Subscription Terms and Conditions
ORCHID™ LOCATION DEVICE
SUBSCRIPTION TERMS AND CONDITIONS
PLEASE READ THESE SUBSCRIPTION TERMS AND CONDITIONS CAREFULLY.
These Subscription Terms and Conditions set out the terms and conditions upon which Black International Limited makes available the ORCHID™ location device subscription service.
These Subscription Terms and Conditions prevail over any additional or inconsistent terms and conditions that may be specified by any user, and no variation to these Subscription Terms and Conditions will be binding on Black International Limited, unless otherwise expressly agreed by Black International Limited in writing.
By clicking “I accept and have read the Subscription Terms and Conditions” during the user registration process, you will be deemed to have accepted these Subscription Terms and Conditions.
if you do not accept these Subscription Terms and Conditions, you may not be able to use or access the Service.
1.1 For the purposes of these Conditions, the following terms have the following meanings:
Asset Register means the asset register section of our website black-int.com or our Black app, where users can record details of their property;
Conditions means these Subscription Terms and Conditions;
Intellectual Property Rights means all industrial and intellectual property rights (including applications for such rights) whether conferred by statute, at common law or in equity, including, but not limited to all copyrights and similar rights that may subsist in works or other subject matter, rights in relation to inventions (including all patents and patent applications), rights in relation to trade secrets and confidential information, rights in relation to designs (whether or not registrable), rights in relation to registered and unregistered trade marks and business names, rights in relation to circuit layouts, and other rights as defined by Article 2 of the Convention of July 1967 establishing the World Intellectual Property Organisation as may exist anywhere in the world;
Location Device means an ORCHID™ location device manufactured by us and designed for use with powered assets and property;
Service means the subscription service provided by us (as may be modified, enhanced, developed or improved from time to time) and accessible via black-int.com or our Black app (or at such other website or location as we may determine from time to time), that uses GPS and GSM technologies to assist subscribers to locate property in which they have installed any Location Device;
Subscription Fees means the subscription fees payable for the provision of the Service;
User Data means any data, report or other information uploaded or submitted to the Service or generated via the Service, that is specific to you or your Location Devices;
we or our or us means Black International Limited; and
you or your means the person or organisation that subscribes with us as a user of the Service.
2. LICENCE TO USE THE SERVICE
2.1 We grant to you a licence to access and use the Service solely in connection with the use and locating of Location Devices supplied by us or our authorised resellers or retailers.
2.2 The licence in clause 2.1 is non-exclusive, non-transferable and non-sublicensable, and is limited to use of the Service in the country or region selected by you when you first subscribe to the Service.
2.3 You must use the Service in accordance with any reasonable instructions notified by us to you (including any instructions given by us as a result of instructions imposed by any regulatory authority for electronic communications or telecommunications services in the relevant country).
2.4 If you are using or accessing the Service on behalf of any entity, you represent that you have authority to bind the relevant entity to these Conditions.
2.5 You will be responsible to us for all acts or omissions of any person you allow to use or access the Service, as if they were your acts or omissions.
3. ACCESSING THE SERVICE
3.1 You will not be able to access or use the Service if you do not maintain a paid subscription for the Service with us.
3.2 You are responsible for keeping your registration login information, including your user account name and password issued to you, secret and secure. You must not permit any other person to use your login information. You must immediately notify us of any unauthorised use of your login information, and in such event we may take such actions as we deem reasonably necessary in order to maintain or enhance the security of the Service, including by temporarily suspending your subscription or resetting your password.
3.3 You are also responsible for making sure that your registration details are kept up to date and are accurate. We are not responsible for any loss, damage, cost or expense arising as a result of any failure by you to keep your registration details up to date, or as a result of any inaccurate information provided by you.
3.4 To use the Service, you will need compatible devices and operating systems, and internet access. It is your responsibility to ensure that your software, hardware and systems are able to operate with the Service, and meet any minimum specifications published by us on our website www.black-int.com or that may otherwise be notified by us to you from time to time. Please note that these minimum specifications may change over time as we make further changes and improvements to the Service, and it is your responsibility to ensure that your software, hardware and systems maintain compatibility with the Service.
3.5 You must ensure that your information systems and networks on which the Service will be accessed are reasonably secure, and that security measures are in place to prevent unauthorised access to the Service to at least a reasonable industry standard.
4. PROHIBITIONS OF USE
4.1 You must not do any of the following things:
(a) use the Service in connection with any location or tracking devices or equipment other than the Location Device;
(b) use the Service or Location Devices for the transmission of illegal or offensive material, or in any fraudulent or unlawful manner;
(c) use the Service or Location Devices for the transmission of material that contains software viruses or any other disabling or damaging programs;
(d) use the Service or Location Devices in any way that impairs or damages the mobile communications networks or M2M platforms used by our service providers for the provision of the Service, or in any way that would interfere with other users' use of those networks or platforms;
(e) use the Service or Location Devices in any way that involves the SIMs installed in the Location Devices being included in (fixed) GSM adapters;
(f) use the Service or Location Devices in any way that would violate any Intellectual Property Rights of any third party;
(g) use or resell any Location Devices in breach of any export control laws or regulations, or any economic, trade or financial sanctions laws, regulations, embargoes or restrictive measures administered in New Zealand, the European Union, the United States of America or any other countries that are applicable to you (Relevant States), or use or resell any Location Devices in Cuba, Iran, North Korea, Sudan or Syria or any other countries as from time to time appear on restricted lists published by the Relevant States;
(h) resell or use the Service to provide any services to third parties, or permit third parties to remotely access or use the Service;
(i) modify, adapt, alter, translate, create derivative works from, reverse engineer or decompile any Location Device or any part of the Service, or any software comprising or underlying the Service, or in any manner attempt to derive the source code of any such software;
(j) publish any results of any benchmark performance tests of any mobile communications networks used by our service providers for the provision of the Service, or of any SIMs installed in the Location Devices;
(k) use any robot, spider, site search/retrieval application, or other device or technological process to retrieve or index any portion of the Service, except as expressly authorised by us in writing; or
(l) encourage, assist or direct any other person to do any of the things set out in paragraphs (a) to (k) above.
If you do any of these things, you will be responsible to us for any losses, damages, costs or expenses incurred or suffered by us as a result.
4.2 In relation to any SIMs installed in the Location Devices, you agree:
(a) not to use those SIMs for any purpose other than in connection with the Service;
(b) not to remove those SIMs from any Location Devices;
(c) not to modify, adapt, alter, translate, or create derivative works from those SIMs;
(d) not to merge or use those SIMs with any other hardware, software, products or services other than the Location Devices;
(e) not to sublicense, lease, rent, loan, disclose or otherwise transfer those SIMs to any third party (provided that you may reallocate a Location Device to a new user, as set out in clause 14);
(f) not to reverse engineer, decompile, disassemble or otherwise attempt to derive the source or object code of those SIMs or any software running on those SIMs;
(g) not to use or allow those SIMs to be used to develop a product line that is similar to the SIMs or the Location Device;
(h) that notwithstanding any transfer of title to the physical SIMs, ownership of any materials residing on such SIMs within which Intellectual Property Rights subsist will remain with us or our licensors;
(i) that we or our network service providers may send updates or upgrades to those SIMs by any means (such updates or upgrades may be required for functionality, to address Intellectual Property Rights issues or to comply with national regulations). Notwithstanding any transfer of title to the physical SIMs, you consent to such updates or upgrades being sent from time to time; and
(j) that we or our network service providers may at any time suspend or deactivate a non-upgraded SIM.
4.3 You must not use the Service or Location Devices in relation to any property or assets that you do not own or have the right to possess. If we reasonably suspect that your Asset Register includes stolen property, or that you have registered a Location Device against stolen property, we reserve the right to provide your details and details of the property in question and its location, to any person we believe to be the rightful owner of that property, and to police or other law enforcement authorities.
5. OUR RIGHTS IN THE SERVICE AND LOCATION DEVICES
5.1 You acknowledge that:
(a) the Service and Location Devices are of significant commercial value to us and our licensors;
(b) all Intellectual Property Rights in the Service and Location Devices are owned by us or our third party licensors, and you will not in any way question or dispute the ownership by us or our third party licensors of such Intellectual Property Rights; and
(c) except as expressly stated in these Conditions, no right or licence is granted to you in relation to the Service.
5.2 You must not do any of the following:
(a) copy any of the information or content available via the Service unless expressly permitted by us to do so;
(b) compile or extract that information or content for the purpose of making such information or content available to others (whether as a directory or otherwise) with a view to a profit or for a fee or other consideration; or
(c) use any proprietary trade mark of us or our licensors in a manner that is reasonably considered by us or our licensors to be a misuse or appropriation of that trade mark.
5.3 Nothing in clauses 5.1 or 5.2 will:
(b) limit your right to use, copy or otherwise exploit your User Data in any way that you may see fit.
6. LIMITATIONS OF THE SERVICE
6.1 The Service may not operate effectively if you have not properly installed the Location Device, if the asset or property in which the Location Device is installed is defective or incompatible with the Location Device, or if the Location Device is removed from that asset or property. Location Devices are designed to be installed in powered assets and property. These include many popular and widely-available battery-powered tools. However, we do not warrant or represent that a Location Device can be installed in all powered tools or other battery-powered assets and property. Please follow the installation instructions provided with the Location Device, or visit the FAQ section of our website for installation instructions.
6.2 The Service is not designed to enable tracking of property from one location to another in real time. There may be a delay in any response to a request by you for the location of a Location Device, as the Location Device will not respond to that request unless it is powered-up and within GPS and GSM coverage. The Location Device is designed to power-up approximately every 30 minutes to check for location requests, and to power down after it has checked.
6.3 Once the Service has requested the location of a Location Device, the location request will stay active for 72 hours. If the Location Device has not been located within that 72 hour period, the user may then make a further location request via the Service. Only one location request may be made per Location Device in any 72 hour period.
6.4 The Service utilises GPS and GSM technologies. These technologies come with some limitations. In particular:
(a) GPS and GSM technologies may not work in certain locations or in certain environments. Some areas or regions may have limited or no coverage. Additionally, these technologies may not operate effectively inside buildings or other enclosed spaces;
(b) if the property in which a Location Device is installed is located outside or beyond GPS or GSM range or coverage, the Service will not be able to locate the Location Device unless the Location Device comes within such range or coverage; and
(c) the availability of these technologies may be affected by network outages or by adverse weather or atmospheric conditions.
6.5 Please see the FAQ section of our website at www.black-int.com for more details about how the Location Devices work and the limitations of the Service and Location Devices.
6.6 You acknowledge and agree that the Service is one of many ways in which people can locate and keep track of their property, but it is not a substitute for sensible security measures. Nor is it a substitute for proper insurance. You should ensure that your property is kept secure and is adequately insured.
6.7 We are not responsible for the recovery of any lost property located via the Service. If you suspect that your property has been stolen, you should involve the appropriate law enforcement authorities in any property recovery process.
7. availability of the service
7.1 We will use reasonable endeavours to keep the Service operational 24 hours a day, seven days a week, for so long as you maintain a Service subscription with us. However, no warranty or representation is given that the Service will be complete, uninterrupted or error-free.
7.2 You acknowledge that:
(a) the operation and availability of the systems and networks used by you to access the Service, such as computer systems, mobile networks and the Internet, may be unpredictable and prevent use of or access to the Service; and
(b) there may be occasions where some or all of the Service is unavailable, for example to permit maintenance, or due to unexpected or uncontrollable outages. We will use reasonable endeavours to notify you in advance of any significant planned Service outages.
7.3 You must not use the Service for any purpose that requires uninterrupted availability of the Service and where interruption of the Service may cause death, personal injury, physical injury or property damage.
7.4 Any bugs, errors, defects or unexplained outages within the Service that you become aware of (Faults) can be reported by telephone or email to our helpdesk. See the FAQ section of our website at black-int.com for details of our helpdesk. No warranty or representation is given by us that any Fault will be responded to or resolved within any particular time period, or that any resolution to a particular Fault will be possible or practical from a technical or business administrative perspective.
8. changes to the service
8.1 We may make changes to the Service, including enhancements, modifications or replacements, provided that such changes do not materially adversely affect your use of the Service.
9. SUBSCRIPTION FEES AND PAYMENT TERMS
9.1 In consideration for the grant of licence under clause 2.1 and the provision of the Service to you, you agree to pay to us the Subscription Fees.
9.2 Details of our standard Subscription Fees, and the subscription periods those Subscription Fees cover, are available at www.black-int.com/pages/faq. The amount of Subscription Fees payable will depend on the number of Location Devices registered as well as your country or region.
9.3 We will notify you of the applicable Subscription Fees payable, and any changes to the total Subscription Fees payable, when you subscribe for the Service, or when you seek to make changes to your subscription or add to or remove from your subscription any Location Devices.
9.4 We may impose limits on the number of Location Devices that can be registered on a user subscription. If you wish to exceed these limits, you may need to purchase an additional Service subscription.
9.5 We may change the Subscription Fees at any time, upon giving you at least 30 days’ prior written notice. Any such change will apply to the Subscription Fees payable by you after expiry of that notice period. You may avoid paying the changed Subscription Fees by cancelling your subscription prior to the expiry of that notice period.
9.6 All Subscription Fees are payable in advance. We will not activate your subscription to the Service until we have confirmed that the applicable Subscription Fees have been paid.
9.7 Please note that we are not required to refund to you any Subscription Fees paid by you if you change your mind about the Service, if you decide that you no longer need the Service, or if your property in which any Location Device is installed is lost, disposed of or destroyed.
9.8 All Subscription Fees:
(a) are inclusive of all applicable goods and services taxes, sales taxes or value added taxes.
(b) will be paid by you in the currency specified by us when you subscribe to the Service.
9.9 We may use third-party payment platform provider to process and collect the Subscription Fees due from you. That third-party payment platform provider may have its own policies and procedures that you must adhere to. We are not responsible for the acts or omissions of any third-party payment platform provider, as we have no control over their business operations or practices.
10. DATA SECURITY AND PRIVACY
10.1 We will exercise reasonable efforts to ensure the security of your communications when you use or access the Service. However, for reasons beyond our control, we cannot promise or guarantee that such communications will be completely secure.
11. WARRANTIES AND LIABILITY
11.1 The Location Devices are supplied with a one-year warranty from the date of original retail purchase covering defects in materials and workmanship. Please see www.black-int.com/pages/returns-refunds-and-warranty for details of this warranty and how to make a warranty claim. Your remedy for any Service failure resulting from a defective Location Device will be for us to repair or replace the Location Device, or provide a refund for that Location Device, subject to the terms and conditions of that warranty. You may have additional rights or remedies under applicable law if you have acquired the Location Device as a consumer.
11.2 We warrant and represent to you that:
(a) we are entitled to provide the Service subject to the terms of these Conditions; and
(b) to the best of our knowledge, the use and accessing of the Service by you will not infringe the Intellectual Property Rights of any third party, provided that no such warranty or representation is given to the extent that any such infringement arises as a result of your breach of these Conditions.
11.3 You acknowledge that, subject always to any rights and remedies you may have as a consumer (see clause 12):
(a) we are not responsible for any loss or corruption of any data or other information contained within or created using the Service. You are responsible for ensuring your own backup of any data accessed from the Service;
(b) in entering into these Conditions, you do not rely on any representation, warranty, term or condition that is not expressly provided or referred to in these Conditions; and
(c) all conditions, warranties or other terms implied by statute or common law are excluded from these Conditions, to the fullest extent permitted by law.
11.4 Without limiting the scope of clause 11.3, we do not give any warranty, representation or undertaking:
(a) about the efficacy or usefulness of the Service, or about any fitness for a particular purpose or merchantability;
(b) that the Service will be free from bugs, defects, errors or outages; or
(c) that any data generated or accessible via the Service will be accurate or complete.
11.5 Without limiting clauses 11.3 or 11.4, our maximum liability to you (whether in contract, tort, negligence or in any other way) arising out of any and all claims under these Conditions or relating to your use of the Service, will not in any circumstances exceed in aggregate the total Subscription Fees actually paid in the 12-month period prior to the date such liability first arose.
11.6 In no event will we be liable (whether in contract, tort, negligence or in any other way) to you for:
(a) loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of data or wasted management or staff time; or
(b) loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature,
arising directly or indirectly from the Service or these Conditions, even if we had been advised of the possibility of such loss, damage, cost or expense, and even if such loss, damage, cost or expense was reasonably foreseeable by us.
11.7 Where you have acquired the Service in New Zealand for the purposes of your business, then for the purposes of section 5D of the Fair Trading Act 1986 (New Zealand) (FTA) and section 43 of the Consumer Guarantees Act 1993 (New Zealand) (CGA), you and we acknowledge and agree that:
(a) the Service is being provided and acquired in trade; and
(b) to the extent permitted by law, in respect of all matters covered by these Conditions, the parties are contracting out of the CGA and sections 9, 12A and 13 of the FTA.
11.8 You acknowledge and agree that no third-party telecommunications or networks provider will have any liability to you for loss or damage of any kind arising from your use of the Service. This clause 11.8 creates an obligation that such third parties can enforce as a defence to any claim by you.
11.9 None of the exclusions or limitations set out in these Conditions is intended to limit or exclude any form of liability that cannot be so limited or excluded under applicable law. See also clause 12 for details of the additional rights and remedies you may have if you are a consumer.
12. YOUR RIGHTS UNDER CONSUMER LAW
12.1 The Consumer Guarantees Act 1993 (New Zealand) and the Competition and Consumer Act (2010) (including the Australian Consumer Law) (Australia) (together the Consumer Laws) give consumers certain legal rights and remedies in relation to the quality and fitness for purpose of services provided in those countries. The Consumer Laws include guarantees that services will be carried out or rendered with due care and skill and will be reasonably fit for purpose.
12.2 You may have rights and remedies against us in relation to the Service if you have acquired the Service as a “consumer” under the applicable Consumer Laws. Accordingly:
(a) any rights or remedies you may have against us under the Consumer Laws are in addition to any rights and remedies you may have under these Conditions; and
(b) nothing in these Conditions purports to modify or exclude any of the legal obligations we may have to you, or any legal rights or remedies you may have against us, as a consumer under the Consumer Laws.
13. INDEMNITY BY YOU
13.1 You agree to defend, indemnify and hold harmless us and our service providers, and the subsidiaries, affiliates, directors, officers, employees and agents of us and our service providers (Indemnitees) against any and all claims, liabilities, losses, damages, costs and expenses that may arise as a result of:
(a) any breach by you of any of these Conditions; or
(b) any damage or injury to persons or property arising from your misusing the Service.
14. TRANSFER OF LOCATION SERVICES
14.1 You may reallocate your Location Device to a new user, for example where you have sold or transferred the property on which the Location Device was installed. The new user will need their own subscription to the Service if they want to use that Location Device. Please see the FAQ section of our website at black-int.com for details of how to reallocate your Location Device to a new user.
15. TERM AND CANCELLATION
15.1 These Conditions will come into effect on the date that we first provide you with access to the Service, and will continue in full force and effect until your subscription lapses under clause 15.2 or your subscription to the Service has been cancelled under any of clauses 15.3, 15.5 or 15.6.
15.2 We will not be obliged to renew your subscription to the Service beyond your then current Service subscription period. If we allow you the opportunity to renew your subscription to the Service beyond your then current Service subscription period, you may renew that subscription by paying the applicable Subscription Fees for the renewal period. If you do not renew your subscription before the end of any Service subscription period, your subscription will lapse at the end of your then current Service subscription period.
15.3 You may elect to cancel your Service subscription at any time prior to expiry of your then current Service subscription period. To cancel your Service subscription early, you must follow the steps outlined at the FAQ section of our website at black-int.com for cancelling a user subscription. No refund of any Subscription Fees will be payable to you if you elect to cancel your subscription prior to expiry of your then current Service subscription period.
15.4 As an alternative to cancelling your Service subscription entirely, you may elect to deregister particular Location Devices, while maintaining your Service subscription in respect of other Location Devices. Upon deregistration you will longer be able to use the Service in connection with the deregistered Location Devices, unless you reregister them pursuant to clause 16.
15.5 We may elect to cancel your Service subscription by giving written notice to you if we are unable to continue to provide the Service for reasons beyond our reasonable control. This includes where a service provider ceases to make available to us the network or telecommunication services necessary for us to provide the Service on commercially reasonable terms and conditions. In such event, we will endeavour to give you reasonable notice of any such cancellation (where this is reasonably possible), and will refund to you all Subscription Fees paid by you for any period following the date of such cancellation.
15.6 We may also elect to cancel your Service subscription with immediate effect by giving written notice to you if:
(a) you are in breach of these Conditions; or
(b) any Subscription Fee payment due is declined, dishonoured or unpaid,
and if we cancel your Service subscription in such circumstances you will not be entitled to a refund of any Subscription Fees paid by you.
15.7 If we are entitled to cancel your subscription under clause 15.6 we may instead elect to suspend your access to or use of the Service with immediate effect by giving written notice to you. Any such suspension will be lifted only when the breach or payment issue giving rise to such suspension has been resolved to our satisfaction. Pending the lifting of any such suspension we retain the right to cancel your Service subscription under clause 15.6. You will not be entitled to a refund or credit for any Subscription Fees paid by you covering any period of suspension.
15.8 In the event of the cancellation or lapsing of your Service subscription under any of clauses 15.2, 15.5 or 15.6:
(a) we will cease to provide the Service, though we may allow you to continue to access the Asset Register, and you will cease to use and access the Service;
(b) the provisions of clauses 4.2, 5.1 to 5.3, 10.1 to 10.4, 11.1 to 11.9, 12.1, 12.2, 13.1, 15.3, 15.5 to 15.8, 16.1 to 16.5, 17.1 to 17.5 and any other clauses intended to survive cancellation or lapsing, together with those other provisions of these Conditions that are incidental to, and required to give effect to those clauses, will remain in full force and effect; and
(c) subject to this clause 15.8 and except for any rights and remedies of the parties that have accrued before cancellation or lapsing, including for any prior breach of these Conditions, neither party will be under any further obligation to another party.
16. RESUBSCRIBING OR REREGISTERING
(a) your Service subscription has lapsed or been cancelled, we may at our discretion permit you to resubscribe to the Service (Resubscribe); or
(b) your Service subscription has not lapsed or been cancelled but you have deregistered a Location Device, we may at our discretion permit you to reregister that Location Device (Reregister).
16.2 If you wish to Resubscribe or Reregister, you must pay:
(a) the Subscription Fees you would have paid for the period prior to your Resubscription or Resubscription, had your Service subscription not lapsed or been cancelled, or had you not deregistered the applicable Location Device (as the case may be);
(b) the applicable Subscription Fees for the new subscription period; and
(c) a reconnection fee. Details of our current reconnection fee rates can be found at the FAQ section of our website at black-int.com, and we will notify you of the applicable reconnection fee before you confirm any Resubscription or Reregistration.
16.3 Any Resubscription will otherwise be treated as a new subscription to the Service and will be subject to our then current Service subscription terms and conditions.
16.4 We reserve the right from time to time to send location requests to Location Devices that are the subject of lapsed or cancelled Service subscriptions, or that have been deregistered (for example, where the property in which the Location Device was installed has been reported as lost or stolen). If we locate a Location Device as a result of such activities, we may contact you and give you the option to Resubscribe or Reregister (as the case may be) on the terms set out in this clause 16.
16.5 We do not warrant or represent that we will be able to action any Resubscription or Reregistration request. Our ability to do so will depend on a range of factors, including the availability of the Service at the time and the compatibility of the Service at the time with the applicable Location Device. We may also elect to not allow you to Resubscribe where we had cancelled your earlier Service subscription pursuant to clause 15.6.
17.1 We will not be liable for any failure to provide the Service due to an event of Force Majeure. For the purposes of this clause 17.1, Force Majeure includes any inability to obtain supplies or labour, industrial disputes, delays, act of God, fire, flood, storm, adverse weather conditions, or other matters beyond our reasonable control.
17.2 These Conditions embody the entire agreement of the parties in relation to the subject matter of these Conditions and supersede all prior understandings, communications and representations between the parties, whether oral or written. The parties acknowledge that they do not rely on any representation, agreement, term or condition that is not set out in these Conditions.
17.3 You may not assign, transfer or sub-contract any of your rights or obligations under these Conditions, without first obtaining our written consent.
17.4 We reserve the right to change these Conditions at any time, provided that we will not make any change to these Conditions during your Service subscription period in any way that materially adversely affects your rights under these Conditions or your access to or use of the Service, without your prior consent. No other amendment to these Conditions will be effective unless in writing and signed by an authorised representative of us.
17.5 These Conditions will be governed by the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.