Terms and Conditions

Application Terms of Use

DYM Tracer (we, our, us), maintains these websites (https://drinkyourmilk.co, https://dym.nz, https://tracer.dym.nz), this app (DYM Tracer) and all associated applications (collectively Application) for your information and convenience. This document sets out the terms and conditions that govern the use of this Application (Terms). Please review these Terms carefully, especially the disclaimer and limitation of liability sections. By having an account on this Application or accessing this Application, you accept and agree to these Terms. You must not use this Application if you do not agree with these Terms.

This Application was prepared for use by New Zealand users, and may not satisfy the laws of other countries. If this is the case, we adviser that you should not use this Application if you do not reside in New Zealand, or if it does not satisfy the laws of the country which you reside.

To the extent permitted by law, we may change these Terms at any time. Please check these Terms at regular intervals for any changes. In the case of any breach of these Terms, we reserve the right to seek all remedies available at law or in equity.

Use of this Application

You are responsible for all of your activity in connection with accessing and using this Application.

You must not use this Application for any activities that breach any laws, infringe any party's rights or breach any standards, content requirements or codes promulgated by any relevant authority. You must not distribute through this Application any inappropriate communication or any virus or other disabling code in any form.

You must not bypass any security mechanisms imposed by this Application, or tamper with, hinder the operation of or make unauthorised access or modifications to this Application.

Certain parts of this Application may be restricted to certain users, and other terms of use may apply to the use of these parts of this Application (Other Terms). To the extent of any inconsistencies between these Terms and the Other Terms, the Other Terms will prevail.

Disclaims relating to the Application

We do not warrant that access to this Application will be uninterrupted, or the the services and features offered on this Application will be error-free. We reserve the right to change or discontinue any feature on this Application, the availability of this Application and the software required to access it.

The information on this Application is provided for information purposes, general interest and enquiry only. While we use reasonable efforts to ensure that the information on this Application is complete and up to date, to the extent permitted by law, we make no warranty or representation as to the accuracy, currency or completeness of any information on this Application. The use of this Application is at your own rick. Information may change without notice. Before relying on any information on this Application, you should first verify the accuracy of the information and its relevance.

To the extent permitted by law, we exclude all other warranties, guarantees, terms and conditions (whether express, implied or statutory) relating in any way to this Application, its content or its use. Our liability for breach of any warranty, guarantee, term or condition implied into these Terms cannot be excluded is limited, where permitted by law, to the re-supply of that part of this Application again or, at our option, the payment of the costs of having an equivalent service supplied again.

Support for the Application

From time to time we will make available amended versions, releases, updates, bug fixes and error correction and other modifications to the Application (collectively Updates). All Updates will be deemed a part of the Application and licensed to you under your subscription.

We will provide you with access to the our Support page (found on our website) to log issues and faults suggestions with the Application. We will attend to logged issues on a prioritised basis during our normal business hours Monday to Friday (excluding public holidays).

We will use reasonable endeavours to correct Application faults through Updates. Application faults are a function of an item of the Application not operating in accordance with the design of the Application. We will use our reasonable endeavours to correct Application faults:

which are not attributable to malfunction of equipment or software other than the Application; or
are not attributable to incorrect use of the Application by you.

We will at our own option either advise you as to the correction or avoidance of the Application faults or make available Updates in a timely manner.

Limitation of Liability

You agree that our cumulative liability for damages under or in connection with these Terms, regardless of the form of action, is limited to the fees paid by you to us in the 12 months preceding the claim event. In no event shall we be liable (regardless of the form of action, whether in contract, tort, or otherwise) for any indirect, special incidental, exemplary, punitive or consequential damages (including, without limitation, any loss of data or records, lost profits or other economic loss) arising out of or in connection with these terms and/or any obligation of confidentiality, even if we have been advised of the possibility of, or could have foreseen, such damages or losses. You acknowledge and agree that the amount of fees payable under these Terms is related to the foregoing limitations on our liability and that the fees would be greater if our liability was not so limited.

Intellectual Property

As between the parties, all copyrights and all other intellectual property rights in or related to the Software and the services provided by or on behalf of us shall remain at all times the property of DYM Tracer and/or its users and you shall acquire no rights in any foregoing except as expressly provided in these Terms. You agree not to, and not to permit others to, use, copy, reproduce, display, deploy, perform, distribute, transmit, make available, or create derivative work of the Application or Documentation to decompile or reverse engineer any of the Application provided by or on behalf of us, except as expressly permitted at law to do so.

Title to, and all intellectual property rights in, the data stored by the Application remans with you (“Data”). However access to the Data is contingent on you having a current subscription and any applicable Fees being paid in full and on time.

Data Protection

For the purpose of this clause “data controller”, “data processor”, “data subject”, “personal data”, “personal data breach”, “processing”, “sub-processor”, “supervisory authority” and “appropriate technical and organisational measures” shall have the meanings ascribed to them in the Data Protection Legislation. “Data Protection Legislation” means applicable legislation protecting the personal data of natural persons, including the EU Data Protection Directive 95/46/EC and Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 (“GDPR”), together with binding guidance and codes of practice issued from time to time by relevant supervisory authorities.

The parties acknowledge and agree that you are the data controller in respect of any personal data that we may process in the course of providing the Application (other than business contact data processed by us to allow us to manage your account). The parties acknowledge that New Zealand is a country which the European Commission has recognised as ensuring an adequate level of protection for the rights of individuals in connection with the transfer of their personal data outside the European Economic Area.

We agree to:

only use or handle the data transferred by you within the framework of these Terms and on the instruction of you or as otherwise required by applicable laws;
promptly refer to you any requests, notices or other communication from data subjects, the Information Commissioner or any supervisory authority, for you to resolve;
Provide such information to you as you may reasonably require, and within the timescales reasonably specified by you, to allow you to comply with the rights of data subjects, including subject-access rights, or with notices served by the Information Commissioner or other supervisory authority;
within 90 days of termination of these Terms, return to you or delete all personal data processed under these Terms;
implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk associated with our processing of the personal data; and
promptly notify you upon becoming aware of any personal data breach.

You warrant that you:

own or have obtained all necessary rights, title and interest in the personal data and all intellectual property rights and other rights contained therein, as well as the consent of any data subjects, necessary for the parties to perform their respective obligations under there Terms;
have disclosed to the data subjects in compliance with applicable laws how you will collect, use and disclose personal data; and
will use the personal data in accordance with these Terms and that such use will not constitute an infringement of the intellectual property rights, publicity or privacy or other proprietary rights of a third party, or the violation of any applicable laws, rules or regulations or a violation of any applicable privacy policy or terms and conditions.
will indemnify us from and against all reasonable losses, damages, costs, liabilities and expenses (including reasonable legal expenses) arising out of or in connection with your breach of this clause.

Security

We take reasonable steps to protect the information that you transmit using this Application. However, we cannot guarantee the security of any information that you transmit to us using this Application. Therefore, any information you transmit using this Application is transmitted at your own risk. When using this Application, you must take precautions to ensure that you are not exposed to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer/device system. We do not accept responsibility for any such interference or damage to your systems which arises in connection with your use of this Application.

Term and Termination

These Terms become effective on the date that the Application is first accessed by you.

We, in addition to all other rights and remedies, have the right to terminate these Terms and all licence rights granted to you by notice in writing to you if:

you breach any material term of these Terms; or
you become insolvent or bankrupt, or enter into liquidation or receivership under the law of any jurisdiction, whether compulsory or voluntary; or
The Application is hosted on a third party's platform and the third party determines not to host the Application for any reason;

You may terminate these Terms and your right to use the Application, with or without cause, at any time by discontinuing your use of the Application, and by deleting all copies of the Application from your computers, devices and systems.

Disputes

The parties must use all reasonable efforts in good faith to resolve any dispute which arises between them in connection with these Terms. This provides for a form of alternative dispute resolution and is not a reference to arbitration.

A party will, as soon as reasonably practicable, give the other party notice of any dispute in connection with these Terms.

Any dispute will be referred initially to a designated representative of us and your designated representative, who will endeavour to resolve the dispute within 10 days of the giving of the notice; and if the dispute is not resolved within the 10 days, to your Chief Executive and our Chief Executive who will endeavour to resolve the dispute within a further 10 days.

If following the dispute resolution procedure set out above, the parties fail to resolve the dispute then the parties will try to settle the dispute by mediation before resorting to litigation. Either party may initiate mediation by giving written notice to the other. The mediator shall be agreed by the parties but if the parties cannot agree on one within 5 days after the mediation has been initiated, then the mediator shall be selected by the President of LEADR Inc. (Lawyers Engaged in Alternative Dispute Resolution) or its successor.

No formal proceedings for the judicial resolution of any dispute between the parties may be commenced until a dispute has proceeded through the dispute resolution processes set out above; provided that, with respect to any claim by us of actual or alleged infringement of any confinedtiality or intellectual property right of, or licensed to DYM Tracer, DYM Tracer, in its sole discretion, may at any time seek judicial resolution with or without resorting to the dispute resolution and mediation processes set out above; and

All dispute resolution procedures shall be held in Palmerston North, New Zealand, unless otherwise agreed in writing.

General

No waiver of any breach of any provisions of these Terms shall constitute a waiver of a prior, concurrent or subsequent breach of the same or any other provision, and no waiver shall be effective unless made in writing.

Neither party shall issue any publicly disseminated statement using ht name of the other party without that party’s consent (not to be unreasonably withheld or delayed). Notwithstanding, we may list your name and logo alongside our other clients on our website and in marketing materials, unless you have withdrawn such permission in writing.

We intend that the Application will be available to the fullest extent possible. There will be occasions that the Application may be unavailable to allow for maintenance or development activities to take place. We will endeavour to publish in advance to you when such activity will take place when we consider that the non-availability will be longer than normal expected.

These Terms contain the entire agreement between us and you with respect to the Application and the provision of it you by us, including, but not limited to, the licencing of the Application and provision of support.

These Terms are governed by the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the New Zealand courts.

You must not assign, transfer or grant a security interest in its rights under these Terms except if approved in writing by us.