Terms of Use

Last updated: 28 November, 2023

These terms of Use govern your use of Kascade. Kascade Design Limited reserves the right in its sole discretion to modify or change these terms and conditions at any time by posting revised or new Terms of Use on the Kascade website at http://kascade.design/terms-of-use or any other websites we may also own or operate. Your use of Kascade constitutes your acceptance and agreement to be bound by these Terms of Use, as may be varied by us from time to time.

1. DEFINITIONS AND INTERPRETATION

1. Definitions: In these Terms of Use –
2. The Agreement means that the agreement herein between Kascade Design Limited and the Account Holder, in consideration of payment of the Charges by the Account Holder for Kascade Design Limited to provide Kascade services to the Account Holder and their Authorised Users in accordance with these Terms of Use
3. Account Holder means the person or entity who has entered into the above Agreement with Kascade Design Limited and who has authorised you to access Kascade.
4. Authorised User means a user who uses the Account Holder’s Kascade Account to access and use Kascade for the Permitted Purpose. 
5. Business Day means any day of the week, other than a Saturday, Sunday or a statutory holiday in Wellington, New Zealand.
6. Business Hours means the hours between 9:00am and 5:00pm on a Business Day.
7. Charges means the charges for your Kascade Account subscription, and they may be changed by Kascade Design Limited at any time by giving the Account Holder one month’s prior notice of such change.
8. Information means any data, information, text, images, or other material contained within or sourced from Kascade.
9. Intellectual Property or IP means all rights and interests in and to the trade marks, inventions, patents, designs, copyrights, moral rights, database rights, know-how, data and confidential information, business names, trade names, service mark,, domain names, layout designs, software (including, without limitation, in source and object codes) and any similar rights in any part of the world, including any registration of such rights and applications for such registrations.
10. Permitted Use means: your own internal business use.
11. Related Company has the meaning given to that term in section 2(3) of the Companies Act 1993.‍
12. Suspension Event has the meaning given to that term in clause 3(a) of these terms of use.
13. You means the The Account Holder and Authorised Users who access and use the Kascade Account and“your has a corresponding meaning.
14. Kascade means the our Kascade design programme and services licensed to you by us Kascade Design Limited under these Terms of Use.
15. Interpretation: In these Terms of Use:
16. i. words importing the singular include the plural and vice versa; 
    ii. the terms "including", "includes" and "include" include the words "without limitation" after those terms; 
    iii. a reference to a person includes a company, other corporations and also a body of persons (corporate or unincorporate); 
    iv. where words or expressions are defined, other parts of speech and grammatical forms of that word or expression have corresponding meanings; 
    v. headings are for ease of reference only and do not affect the interpretation of this Agreement; 
    vi. a reference to dollars or $ is a reference to United States currency; and 
    vii. the meaning of general words is not limited by specific examples introduced by including or similar expressions

2. LICENSE & USE

• Licence: In accordance with the agreement herein Kascade Limited grants you a non-exclusive, non-transferable,, non-sublicensable licence to access and use Kascade during the term of the agreement, only for the Permitted Purpose and Permitted use on the terms set out in these Terms of Use.
• Per user licence: The licence herein granted is for individual users who have access to Kascade. For the avoidance of doubt, each Authorised User requires a Kascade Licence under these Terms of Use.
• Permitted use: You may use the data for your own lawful business or professional purposes, including data utilisation within your business, and database backups.
• Prohibited use: You must not access or use Kascade for any purpose other than the Permitted Purpose, and except as otherwise expressly permitted by these Terms of Use , you will ensure all persons associated with your Kascade Account do not  and will not either themselves or with third parties modify, copy, prepare derivative works of, decompile or reverse engineer any of Kascade’s services; remove any copyright, trademarks or other proprietary notices; transfer or assign Kascade to another person or mirror Kascade on any other server; knowingly or negligently use Kascades services in a way that abuses or disrupts our network or Kascade services; use Kascade services for any unlawful purpose, or in breach of any applicable law, or use Kascade’s services in any way that may breach the privacy rights, intellectual property rights, or other rights of third parties.
• Ownership of Content: You may submit input into Kascade and receive results or generated results output that are developed by using Kascade’s services, and both input and output will be deemed to be content. You will be responsible for the input you submit, including ensuring it is not in breach of any copyright, laws or these Terms of Use. As between the parties Kascade owns all right, title and interest in the Kascade services, and you retain ownership to all input and output to the extent each party have such right, title, and interest in them, subject to your compliance with these Terms of Use to the full extent permitted by any applicable laws. Except as expressly stated in these Terms of Use, each party retains all right title and interest in and to their own intellectual property rights. All rights not expressly granted are reserved and no licence, covenant, transfer or other right will be implied except as set out in these Terms of Use.
• Non-exclusivity of output: It is agreed by the parties that the output and content generated by your use of Kascade may be similar to other output or content generated by other Kascade users, and such output or content generated by other users will not be deemed to be your content.
• Authorised Users: As part of the Kascade registration process you will be required to provide a username and password for your Kascade Account, and you undertake that all registration information you provide is true, accurate, and complete and that you will update and maintain the accuracy of such information. Further you undertake that you will be responsible for and liable at all times for maintaining control over your Kascade Account, including the confidentiality of your username and password, and you will be solely responsible for all activity on or through that Account and all Authorised Users Accounts, whether authorised bv you or not.

3. SUSPENSION AND TERMINATION

• Suspension: We may at our discretion suspend your access to Kascade if one of the following circumstances exist (Suspension Event) or otherwise as we see fit, until such time as:, 
  i. We become aware of any breach of these terms and conditions by you. 
  ii. That our charges associated with your use of Kascade are overdue.
• Effect of suspension: You will cease to have access to Kascade  for the period of suspension.
• Termination: The Account Holder may terminate the Agreement at any time by cancelling the service via the Kascade service, and the Kascade service will be terminated at the end of your then current billing cycle. If Kascade is cancelled, there will be no refunds of any charges paid or due for payment prior to the cancellation. We may terminate the Agreement immediately on written notice to the Account Holder for any breach of these Terms of Use, or for any other reason by giving the Account Holder at least one months' prior written notice.. On termination of the Agreement, the licence granted under the agreement (and these terms of use) shall terminate immediately. You will cease to have access to Kascade from the termination date.
• Breach by an individual: Any breach of these Terms of Use by you or your Authorised Users will be deemed to be a breach by the Account Holder.

4. SUPPORT INCLUDED:

Kascade Design Limited will provide email support and will be available during New Zealand Business Hours by emailing support@kascade.design.

5. INTELLECTUAL PROPERTY RIGHTS

1. Ownership of IP: Kascade Design Limited and its licensors own all rights (including Intellectual Property rights) in Kascade (including any Information). The Agreement does not confer any ownership or proprietary right on you. You must not, nor may you permit any other person to: 
   i. alter, remove, or tamper with any Intellectual Property used in association with Kascade  (including any Information); or 
   ii. do any act that would or might invalidate or be inconsistent with Kascade Design Limited and its licensors' Intellectual Property rights. ‍
2. Protection of IP: You must adhere to any security protocols advised by Kascade Design Limited or Kascade Design Limited’s licensors for the purpose of protecting Kascade Design Limited (and its licensors') Intellectual Property against unauthorised use and disclosure.

6. DISCLAIMER

1. No warranty: Notwithstanding anything to the contrary in these Terms of Use, the Kascade services are provided “as is” without warranty of any kind and without any performance obligations. To the fullest extent possible under New Zealand law we disclaim any implied warranties of merchantability, fitness for a particular purpose, quiet enjoyment, and non infringement any any warranties arising out of a course of dealing or usage of trade, and you acknowledge any data the Account Holder or an Authorised User uses with in connection with Kascade may be permanently lost unless you export such data. Further, you acknowledge that the Information used to provide Kascade includes that from a number of third parties, While all reasonable endeavours will be taken to provide up to date and accurate Information,, all representations or warranties in relation to that Information and Kascade, including the completeness, accuracy, fitness for purpose or otherwise, are excluded to the extent permitted by law. Kascade Design Limited gives no warranties that Kascade or the Information (i) is compatible with and capable of being processed on your computer equipment or software, or (ii) will be free from infection, viruses or destructive code. 
2. Availability: We will use our reasonable best endeavours to make Kascade available 24 hours a day, 7 days a week, subject to any routine, planned and unplanned maintenance or other outage. We will endeavour to give you advance notice of any routine or planned maintenance. We are not liable to you for any non-availability of Kascade. 
3. Modification etc: We may change, modify, restrict access to, suspend or discontinue any parts of Kacade at any time without notice or liability to you.

7. LIMITATION OF LIABILITY

1. Limitation of liability: Kascade Design Limited shall have no liability or responsibility to you for any loss (including consequential loss of business or profits or profits or other loss), damage or injury whether arising in contract,tort equity or otherwise suffered or incurred, whether or not due to any circumstance within or outside the control of Kascade Design Limited. Where any liability cannot be excluded at law, then the liability of Kascade Design Limited shall be limited to the value of any charges paid by the Account Holder to us in the preceding 12 month period. 
2. Indemnity: You will indemnify and hold harmless Kascade Design Limited, its Directors, Employees, Contractor’s and Agents from and against any claims, disputes, demands, liabilities, damages, losses, costs and expenses including reasonable legal costs on a Client Lawyer basis and accounting costs, arising out of or in any way connected with your access or use of Kascade, your user content including any any breach of copyright by you or any Authorised User, or any breach of these Terms of Use.

8. PRIVACY

• Our use of personal information: is an Agency for the purposes of the Privacy Act 2020. You may be contacted by independent auditors and asked to confirm that you have registered for Kascade, and  accordingly, you may not register any personal information other than your own. You acknowledge that personal information (including user name protocol information) may be passed by  to its Related Companies, suppliers or other third parties for the purposes of providing you with Kascade.
  You have the right to access your personal profile and correct any of your personal information recorded. ‍
• Your use of personal information: You are responsible for ensuring that your use of any personal information contained within Kascade is in compliance with the Privacy Act 2020. ‍
• Username and password: You must keep your username and password for Kascade private and not provide them (or allow them to be provided) to any other person. Kascade Privacy Notice: Kascade’s Privacy Notice  can be viewed at: https://www.kascade.design/privacy-policy

9. ELECTRONIC MESSAGES FROM KASCADE DESIGN LIMITED

1. Electronic messages: You consent to receiving electronic messages from Kascade Design Limited from time to time which may include emails that market or promote Kascade Design Limiteds services (“Marketing Emails”). However Kascade Design Limited will cease to send you any such Marketing Emails if at any time you instruct us to do so in writing, and.Kascade Design Limited will include a functional unsubscribe facility to cease sending Marketing Emails to you.

10. GENERAL

1. Governing law: These terms of use will be governed by and construed in accordance with the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand Privacy Act 2020. You may be contacted by independent auditors and asked to confirm that you have registered for Kascade, and  accordingly, you may not register any personal information other than your own. You acknowledge that personal information (including user name protocol information) may be passed by Kascade Design Limited to its Related Companies, suppliers or other third parties for the purposes of providing you with Kascade..You have the right to access your personal profile and correct any of your personal information recorded. ‍
2. Your use of personal information: You are responsible for ensuring that your use of any personal information contained within Kascade is in compliance with the Privacy Act 2020.
   Username and password: You must keep your username and password for Kascade private and not provide them (or allow them to be provided) to any other person.
   ‍Assignment by you: You may not assign, transfer, or otherwise dispose of any benefits, rights, liabilities or obligations under these Terms of Use without our prior written consent. ‍
3. Consumer Guarantees Act: If you are using Kascade for business purposes, you agree that the provisions of the Consumer Guarantees Act 1993 will not apply.‍
4. Fair Trading Act: You agree that sections 9, 12A, 13, and 14(1) of the Fair Trading Act will not apply, and that contracting out of these provisions is fair and reasonable.‍
5. Notices: Unless specified otherwise,,all notices given under these Terms of Use must be in writing and may be given by either party to the other by personally serving it on the party, or by sending it by courier registered mail or post,or email to the other party at the address or email address set out in the Application Form (or to such other address as the party to be notified may advise for the purpose from time to time). Kascade Design Limited may also give notice by posting on the Kascade website. Any notice will be deemed to be received: 
   i. if personally served or sent by courier or registered mail, at the time when it was actually delivered; 
   ii. if sent by post, 3 Business Days after the time it was posted to the recipient; 
   iii. if sent by email,at the time the email leaves the communication systems of the sender, provided that the sender does not receive any error message relating to the sending of the email at the time of sending;
   iv. if posted by Kascade Design Limited on the Kascade website, at the time of posting, provided that if a notice is received by a party on a date that is not a Business Day, or the delivery is made after 5.00pm on a Business Day, then the notice will be deemed to have been received on the next Business Day. ‍
6. Changes to your details: You must notify us immediately of any changes to your details. ‍
7. No partnership or other relationship: No agency, partnership, joint venture or employment relationship shall be created as a result of of your use of Kascade and these Terms of Use.‍
8. Severability: The invalidity or unenforceability of any provision of these Terms of Use will not affect the validity and enforceability of any other provision in them, and the parties agree that these Terms of Use will be deemed to be amended by modifying such provision, to the extent necessary to render it legally valid and enforceable while preserving its intent.‍
9. We may engage Service Providers: It is acknowledged and agreed we may engage third parties as service providers to provide the Kascade services.‍
10. Assignment: These Terms of Use and your Kascade Account are not assignable and transferable by you without our prior written consent, and any purported assignment in breach of this Term of Use will be null and void.

11. Limitations and Exclusions

Your use of Kascade is subject to the following limitations and exclusions:

1. Export limitations: You hereby agree you will not use our services in violation of any applicable export or trade embargo laws.
2. Excluded terms: You hereby agree the terms of the United Nations Convention on Contracts for the Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) shall not apply to these Terms of Use.
3. Non-excludable guarantees: If in your Country there are any non-excludable warranties, guarantees or other rights provided by law (“non-excludable guarantees”) and they are applicable, then these Terms of Use will not exclude, restrict, or modify them. Except for non-excludable guarantees and other rights you have that we cannot exclude, we will bound only by the express warranties, guarantees or other rights set out in these terms, and our liability for any breach of a non-excludable guarantee will be limited at our option, to either replacing or paying the reasonable cost of replacing the relevant service for a period of 12 months, unless the relevant non excludable guarantee provides otherwise.