IMPORTANT – PLEASE READ

The Building Materials Information System (BMIS) is owned and operated by Datanest Software Limited. The BMIS provides access to a system to facilitate a Person Conducting a Business of Undertaking (PCBU) in meeting part of their requirements under the Health and Safety (Asbestos) at Work Regulations 2016 (Regulations). While Datanest Software Limited will try to ensure that the BMIS is free from error, Datanest Software Limited does not warrant the accuracy, adequacy or completeness of the BMIS or suitability for your intended use(s) and in particular, that it will meet the compliance requirements for a PCBU under the Regulations. The BMIS is not intended to be a substitute for commercial judgment or professional advice and you should not act in reliance upon it without first obtaining professional advice as to your particular circumstances.

Please read these Terms and Conditions carefully before using the BMIS.

Your access to and use of the BMIS is conditional on your acceptance of and compliance with these Terms and Conditions. These Terms and Conditions apply to all users of the BMIS. By accessing or using the BMIS you agree to be bound by these Terms and Conditions. If you do not accept any part of these Terms and Conditions, then you may not access the BMIS.

1. DEFINITIONS AND INTERPRETATION

1.1 In these Terms and Conditions, unless the context indicates the contrary:

BMIS means the Building Materials Information System (BMIS) owned and operated by Datanest Software Limited and includes the website at the domain bmis.nz, it's servers and documentation.

Client means any user who Datanest Software Limited has given permission to access and use the BMIS in accordance with these Terms and Conditions.

Client Data means any data loaded onto the BMIS by the Client.

Datanest means Datanest Software Limited, a New Zealand registered Software Limited liability company.

Fee means the sum payable annually.

GST means the tax imposed under the GST Law.

GST Law means Goods and Services Tax Act 1985 (NZ) and any amendments thereof.

Insolvency Event in relation to a party (insolvent party) means:

1. the insolvent party ceases or takes steps to cease to conduct its business in the normal manner;
2. the insolvent party enters into or resolves to enter into any arrangement, composition or compromise with or assignment for the benefit of its creditors or any class of them;
3. the insolvent party is unable to pay its debts when they are due or is deemed under the Companies Act 1993 (NZ) to be insolvent;
4. a liquidator or provisional liquidator is appointed to the insolvent party or a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of the assets or undertakings of the insolvent party; or
5. an application or order is made or a resolution is passed of the winding up of the insolvent party.

Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trademarks, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967 and includes all rights in any software including, without limitation, in source and object codes.

Tax Invoice has the meaning it has in the GST Law.

Term means the period during which the Client has the right to access and use the BMIS pursuant to these Terms and Conditions.

Terms and Conditions means these Terms and Conditions as may be amended by Datanest Software Limited from time to time.

Third Party Software means computer programs not produced by Datanest Software Limited which Datanest Software Limited is not authorised to sub-license to the Client or which require terms and conditions other than those applicable to Datanest Software Limited’s own software but which Datanest Software Limited has chosen to incorporate or integrate in the Licensed Software.

1.2 In these Terms and Conditions unless the contrary intention appears:

1. the singular includes the plural and vice versa;
2. a reference to these Terms and Conditions or another instrument includes any variation or replacement of them;
3. a reference to a clause number is a reference to a clause in these Terms and Conditions;
4. the word “person” includes a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any government agency;
5. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it, and consolidations, amendments, re-enactments and/or replacements of any of them;
6. if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
7. a reference to a month is to a calendar month;
8. a reference to a day is to a calendar day;
9. a reference to a thing (including any amount) is a reference to the whole and each part;
10. the verb “include” (in all its parts, tenses and variants) is not used as, nor is it to be interpreted as, a word of limitation;
11. the words “including”, “for example” or “such as” do not limit the meaning of the words to which the example relates or examples of a similar kind;
12. New Zealand dollars, dollars, NZ$, or $ is a reference to the lawful currency of New Zealand; and
13. headings are inserted for convenience and do not affect the interpretation of these Terms and Conditions.
2. ACCESS TO AND USE OF BMIS

2.1 Datanest Software Limited grants to the Client a non-exclusive, non-assignable license to access and use the BMIS [and the content on the BMIS] for the Client's internal operational and statutory functions and purposes in accordance with these Terms and Conditions.

2.2 The Client agrees to use the BMIS in a manner that complies with all applicable laws and regulations and that does not infringe Datanest Software Limited's rights, nor the rights of anyone else, nor restricts or inhibits their use and enjoyment of the BMIS.

2.3 The Client may not, without Datanest Software Limited's prior written permission, in any form or by any means:

1. adapt, reproduce, copy, store, distribute, print, display, perform, publish or create adaptions from any part of the BMIS (including the content of the portal);
2. use the content of the portal to promote the Client's business
3. commercialise, copy, or on-sell any information, or materials obtained from any part of the BMIS (including the content of the portal).

2.4 The Client may not assign or sub-contract any of its rights or obligations under these Terms and Conditions to any third party without Datanest Software Limited's prior written approval.

2.5 The Client is responsible for ensuring that all of its agents, employees and contractors who are approved to use the BMIS in accordance with clause 2.4 above (Authorised Users) comply at all times with these Terms and Conditions as if they were bound directly to these Terms and Conditions.

2.6 The Client acknowledges and agrees that Datanest Software Limited does not provide any data, including but not limited to relevant work health and safety legislation, for use with the BMIS. The Client is responsible for adding relevant information for use with the BMIS.

2.7 Datanest Software Limited will host all of the Client’s Data entered into the BMIS on Datanest Software Limited’s cloud server or a third party service. While Datanest Software Limited's cloud server and/or third party server is regularly backed up and while Datanest Software Limited will use its best endeavours to maintain effective security measures to safeguard Client Data from unauthorised access, use, copying or disclosure, Datanest Software Limited is not responsible for the security of any Client Data entered on the BMIS.

3. REGISTRATION AND SECURITY OF PASSWORDS

3.1 By signing up for BMIS, the Client agrees that all information provided during the registration process is true and accurate and the Client will update this information as required in order to keep it current, complete and accurate.

3.2 During the registration process, the Client will be issued a password for the BMIS. The Client agrees to be fully responsible for activities that relate to its Client account including the actions of all Authorised Users and for maintaining the confidentiality of its password. If the Client has any reason to believe that its password has been obtained by someone else without its consent, the Client must inform Datanest Software Limited immediately to disable the Client's account if required.

4. OWNERSHIP OF INTELLECTUAL PROPERTY

4.1 The Client acknowledges that all Intellectual Property (IP) Rights of the services provided, the website and any documentation relating to the services and website remain the property of Datanest Software Limited (other than Third Party Software).

4.2 All intellectual property rights in the data remain property of the client. However, client access to the data is contingent on full payment of the Fee when due. The client grants Datanest a licence to use, copy, transmit, store, and back-up client information and data for the purposes of enabling the client to access and use the services and for any other purpose related to provision of services to the client.

4.3 The client must maintain copies of all data entered into or uploaded to the service. Datanest Software Limited adheres to best practice to prevent data loss, including a daily system data back-up, but does not make any guarantees that there will be no loss of data. Datanest Software Limited expressly excludes liability for any loss of data no matter how caused.

5. CONTINUITY OF SERVICE

5.1 Datanest Software Limited will endeavor to provide access to the BMIS [on a continuous basis], subject to any necessary downtime that may be required for system maintenance, repairs and updating, or loss of access resulting from matters beyond Datanest Software Limited's control.

5.2 Datanest Software Limited reserves the right to suspend, terminate or otherwise alter the Client's access to the BMIS at any time and without notice. Particularly in cases of:

1. periodic maintenance and updates; or
2. where a threat has been identified to the security of the BMIS.

5.3 Datanest Software Limited will not be held liable for any loss which the Client or the Client's business suffers as a result of any loss of continuity of the BMIS.

5.4 Access to the BMIS also relies on the provision of third party services to the Client including internet access. The Client agrees that Datanest Software Limited will also not be liable for any failure in the BMIS caused by failures of third parties either in part or in full.

6. WARRANTIES

6.1 Except as expressly provided in these Terms and Conditions, Datanest Software Limited makes no express warranties or representations. To the extent permitted by law, Datanest Software Limited excludes all implied warranties that would otherwise be implied by law into these Terms and Conditions including but not limited to, any warranties or merchantability, fitness for a particular purpose and non-infringement.

7. PRIVACY

7.1 Datanest Software Limited collects information from and about the Client, including but not limited to the Client’s name and contact details, upon registering for the BMIS. Such information is provided by the Client voluntarily. Datanest Software Limited may also collect and store information about the Client's use of the BMIS, for example, the pages accessed and how many times the Client accesses the BMIS.

7.2 Datanest Software Limited will store the information referred to in clause 7.1 on its secure servers in data centres of its choice, including those provided by third parties. Any such information will only be used by Datanest Software Limited for its statistical purposes. It will never be supplied to anyone without first obtaining the Client’s consent, unless Datanest Software Limited is obliged or permitted by law to disclose it.

8. FEES

8.1 Datanest Software Limited agrees to grant the Client the right to access and use in consideration of the Client’s payment of the Fee.

8.2 Datanest Software Limited may provide the Client with the ability to pay the Fee by credit card. All Fees paid through a third party payment services provider are subject to that third party’s terms of service, and Datanest Software Limited will not be responsible for anything contained therein. The Client is responsible for payment of any taxes associated with payment of the Fee.

8.3 The Fee is payable in advance [on the date of registration and on each anniversary thereafter] and is reviewable annually [on the anniversary of the Client registering for the BMIS], unless otherwise agreed by the Client and Datanest Software Limited. The Fee shall be paid by the Client in full without set-off, counterclaim or deduction of any kind.

8.4 In the event of a user wishing to remove a building from the system, the building record is subject to a closure fee. On final payment, a closure report and download of information (regulatory requirement) will be issued to the user.

8.5 Datanest Software Limited will provide a Tax Invoice to the Client in accordance with its invoicing terms.

8.6 All prices, fees, and other charges are inclusive of any and all taxes and duties apart from GST. The Client will pay GST at the prevailing rate on the amount of the Fee at the same time and in the same manner as the Fee is payable.

9. LIMITATION OF LIABILITY AND INDEMNITY

9.1 The BMIS is provided on an "as is" and "as available" basis. The Client's use of the BMIS (including, without limitation, the sending or submission or storage or access of Client Data) is at the Client's own risk. Subject to any terms implied by law which cannot be excluded, Datanest Software Limited will not be liable, for any damages (whether indirect, punitive, special, incidental or consequential damage (including loss of business, revenue, profits, use, privacy, data, goodwill or other economic advantage)) suffered as a result of the Client or anyone else using the BMIS or any linked website whether such liability arises in contract or in tort. This includes but is not limited to damage or injury caused by any failure or performance, error, omission, interruption, defect, delay in operation of transmission, computer virus, communication line failure, theft, destruction, unauthorised access or alteration of the BMIS or any of its contents including, without limitation, Client Data.

9.2 Datanest Software Limited does not endorse any of the data that the Client chooses to add to the BMIS, and expressly disclaims any and all liability in connection with it. Datanest Software Limited does not pre-screen or monitor the data that the Client adds to the BMIS. In no event shall Datanest Software Limited be liable for any claims by a third party including, but not limited, to any misleading statements made and/or incorporated into any data the Client adds to the BMIS. It is the Client’s sole responsibility to ensure the accuracy of the data inputted into the BMIS.

9.3 The Client has sole responsibility for adequate security protection and backup of data and/or equipment used in connection with its usage of the BMIS and will not make a claim against for lost data, re-run time, inaccurate instruction, work delays or lost profits resulting from the use of the BMIS.

9.4 Without limiting the foregoing, in no event will Datanest Software Limited’s aggregate liability to the Client exceed, in total, the amounts paid by the Client to Datanest Software Limited.

9.5 As a condition of the Client’s access to and use of the BMIS, the Client agrees to indemnify Datanest Software Limited and its successors and assigns for all damages, costs, expenses and other liabilities, including but not limited to legal fees and expenses, relating to any claim arising out of or related to:

1. the Client’s access to and use of the BMIS; or
2. the Client’s breach of these Terms and Conditions and any applicable law or the rights of another person or party.

This indemnification section survives the Term, and applies to claims arising both before and after the Term.

10. CHANGES TO THESE TERMS AND CONDITIONS

10.1 Datanest Software Limited has the right to vary these Terms and Conditions and to change or withdraw the BMIS at any time. Amendments will be effective immediately when Datanest Software Limited posts the amended terms and conditions of use [on the portal]. The Client is responsible for ensuring that it is familiar with the latest terms and conditions of use. By continuing to use the BMIS the Client agrees to be bound by these Terms and Conditions (as amended).

11. RESTRICTIONS AND TERMINATION OF ACCESS TO BMIS

11.1 Datanest Software Limited may suspend or withdraw the Client's right to access and use the BMIS at any time without prior notice if:

1. the Client has breached these Terms and Conditions or have acted fraudulently;
2. the Client dies, becomes bankrupt, or commits an act of bankruptcy or if a corporate, suffers and Insolvency Event;
3. Datanest Software Limited withdraws the BMIS;
4. Datanest Software Limited considers that it has other reasonable grounds to do so (in which case all reasonable efforts will be made to advise the Client of the circumstances of withdrawal or suspension); or
5. Datanest Software Limited is complying with a court order.

11.2 The Client may terminate its right to access and use the BMIS at any time by giving [10 days] written notice to Datanest Software Limited.

12. GENERAL

12.1 If Datanest Software Limited does not exercise or enforce any right available to it under these Terms and Conditions, it does not constitute a waiver of those rights.

12.2 These Terms and Conditions constitute the entire agreement between the Client and Datanest Software Limited and supersede all prior agreements, arrangements, understandings and representations (whether oral or written) given by or made between Datanest Software Limited and the Client, relating to the subject matter of these Terms and Conditions.

12.3 The rights and remedies provided in these Terms and Conditions are cumulative and not exclusive of any rights or remedies provided by these Terms and Conditions or at law.

12.4 If any provision of these Terms and Conditions becomes or is held to be illegal, invalid or unenforceable in any respect, that provision shall be read down to the extent necessary to make it legal, valid and enforceable or, if it cannot be read down, be deemed severed from these Terms and Conditions. Neither such change shall affect the legality, validity and enforceability of the other provisions of these Terms and Conditions.

12.5 These Terms and Conditions are governed by the laws of New Zealand. When the Client accesses the BMIS, the Client submits to the exclusive jurisdiction of the New Zealand courts.