Terms and Conditions

Orchestra Limited

1. Definitions and Interpretation

1.1 Definitions

The following definitions apply in these Terms:

Confidential Information means information about a party which is confidential in nature, and/or is of commercial value to that party.

Linked User means a person other than the Subscriber who has been invited to use the Services by a Subscriber (for example, a lawyer or accountant). A Linked User must also accept these Terms to use Our Services.

Orchestra, We, Our or Us means Orchestra Limited (NZCN 7677058).

Protected Content means underlying code and software and may include text, graphics, logos, images and data from the Website and Services.

Services means all the services We provide now or in the future, including Our online products.

Snowball means The Snowball Effect Limited (NZCN 3564791).

Subscription means when you create a subscription to use Our Services and accept these Terms and you become a Subscriber.

Subscription Fee means a monthly subscription fee payable by you for the use of Our Services.

Terms means these terms and conditions, as amended, updated or replaced by Us from time to time.

Website means www.orchestra.co.nz.

2. Orchestra Services

2.1 Subscription and right to use Our Services

You have the right to use Our Services while you pay your Subscription or until your Subscription expires or is terminated. By subscribing and using Our Services you accept these Terms and you will be responsible for paying the Subscription Fee.

2.2 Updates and new Services

We may update, modify, change or offer new Services from time to time and new Terms may apply to these new, modified or updated Services. Any new or updated Terms will be updated on the website from time to time and We have no obligation to advise you of any changes.

2.3 Maintenance of Services

From time to time We will need to perform maintenance of Our Services. We will attempt to notify you in advance of any planned maintenance and to limit the downtime of the Services as best We can. We accept no liability for any disruption or non-availability of the Services whether due to maintenance or any other reason and whether in our control or not.

2.4 No warranty

We make no warranty that the Services and the Website will be of satisfactory quality to meet your requirements or that it will be fit for any particular purpose.

3. Subscriber Responsibilities

3.1 Provision of accurate information

You agree to provide accurate, true, complete and up to date information about You which is required for the Services and setting up your Subscription. We are not required to verify the validity, accuracy or authenticity of any information you provide to Us. If you provide any information that is or becomes untrue, inaccurate or incomplete, or We have reasonable grounds to suspect that such information is untrue, inaccurate or incomplete, We have the right to suspend or terminate your account and refuse all current or future use of the Services.

3.2 Confidentiality and Linked Users

It is your responsibility to keep login details and information about your account and Subscription confidential. If you invite a Linked User to access your account, you should consider and understand the permissions you are granting to them. You accept all responsibility for all activities that occur under your Subscription, including the activities of any Linked Users.

3.3 Negative obligations

You will not:

  1. Introduce or upload anything to Our Services with a virus or malicious code.
  2. Upload anything to Our Services or the Website that is offensive, violates the law or infringes on the rights of others.
  3. Modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer or extract the source code of any part of Our Services.
  4. Commit fraud or other illegal acts through Our Services.
  5. Act in an abusive, disrespectful or offensive way to other Subscriber or any Orchestra employee, agent or representative.

3.4 Statutory obligations

You acknowledge and agree that you remain responsible for complying with any obligations under the Companies Act 1993 (Act) and for maintaining and keeping up to date all records on the Companies Office. We will use reasonable endeavours to ensure the Companies Office is updated with the information we receive from you but We will not be liable for any failure by you to comply or meet your obligations under the Act.

4. Fees

4.1 Fees

You agree to pay a monthly or annual Subscription Fee as and when it becomes due. The Subscription Fee is based on the Services you have subscribed for.

4.2 Payments

You agree to provide Us with accurate payment information. If We do not receive payment of your Subscription Fee on time, We may suspend or terminate access to your account until payment is made in full.

5. Data and Privacy

5.1 Data

You will retain ownership over all data entered or uploaded on to Our Services or Website. You grant Us a licence to use, copy, transmit, store, analyse, and back up any and all data you submit to Our Services, including personal data of yourself and others to:

  1. enable you to use Our Services;
  2. allow Us to improve and maintain Our Services;
  3. develop new Services;
  4. communicate with you about your Subscription; and
  5. send you information We think may be of interest to you based on your marketing preferences.

You are responsible for maintaining copies of all the data you submit to Us and We will not be liable for any data loss.

5.2 Privacy policy

We will comply with Our privacy policy when we use, process and store personal data that you have submitted to Us. If you provide Us with any personal data of others you agree to receive all necessary consents from those persons for the processing of their personal data by Us.

6. Confidential Information

6.1 Protection of Confidential Information

While using Our Services you may share your Confidential Information with us and you may have access to Our Confidential Information. You and We both agree to take reasonable steps to protect the other party’s Confidential Information from being accessed by unauthorised individuals.

7. Intellectual Property

7.1 Ownership of intellectual property

All content, code and software included in Our Services and created by or on behalf of Orchestra is owned by Us, our affiliates and Our third party business partners. This includes all rights intellectual property, proprietary and industrial rights arising in connection with the Services such as copyrighted works, trademarks, designs, inventions, methods, processes, technical and non-technical information, trade names, business names, domain names and codes.

7.2 Copyright

The Website and the Services are comprised of Protected Content. The Protected Content is and will at all times remain the property of Orchestra

8. Termination

8.1 Termination by Subscriber

You may terminate your Subscription with Orchestra at any time by providing four weeks written notice to Us. You must pay all fees up to and including the date of termination of the Services and all other amounts outstanding to Orchestra. You are not entitled to a refund if you terminate the Services.

8.2 Termination by Orchestra

We may terminate your Subscription at any time by providing 15 business days’ written notice to you.

We may also terminate or suspend your Subscription immediately if:

  1. you breach any of these Terms and you do not remedy the breach within 10 business days after being required to do so by Us;
  2. you breach any of these Terms and the breach cannot be remedied;
  3. you fail to pay the Subscription Fee when due; or
  4. you become insolvent or otherwise cannot pay your debts when they fall due, your business goes into liquidation or has a receiver or manager appointed over any of its assets, you become insolvent or make any arrangement with your creditors, or become subject to any similar insolvency event in any jurisdiction.

You are not entitled to a refund or compensation of any other kind if you or We terminate the Services.

8.3 Refund on Termination

If your Subscription is terminated by you or us, at any time and for any reason:

  1. you will not be entitled to a refund or any compensation for the Fees paid by you; and
  2. Orchestra is entitled, at its sole discretion, to charge you an amount equivalent to the Fees for the remainder of term for the Services subscribed for by you. You agree that such amount is reasonable and is a genuine estimate of the loss incurred by Orchestra as a result of the early termination.

9. Liability and Indemnity

9.1 Indemnity

You agree to indemnify and hold us (and our officers, directors, agents and employees) harmless from any claim, demand or liability, including reasonable legal fees, arising out of or related to your use of the Services or breach of these Terms or any law or the rights of a third party.

9.2 Exclusion and limitation of liability

You agree that to the maximum extent permitted by law, Orchestra and its affiliates, officers, employees, agents and partners shall not in any way be liable to you for any loss or damage of any nature arising from your use of the Services. If in any circumstance we are found liable we our total aggregate liability to you is limited to the total amount you paid Us for your Subscription in the 12 months immediately preceding the date on which the claim giving rise to the liability arose.

10. Disputes

10.1 Resolution of Disputes

If any dispute arises between you and Us, we each agree to discuss in good faith to resolve the dispute. If we are unable to resolve the dispute, we agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction.

11. Miscellaneous

11.1 Snowball and third party services

We work closely with Snowball and Our Services may be integrated with or otherwise interact with the services of Snowball or other third parties. Snowball and any other third parties may have their own terms and conditions and privacy policies and your use of their services will be governed and subject to their terms and conditions and privacy policy.

11.2 Force majeure

We will not be liable to you for any failure or delay to perform Our obligations under these Terms arising out of any event or circumstance beyond Our reasonable control.

11.3 Waiver

We will not be deemed to have waived any right under these Terms unless the waiver is in writing. A failure to exercise or delay in exercising any right by Us under these Terms will not operate as a waiver of that right.

11.4 Communication

If you have any questions or concerns relating to the Terms or the Services, please contact Us on info@orchestra.co.nz We will send you any notices or communications to the email address you provided when sending.

11.5 Electronic communications

You consent to receiving communication from us electronically and you agree that all agreements, notices and disclosures satisfy any legal requirement that such communication be in writing. You agree for the purposes of the Electronic Transactions Act 2002 to be bound by any agreement reached through electronic means.

11.6 Assignment

We may assign these Terms or any of Our rights and obligations under these Terms without the need to obtain your consent. You may not assign any or all of your rights and obligations under these Terms without Our prior written consent.

11.7 Severance

If any provision in these Terms becomes invalid or unenforceable, the remainder of these Terms will remain valid and enforceable to the fullest extent permitted by law.

11.8 Governing law

These Terms are governed by, and if to be construed in accordance with, the laws of New Zealand and you agree to submit to the exclusive jurisdiction of the courts of New Zealand for any disputes or proceedings arising out of or in connection with these Terms.