach within 14 days of having been made aware of it in writing; and

b. is going into liquidation (other than for the purposes of a bona fide reconstruction or amalgamation), is unable to pay its debts, ceases to continue in business for any reason, or becomes subject to any analogous proceeding or administration

10.3 Where Wild Bamboo has a right to terminate the Agreement, it can (instead of (or as well as) exercising its termination right) suspend Your and/or Your Active Users’ access to Recordbase without notice.

10.4 On termination of the Agreement:

a. You (and Your Active Users) must immediately cease Your access to, and use of, Recordbase; and

b. Wild Bamboo will provide You a copy of Your database in common format and then delete all Data, files or other information stored in Your Recordbase account on confirmation of receipt.

10.5 The following items will still apply following the termination or expiry of the Agreement:

a. Wild Bamboo’s right to recover any outstanding costs, fees and other rates;

b. each party’s rights and remedies in relation to any breach of the Agreement;

c. Your obligations and responsibilities regarding confidential information, data (including Data) consents and intellectual property; and

d. the limitation of liability in clause 8.

11 No Breach for Force Majeure events

11.1 If either You or Wild Bamboo is affected by Force Majeure, it will notify the other party as soon as possible and let them know the nature and extent of that Force Majeure.

11.2 The party affected by the Force Majeure will not incur liability for anything that might otherwise be a breach of the Agreement arising because of the Force Majeure. But, the affected party must work hard to overcome the effects of the Force Majeure and to continue to perform the Agreement.

11.3 If the Force Majeure exists for a continuous period of three months or more, You and Wild Bamboo will negotiate how to ease the effects of the Force Majeure, fairly and reasonably.

12 Notices

12.1 Any notice or other communication under the Agreement must be in writing, addressed to the intended recipient and sent to the correct email or postal address, set out in the Agreement Details or as updated by a party by giving notice in accordance with this clause.

12.2 No communication is effective until it’s received – which is deemed to be:

a. in the case of a letter, when delivered by personal delivery or 5 business days after it is posted in the mail; and

b. in the case of email, at the time of transmission (but the party sending the email must be able to produce a printed copy showing it was sent to the right email address).

13 Negotiating any disputes

13.1 You and Wild Bamboo agree to immediately notify the other party of any dispute in writing and to initially try to settle any dispute by having full, open and honest discussions.

13.2 If a dispute is not settled within 14 days of being notified and before taking any court action, the matter shall be referred to a suitable independent mediator in accordance with the terms of the NZ Resolution Institute Standard Mediation Agreement at a fee to be agreed by both of us. If we can’t agree on the mediator and/or their fees within a further 7 days, the mediator will be chosen, and the mediator’s fee determined, by the chairperson for the time being of the Resolution Institute (or their nominee). The mediation will be held in Hamilton.

13.3 All costs and expenses of the mediator will be covered equally by both parties.

13.4 Nothing in the Agreement shall prevent either You or Wild Bamboo from raising any proceedings in relation to a dispute from which they require urgent interim relief.

14 New Zealand law governs

14.1 The laws of New Zealand apply to the Agreement and its interpretation. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand if there is a dispute connected with the Agreement that is not resolved under clause 13.

15 General terms

15.1 The Agreement details the entire agreement and understanding between You and Wild Bamboo. Except for where Wild Bamboo can update documents (e.g. the Acceptable User Guide) and the Fees and Hourly Rates under the Agreement, any written modifications or amendments will be effective once signed by both parties.

15.2 Subject to any conditions, the Agreement shall be binding to the benefit of the parties’ successors, trustees, permitted assigns or receivers.

15.3 The parties agree to do everything they each need to in order to give effect to the intent and purpose of the Agreement.

15.4 Wild Bamboo will separately request consent in writing from You (not to be unreasonably withheld) for marketing Recordbase and Wild Bamboo, including referencing You in any marketing material.

15.5 Each party may sign different copies of the Agreement which, together, comprise the same agreement.

15.6 Except for You, no one (including no Active User or no client of Yours) has a right to a benefit under, or to enforce, the Agreement against Wild Bamboo.

Appendix 1: Wild Bamboo Acceptable Use Policy

Wild Bamboo would like to make sure Recordbase is used responsibly. We take acceptable use of Recordbase and other Wild Bamboo services very seriously. Seriously, this is a very serious section of the Agreement.

Data entered in Recordbase by You or an Active User, and Your (and Your Active Users’) use of Recordbase must meet the following rules.

• It must not be illegal, threatening, abusive, harassing, defamatory, irresponsible, disruptive, deceptive, fraudulent, invasive of another's privacy, tortuous, obscene, sexually explicit or graphic.
• It must not breach any third party’s intellectual property or other rights.
• It must not harass, degrade, or intimidate an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, disability, or any other human right.
• It must not constitute unauthorised or unsolicited advertising, junk or bulk email (also known as ‘spamming’), chain letters, any other form of unauthorised solicitation, or any form of lottery or gambling.
• It must not contain software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorised access to any data or other information of any third party.

Wild Bamboo has the right to remove any Data that does not comply with this policy or is otherwise harmful or objectionable in Wild Bamboo’s reasonable opinion. Wild Bamboo will not be liable for any failure, delay, damages or results in removing Data using this right.

You agree that Your (and Your Active Users’) access to and use of Recordbase may be suspended by Wild Bamboo immediately and without notice if Wild Bamboo considers You or an Active User has, or is likely to, breach this policy.

Changes to this Policy

Wild Bamboo reserves the right to make reasonable changes to this policy and will provide You with 30 days notice of any changes.