Terms and Conditions

Start your workplace digital signage journey with Vibe.fyi on the right path.

INTRODUCTION

BEFORE YOU BEGIN YOUR JOURNEY WITH VIBE.FYI, PLEASE READ AND ACCEPT OUR TERMS & CONDITIONS (“AGREEMENT” OR “TERMS OF USE”) THAT GOVERN THE TRIAL AND ACQUISITION OF THE VIBE.FYI SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX IN THE TRIAL SIGNUP FORM INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM OR PROPOSAL THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

Vibe.fyi reserves the right to change these Terms or any Services at any time, effective upon the posting of modified Terms or Services on the Website, and Vibe.fyi will make every effort to communicate these changes to You via e-mail. It is likely that the Terms will change over time. It is Your obligation to ensure that You have read, understood and agree to the most recent Terms available on the Website. This Agreement was last updated on 19 February 2022. It replaces any prior agreement(s) between You and Vibe.fyi. When we change these Terms, the “last updated” date above will be updated to reflect the date of the most recent version.

  1. DEFINITIONS

    1. In the Agreement, the following terms have the stated meaning:
    2. “Agreement” or “Terms of Use” Means these Terms and Conditions and includes any notices, policies, guidelines or conditions sent to You by Vibe.fyi or posted on the Website.
    3. “Admin User” the nominate key employees to administer the SaaS Service.
    4. “Confidential Information” the terms of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement. Vibe.fyi’s Confidential Information includes Intellectual Property owned by Vibe.fyi (or its licensors), including the Vibe Software. Your Confidential Information includes the Data.
    5. “Data” all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of You that is stored using, or inputted into, the Services.
    6. “Device”   a digital signage display or media player on which Vibe Software may be installed.
    7. “Digital Signage Licence” the per Device licence issued by Vibe.fyi to You under the selected SaaS Service which allows the SaaS Service to run on a specific Device.
    8. “Documentation” the user and technical documentation designed to enable You to properly use and operate the Vibe Software (if any), and includes any update of the documentation.
    9. “Fees” means the monthly or annual fee (excluding any taxes and duties) and any applicable one-time-service fees payable by You in accordance with the fee schedule set out on the Website and as agreed to in the Proposal for Services.
    10. “Force Majeure” an event that is beyond the reasonable control of a party, excluding:
      1. an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
      2. a lack of funds for any reason.
    11. “Goods”    Devices, accessories, components and/or materials supplied by Vibe.fyi to You under the Agreement, including Onboarding.
    12. “Intellectual Property Rights” includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.  Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
    13. “Objectionable” includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
    14. “Onboarding” the initial supply of Goods and the provision of services to You
    15. “Permitted User” a web portal member of the SaaS Service
    16. “Personal Information” has the meaning given in the Privacy Act 2020.
    17. “Proposal” a formal plan outlining Onboarding, Fees and Related Services
    18. “Related Services” the add-on subscription services, additional training services and other services described in the Proposal and any further services that Vibe.fyi makes available and agrees to provide to You under the Agreement.
    19. “Renewal Date” means the date (monthly or annual) on which Your subscription renews.
    20. “Renewal Period” means the period for which You agree to subscribe to the Services and for which You agree to prepay the Fees (either monthly or annually) as specified in Your Proposal (and which may differ for each Vibe.fyi Service).
    21. “SaaS Service” the SaaS service identified in Your Proposal including any Related Services that adds features, content or functionalities to the SaaS service.
    22. “Sales Tax” sales tax, goods and services tax, value added tax or equivalent tax payable under any applicable law.
    23. “Services” the SaaS Service and any Related Services including services provided as part of Onboarding.
    24. “Services Interruption Event”
      1. any interruption to Onboarding caused by a Force Majeure Event;
      2. Your failure to carry out or perform any obligation required of it under the Agreement which in the sole opinion of Vibe.fyi does or may cause a delay in Onboarding or Related Services; and
      3. any other matter which in the reasonable opinion of Vibe.fyi will cause an interruption or delay in the performance of Onboarding or Related Services.
    25. “Standard Operating Hours” hours between 8:30am and 5pm on any Working Day NZT.
    26. “Start Date” the date You are supplied with login details for the Vibe Software
    27. “Subscriber”, “You” and “Your” means the person or the company or other legal entity who is identified in the Proposal as the Subscriber. This can also be known as the “Account Owner”.
    28. “Subscription Fee” means the monthly or annual fee (excluding any taxes and duties) and any applicable one-time-service fees payable by You in accordance with the fee schedule set out on the Website and as agreed to in the Proposal for Services.
    29. “Subscription Term” means the initial period (monthly or annual) for which you agree to subscribe to the Services and for which you agree to prepay the Fees as specified in Your Proposal, together with each subsequent Renewal Period (unless terminated earlier in accordance with the terms of this Agreement).
    30. “Trial Form” means the online application form on the Vibe.fyi Website requesting access to Services for a 1-Month (30-Day) period free of any charges.
    31. “Underlying Systems” the Vibe Software, IT solutions, systems, and networks (including software and hardware) used to provide the Services, including any third-party solutions, systems and networks.
    32. “Vibe.fyi Partner” means any authorised third-party channel partner through whom you obtain a subscription to the Services.
    33. “Vibe Software” the software owned by Vibe.fyi that is used to provide the SaaS Service, including the media player software installed on a Device.
    34. “Vibe Support Package” the support packages as set out on the website and agreed to in Proposal.
    35. “Vibe Training” the initial 1-2 hour training session provided by Vibe.fyi to Your Admin Users.
    36. “Website” means the Internet site at www.vibe.fyi.
    37. “Webview Licence” the per playlist licence (playlist being a unique grouping of content) issued by Vibe.fyi to You under the selected SaaS Service which allows that SaaS Service to show different content across screensavers, web browsers and mobile devices.
    38. “Working Day” a day (other than a Saturday, Sunday or Public Holiday) on which major banks are open for business in Auckland, New Zealand.
    39. “Year” a 12-month period starting on the Start Date or the anniversary of that date.
    40. “Your Organisation” means, an organisation that You have added as a subscriber to the Services or that has been added with Your authority or as a result of Your use of the Services.
  2. DEVICES

    1. Devices:  Vibe.fyi may recommend to You the Devices which Vibe.fyi considers will best meet Your requirements.  You will make all reasonable inquiries to ensure that it agrees with Vibe.fyi’s recommendations prior to placing an order for such Devices. 
    2. Procurement:  If You intend to separately organise the Devices, or the installation of any Devices, then prior to engaging Vibe.fyi’s Services, You undertake to advise Vibe.fyi of the relevant specifications relating to the Devices, including:
      1. the make, model and year of the Devices (if such Devices have not been recommended by Vibe.fyi);
      2. the details of any software already installed on the Devices; and
      3. the operating system that the Devices currently run on.
    3. Installation:  You must separately organise the installation of the of Devices in accordance with clause 2.2.  If requested by You, Vibe.fyi may, in its sole discretion, agree to organise for You, at Your cost, a third-party installation specialist to install Devices at Your premises.
    4. Costs:  You acknowledge that You are responsible for all maintenance costs, insurance and any other costs relating to the Devices and holds Vibe.fyi harmless in relation to any fault in respect of the installation and/or performance of the Devices, excluding any wilful or negligent acts or omissions by Vibe.fyi or its sub-contractors.
  3. SERVICES

    1. General:  Vibe.fyi must use reasonable efforts to provide the Services:
      1. in accordance with the Agreement and New Zealand law;
      2. exercising reasonable care, skill and diligence; and
      3. using suitably skilled, experienced and qualified personnel.
    2. Digital Signage Licence:  The Digital Signage Licence is limited to the life of the relevant Device but may be transferred to another Device for the duration of the Term.
    3. Non-exclusive:  Vibe.fyi’s provision of the Services to You is non-exclusive.  Nothing in the Agreement prevents Vibe.fyi from providing the Services to any other person.
    4. Availability:   
      1. Subject to clauses 3.4b and 3.4c, Vibe.fyi will use reasonable efforts to ensure the SaaS Service maintains a 99.5% uptime within a given month. 
      2. On occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure.  Vibe.fyi will use reasonable efforts to notify You by email advance details of any unavailability.
      3. Through the use of web services and APIs, the SaaS Service interoperates with a range of third-party service features.  Vibe.fyi does not make any warranty or representation on the availability of those features.  Without limiting the previous sentence, if a third-party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, Vibe.fyi may cease to make available that feature to You.  To avoid doubt, if Vibe.fyi exercises its right to cease the availability of a third-party feature, You are not entitled to any refund, discount or other compensation. 
    5. Related Services and Goods:  At the request of You and subject to You paying the applicable Fees, Vibe.fyi may agree to provide Related Services and/or Goods to You. To avoid doubt, the provision of such Related Services and/or Goods will be part of and subject to the terms of the Agreement.
  4. SUPPORT SERVICES

    1. Support Services:  Vibe.fyi must provide You with the support services in accordance with the selected Vibe Support Package, provided You have:
      1. paid all Fees due;
      2. maintained a proper operating environment for the use of the Vibe Software in accordance with any guidance from Vibe.fyi, including in the Documentation; and
      3. complied with the Agreement.
    2. Service exclusions:  The Services do not include Vibe.fyi supplying expertise in relation to:
      1. faults caused by using the Devices or Vibe Software outside design or other specifications or outside the provisions in any Documentation or manual supplied with them;
      2. correction of errors arising directly or indirectly out of Your failure to comply with the Agreement or any other agreement with Vibe.fyi;
      3. faults where modification, variation, translation, alteration or revision has been undertaken by any third party not authorised by Vibe.fyi;
      4. faults caused by failure of any device or software not under Vibe.fyi’s control;
      5. Device maintenance services;
      6. faults caused by changes to Your system (processing environment) not authorised by Vibe.fyi; or
      7. faults not reported to Vibe.fyi within 20 Working Days of such fault occurring.
  5. YOUR OBLIGATIONS

    1. General use:  You must:
      1. use the Services in accordance with the Agreement solely for:
        1. Your own internal business purposes; and 
        2. lawful purposes; and
      2. not resell or make available the Services to any third party, or otherwise commercially exploit the Services.
    2. Access conditions:  When accessing the SaaS Service, You must:
      1. not impersonate another person or misrepresent authorisation to act on behalf of others or Vibe.fyi;
      2. correctly identify the sender of all electronic transmissions;
      3. not attempt to undermine the security or integrity of the Underlying Systems;
      4. not use, or misuse, the SaaS Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service;
      5. not attempt to view, access or copy any material or data other than:
        1. that which You are authorised to access; and
        2. to the extent necessary for You to use the SaaS Service in accordance with the Agreement; and
        3. neither use the SaaS Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.
    3. Personnel:
      1. You must nominate key employees to administer the SaaS Service (Admin Users).
      2. Your Admin Users may authorise any member of its personnel to be a web portal member of the SaaS Service (Permitted User). 
      3. No individual other than an Admin User or Permitted User may access or use the SaaS Service.
      4. A breach of any term of the Agreement by personnel (including, to avoid doubt, an Admin User or Permitted User) is deemed to be a breach of the Agreement by You.
    4. Vibe Training: 
      1. You must ensure that its Admin Users attend the Vibe Training.
      2. Any change in personnel that results in a need to change the Admin User will require additional Vibe Training. Any additional Vibe Training (other than the initial Vibe Training) will be at Your cost.
    5. Authorisations:  You are responsible for procuring all licences, authorisations and consents required for You and Your personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.
    6. Duty to inform of faults:  You must promptly report to Vibe.fyi any service interruption, technical issues or any other incident or issue relating to the Services and must report any issues with the Devices which may have an impact on the performance of the Services.
  6. DATA

    1. Vibe.fyi access to Data: 
      1. You acknowledge that:
        1. Vibe.fyi may require access to the Data to exercise its rights and perform its obligations under the Agreement; and
        2. to the extent that this is necessary but subject to clause 9, Vibe.fyi may authorise a member or members of its personnel to access the Data for this purpose.
      2. You must arrange all consents and approvals that are necessary for Vibe.fyi to access the Data as described in clause 6.1a.
    2. Analytical Data: You acknowledge and agree that:
      1. Vibe.fyi may:
        1. use Data and information about You to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
        2. use Analytical Data for Vibe.fyi’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights.
      2. Vibe.fyi’s rights under clause 6.2a above will survive termination or expiry of the Agreement; and
      3. title to, and all Intellectual Property Rights in, Analytical Data is and remains Vibe.fyi’s property.
    3. Agent: 
      1. You acknowledge and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, Vibe.fyi is acting as an agent of You for the purposes of the Privacy Act 2020 and any other applicable privacy law.
      2. You must obtain all necessary consents from the relevant individual to enable Vibe.fyi to collect, use, hold and process that information in accordance with the Agreement.
    4. Backups of Data:  While Vibe.fyi will take standard industry measures to back up all Data stored using the Services, You agree to keep a separate back-up copy of all Data uploaded by it onto the SaaS Service.
    5. International storage of Data:  You agree that Vibe.fyi may store Data (including any Personal Information) in secure servers in overseas territories, provided that those overseas territories provide comparable privacy and data safeguards as New Zealand, and Vibe.fyi may access that Data (including any Personal Information) in those overseas territories and New Zealand from time to time.
    6. Indemnity:  Without limiting clause 11b, You indemnify Vibe.fyi against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by Vibe.fyi’s solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.
  7. FEES

    1. Fees:  You must pay to Vibe.fyi the Fees.
    2. Invoicing and payment: 
      1. Vibe.fyi must provide You with valid sales tax invoices on the dates set out in the Payment Terms, or if there are none, monthly in advance for the Fees due in the following month.
      2. The Fees exclude Sales Tax, which You must pay on taxable supplies under the Agreement.
      3. You must pay the Fees:
        1. on the dates set out in the Payment Terms, or if there are none, by the 20th of the month following the date of invoice; and
        2. electronically in cleared funds without any set off or deduction.
    3. Overdue amounts:  Vibe.fyi may charge interest on overdue amounts.  Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by Vibe.fyi’s primary trading bank as at the due date (or, if Vibe.fyi’s primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.  You must pay all costs, expenses and charges (including legal costs on a solicitor-client basis) that are incurred by Vibe.fyi in recovering any money owing to Vibe.fyi by You.
    4. Increases: 
      1. By giving at least 30 days’ notice, Vibe.fyi may increase the Fees once each Year (but not the first Year). Fees updated under this clause are deemed to be the Fees listed on the Website and in the Proposal.
      2. If You do not wish to pay the increased Fees, You may terminate the Agreement on no less than 10 Working Days’ notice, provided the notice is received by Vibe.fyi before the effective date of the Fee increase.  If You do not terminate the Agreement in accordance with this clause, You are deemed to have accepted the increased Fees.
    5. No deduction:  If You are required by law to make any deduction, You must pay Vibe.fyi any additional amount that is necessary to ensure receipt by Vibe.fyi of the full amount which Vibe.fyi would have received but for the deduction.
  8. INTELLECTUAL PROPERTY

    1. Ownership: 
      1. Subject to clause 8.1b, title to, and all Intellectual Property Rights in, the Services, Documentation and all Underlying Systems is and remains the property of Vibe.fyi (and its licensors).  You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
      2. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains the property of You. You grant Vibe.fyi a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with the Agreement.
    2. Know-how:  To the extent not owned by Vibe.fyi, You grant Vibe.fyi a royalty-free, transferable, irrevocable and perpetual licence to use for Vibe.fyi’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by Vibe.fyi in the provision of the Services.
    3. Feedback:  If You provide Vibe.fyi with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
      1. all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by Vibe.fyi; and
      2. Vibe.fyi may use or disclose the feedback for any purpose.
    4. Third party sites and material:  You acknowledge that the SaaS Service may link to third party websites or feeds that are connected or relevant to the SaaS Service.  Any link from the SaaS Service does not imply any Vibe.fyi endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators.  To the maximum extent permitted by law, Vibe.fyi excludes all responsibility or liability for those websites or feeds.
    5. Third-party Intellectual Property Rights indemnity: 
      1. Vibe.fyi indemnifies You against any claim or proceeding brought against You to the extent that claim or proceeding alleges that Your use of the SaaS Service in accordance with the Agreement constitutes an infringement of a third-party’s Intellectual Property Rights (IP Claim).  The indemnity is subject to You:
        1. promptly notifying Vibe.fyi in writing of the IP Claim;
        2. making no admission of liability and not otherwise prejudicing or settling the IP Claim, without Vibe.fyi’s prior written consent; and
        3. giving Vibe.fyi complete authority and information required for Vibe.fyi to conduct and/or settle the negotiations and litigation relating to the IP Claim.  The costs incurred or recovered are for Vibe.fyi’s account.
      2. The indemnity in clause 8.5a does not apply to the extent that an IP Claim arises from or in connection with:
        1. Your breach of the Agreement;
        2. use of the SaaS Service in a manner or for a purpose not reasonably contemplated by the Agreement or otherwise not authorised in writing by Vibe.fyi; or
        3. any third-party data or any Data.
      3. If at any time an IP Claim is made, or in Vibe.fyi’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, Vibe.fyi may (at Vibe.fyi’s option):
        1. obtain for You the right to continue using the items which are the subject of the IP Claim; or
        2. modify, re-perform or replace the items which are the subject of the IP Claim so they become non-infringing.
  9. CONFIDENTIALITY

    1. Security: Each party must, unless it has the prior written consent of the other party:
      1. keep confidential at all times the Confidential Information of the other party;
      2. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
      3. 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 clauses 9.1a and 9.1b.
    2. Permitted disclosure:  The obligation of confidentiality in clause 9.1 does not apply to any disclosure or use of Confidential Information:
      1. for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
      2. required by law (including under the rules of any stock exchange);
      3. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
      4. which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or
      5. by Vibe.fyi if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that Vibe.fyi enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 9.
  10. WARRANTIES

    1. Mutual warranties:  Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which will constitute binding obligations on the warranting party.
    2. No warranties:  To the maximum extent permitted by law:
      1. the Services are provided as is and as available without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose;
      2. all conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to the amount set out in clause 12.2; and
      3. without limiting clauses 10.2a and 10.2b, Vibe.fyi makes no representation concerning the quality of the Services and do not promise that the Services will:
        1. meet Your requirements or be suitable for a particular purpose, including that the use of the Services will fulfil or meet any regulatory requirements You may be subject to;
        2. be secure, free of viruses or other harmful code, uninterrupted or error free; or
        3. work in combination with any device that has not been recommended by Vibe.fyi.
    3. Third-party Goods:  No warranty is given as to the merchantability or fitness for purpose of any third-party Goods.
    4. Consumer Law:  You agree and represent that You are acquiring the Services, and entering the Agreement, for the purposes of trade.  The parties agree that:
      1. to the maximum extent permissible by law, any other applicable consumer protection legislation does not apply to the supply of the Services or the Agreement; and
      2. it is fair and reasonable that the parties are bound by this clause 10.4.
    5. Limitation of remedies:  Where legislation or rule of law implies into the Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Agreement.  However, the liability of Vibe.fyi for any breach of that condition or warranty is limited, at Vibe.fyi’s option, to:
      1. supplying the Services again; and/or
      2. paying the costs of having the Services supplied again.
  11. INDEMNITY

    1. Your indemnity:  You indemnify Vibe.fyi and its personnel against all claims, damages, liabilities, losses, costs and expenses (including in relation to any claim made by a third person and the actual legal fees charged by Vibe.fyi’s solicitors) arising from: 
      1. the use of the Services by You;
      2. any breach by You of Vibe.fyi’s Intellectual Property Rights; and
      3. any failure by You to comply with its obligations under the Agreement.
  12. LIABILITY

    1. No liability:  To the maximum extent permitted by law:
      1. You access and use the Service at Your own risk; and
      2. Vibe.fyi is not liable or responsible to You or any other person for any claim, damage, loss, liability and cost under or in connection with:
        1. the Agreement;
        2. the Services;
        3. Your access and use of (or inability to access or use) the Services; or
        4. faults and damage caused by poor handling and/or installation of the Goods by You, or any subcontractor engaged by Vibe.fyi to perform all or part of Onboarding or a subsequent order for Goods. 
      3. This exclusion applies regardless of whether Vibe.fyi’s liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.
    2. Maximum liability:  If, notwithstanding clause 12.1b, Vibe.fyi is determined to have any liability to You (or any third party) arising out of or in connection with these Terms, Vibe.fyi’s liability in respect of any one incident, or series of connected incidents, will be limited to an amount equal to the Fees paid by You in the three months preceding the first such incident. For the purposes of this clause 12.2, the total Fees do not include the amounts paid or payable for Goods.
    3. Unrecoverable loss:  Neither party is liable to the other under or in connection with the Agreement or the Services for any:
      1. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
      2. consequential, indirect, incidental or special damage or loss of any kind.
  13. TERM, TERMINATION AND SUSPENSION

    1. Trial policy: When You first sign up for access to the Services You can evaluate the Services for a period of 1-Month (30-day) from the Start Date, with no obligation to continue to use the Services. You may elect to, on or before the thirtieth day, discontinue the Services. If You do not elect to discontinue using the Services within this 30-day timeframe, You will be billed on the thirty first day for the Subscription Term Fee. If You choose to discontinue using the Services, You must apply in writing to support@vibe.fy to be removed from the Services.
    2. Duration:  The Subscription Term will renew automatically at the end of the initial period of Your Subscription Term and then subsequently at the end of each Renewal Period and the Fee for that month or year (as applicable) will continue to be due and payable in advance, unless either party terminates these Terms by giving notice to the other party at least 7 days before the end of the initial subscription period or the relevant Renewal Period (as applicable).
    3. Modifications by You to Your subscription: You may reduce or increase Your subscribed Services by providing Vibe.fyi written notice via support@vibe.fyi at least 7 days prior to the next Renewal Date. The change to Your subscription will then take effect on that Renewal Date.
    4. No-Fault Termination: If insufficient notice is given then:
      1. if Your subscription renews on a monthly basis, Your subscription will not be cancelled until the next Renewal Date;
      2. if Your subscription renews on an annual basis then, provided Your notice is received by Vibe.fyi no later than seven days following the Renewal Date, Vibe.fyi will accept Your notice of cancellation and will refund any Fees already paid by You in relation to the new Renewal Period. If Your notice is received by Vibe.fyi more than seven days after the Renewal Date then Vibe.fyi will accept Your notice of cancellation and may then choose (in its sole discretion) to refund some or all of the Fees already paid by You that relate to the unused portion of the new Renewal Period.
    5. Consequences of termination or expiry:
      1. Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.
      2. On termination or expiry of the Agreement, You must pay all Fees for Services provided prior to that termination or expiry.
      3. Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of the Agreement, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control. 
    6. Obligations continuing:  Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 6.6, 8, 9, 11, 12, 13.5 - 13.7 and 14, continue in force.  
    7. Rights to restrict:  Without limiting any other right or remedy available to Vibe.fyi, Vibe.fyi may withhold delivery of Goods, suspend Onboarding or any Related Services, restrict or suspend Your access to the SaaS Service, and/or delete, edit or remove the relevant Data if Vibe.fyi considers:
      1. a Services Interruption Event has occurred;
      2. that You (including any of Your organisations personnel) have:
        1. undermined, or attempted to undermine, the security or integrity of the SaaS Service or any Underlying Systems;
        2. used, or attempted to use, the SaaS Service:
          1. for improper purposes; or
          2. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service;
        3. transmitted, inputted or stored any Data that breaches or may breach the Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
        4. otherwise materially breached the Agreement.
    8. Process: 
      1. Vibe.fyi must notify You where it withholds delivery of Goods, suspends Onboarding or Related Services, restricts or suspends Your access, or deletes, edits or removes Data, under clause 13.7.
      2. Where a Service Interruption Event has occurred, Vibe.fyi will resume providing the affected Services once the Services Interruption Event ends or is remedies.
    9.  Overdue:
      1. Access Fees are paid in advance, however in the event that Your account becomes overdue this must be settled within 14 days otherwise Vibe.fyi reserves the right to suspend Your subscription and Your rights to access the Services, Website and the Data. The Billing Contact will be notified once an account becomes overdue.
      2. If You have subscribed to the Services via an Vibe.fyi Partner then that Vibe.fyi Partner may also request that Your account be suspended due to non-payment.
    10. Refund Policy: Subject to clause 13.4b Vibe.fyi does not provide refunds if You decide to stop using the Services at any time during Your Subscription Term.
  14. DISPUTES

    1. Good faith negotiations:  Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.
    2. Escalation:  If the parties are unable to resolve a dispute by negotiation within a reasonable period of time, either party may require the dispute to be escalated for resolution by their chief executive or equivalent officers.
    3. Obligations continue:  Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.
    4. Right to seek relief:  This clause 14 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
  15. GENERAL

    1. Force Majeure:  Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:
      1. immediately notifies the other party and provides full information about the Force Majeure;
      2. uses best efforts to overcome the Force Majeure; and
      3. continues to perform its obligations to the extent practicable.
    2. Rights of third parties:  No person other than Vibe.fyi and You has any right to a benefit under, or to enforce, the Agreement.
    3. Waiver:  To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
    4. Variation:  Subject to clause 7.4 of the Agreement, any variation to the Agreement must be in writing and signed by both parties.
    5. Notices:  A notice given by a party under the Agreement must be delivered to the other party via email and will be deemed to have been received unless an electronic error message is received by the sender. Notices to Vibe.fyi must be sent to legal@vibe.fyi. Notices to You will be sent to the email address on record in our account information for You.
    6. Entire agreement:  The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date.  You under these Terms, supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitute the entire agreement between You and Vibe.fyi relating to the Services and Your access and use of the Website and the other matters dealt with in these Terms. 
    7. Severability: 
      1. If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
      2. If modification under clause 15.6a is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.
    8. Subcontracting and assignment: 
      1. You may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of Vibe.fyi, that consent not to be unreasonably withheld.  You remain liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer.  Any assignment, novation, subcontracting or transfer must be in writing.
      2. Any change of control of You are deemed to be an assignment for which Vibe.fyi’s prior written consent is required under clause 15.8a. 
    9. Law:  The Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand.  Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with the Agreement.


Contact Us

20 Florence Avenue, Orewa, New Zealand
enquiry@vibe.fyi
Last Edited on 24/08/2022

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