Terms of Service
These Terms and Conditions govern your access to and use of the services provided by Data Mahi Limited (NZCN 8381624) trading as Kamal (we, us or our). The Agreement is entered into between us and you, together the Parties and each a Party.
1. Our Services
We provide the following services to you:
access to our Platform;
onboarding services to configure and integrate your systems with our Platform;
integration services connecting your Xero, ATS, timesheet systems and other approved third-party systems to our Platform; and
access our troubleshooting support (Support Services),
(collectively, our Services).
We will not be responsible for any other services unless expressly set out on in the Agreement or on our Platform.
Where we require access to your premises or computer systems in order to provide our Services, you agree to provide us with such access free from risk to the safety of our employees and contractors.
Onboarding Services
You must complete Onboarding before accessing our Platform. Onboarding timeframes may vary depending on your systems and how quickly you provide access and information.
Any data issues that relate to third-party systems we integrate with (including but not limited to your Xero, ATS or timesheet systems) will not prevent Onboarding from being deemed complete for the purposes of the Agreement, and all Fees will remain due and payable.
After Onboarding, you have 14 days to request configuration changes at no extra cost (Review Period). We will walk you through your dashboards during this period.
After the Review Period, any configuration changes are charged at the hourly rate in the Order Form.
Your Subscription Period will commence once onboarding is complete.
Support Services
If you require Support Services, you may request these by getting in touch with us through our Platform.
Unless we agree otherwise, Support Services cannot be used to support any other products or services, and does not include training, installation of software or hardware, software development or the modification, deletion or recovery of data or any on-site services.
Additional Services: If you require additional services, we may, in our sole discretion, provide such additional services (to be scoped and priced in a separate contract provided by us).
Third Party Products or Services: Where you engage third parties to operate alongside our Services (for example, any third-party software systems you wish to integrate with our Platform), those third parties are independent of us and you are responsible for (meaning we will not be liable for) the goods or services they provide, unless we expressly agree otherwise under clause 1.12.
All variations to our Services must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instructions or directions from you constitute a variation to the scope of our Services or our obligations under the Agreement, then we will not be obliged to comply with such instructions or directions unless agreed in accordance with this clause.
Notwithstanding clause 1.15, you agree that we may vary our Services or the Price at any time, by providing 30 days' written notice to you (Variation Notice Period). If you do not agree to any amendment made to our Services or Price, you may, before the end of the Variation Notice Period, terminate the Agreement by giving us 30 days' notice in writing, in which case, the proposed variation will not come into effect, your Subscription will be cancelled and clause 10.3 will apply. Upon cancellation of your Subscription:
you will no longer be able to access our Services (including our Platform) on and from the date of cancellation; and
if you have paid Subscription Fees upfront, you will be issued a pro-rata refund based on the portion of the Subscription Period remaining.
2. Account
You must sign up for an Account in order to access and use our Platform.
You may invite Authorised Users to access and use our Services under your Account. Your Subscription may include different types of Authorised Users (for example, Admin Users and Standard Users), each with different access rights and permissions as set out in the Order Form or as configured through your Account.
Each of your Authorised Users will require a login (which is linked to your Account), in order to access and use our Platform. You are responsible for ensuring that your Authorised Users comply with the Agreement. You may change who your Authorised Users are at any time through your Account, and what access rights or permissions they have when using our Platform. Any limitations on the number of Authorised Users will be set out in the Order Form.
While you have an Account with us, you agree to (and to ensure your Authorised Users agree to):
keep your information up-to-date (and ensure it remains true, accurate and complete);
keep usernames and passwords secure and confidential, and protect them from misuse or being stolen; and
notify us if you become aware of, or have reason to suspect, any unauthorised access to your Account or any logins linked to your Account.
We may suspend your access to our Services where we reasonably believe there has been any unauthorised access to or use of our Services (such as the unauthorised sharing of login details for our Platform). If we suspend your access to our Services, we will let you know within a reasonable time of doing so, and we will work with you to resolve the matter, or if it cannot be resolved, then we may terminate your Account and your access to our Services will end.
3. Subscriptions
The details of your Subscription are set out in the Order Form, including the Subscription Features, Subscription Fees and Subscription Periods.
During the Subscription Period, you will be billed for the Subscription Fees on a recurring basis, as set in the Order Form (Billing Cycle).
You will be billed for any Subscription Fees due at the beginning of each Billing Cycle. If you choose to pay your Subscription Fees using one of our third-party payment processors, you may need to accept their terms and conditions (if this is the case, these will be set out on our Platform).
You must not pay, or attempt to pay, any Subscription Fees by fraudulent or unlawful means. If you make payment by debit or credit card, you must be the authorised card holder. If payment is made by direct debit, by providing your bank account details and accepting the Agreement, you authorise our nominated third-party payment processor to debit your bank account in accordance with your chosen Subscription, and you confirm that you are either the holder or an authorised signatory of that bank account.
Late Payments: If any Subscription Fees are not paid on time, we may:
suspend your access our Services (including access to our Platform); and
charge interest on any overdue payments at a rate equal to the Reserve Bank of New Zealand's cash rate, from time-to-time, plus 2% per annum, calculated daily and compounding monthly.
Taxes: You are responsible for paying any levies or taxes associated with your use of our Services, for example sales taxes, value-added taxes or withholding taxes (unless we are required by law to collect these on your behalf).
4. Platform Licence
While you have an Account, we grant you and your Authorised Users a right to use our Platform (which may be suspended or revoked in accordance with the Agreement). This right cannot be passed on or transferred to any other person and, if you have a Subscription, will also be subject to the conditions of your Subscription (as set out in the Order Form).
You must not (and you must ensure that your Authorised Users do not):
access or use our Platform in any way that is improper or breaches any laws, infringes any person's rights (for example, intellectual property rights and privacy rights), or gives rise to any civil or criminal liability;
interfere with or interrupt the supply of our Platform, or any other person's access to or use of our Platform;
introduce any viruses or other malicious software code into our Platform;
use any unauthorised or modified version of our Platform, including but not limited to for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to our Platform;
attempt to access any data or log into any server or account that you are not expressly authorised to access;
use our Platform in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing;
circumvent user authentication or security of any of our networks, accounts or hosts or those of any third party; or
access or use our Platform to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.
5. Availability, Disruption and Downtime
While we strive to always make our Services available to you, we do not make any promises that these will be available 100% of the time. Our Services may be disrupted during certain periods, including, for example, as a result of scheduled or emergency maintenance.
Our Services (including our Platform) may interact with, or be reliant on, products or services provided by third parties, such as cloud hosting service providers. To the maximum extent permitted by law, we are not liable for disruptions or downtime caused or contributed to by these third parties.
We will try to provide you with reasonable notice, where possible, of any disruptions to your access to our Services.
6. Intellectual Property and Data
We own all intellectual property rights in our Services (including our Platform). This includes how our Platform looks and functions, as well as our copyrighted works, trademarks, inventions, designs and other intellectual property. You agree not to copy or otherwise misuse our intellectual property without our written permission (for example, to reverse engineer or discover the source code of our intellectual property), and you must not alter or remove any confidentiality, copyright or other ownership notice placed on our Platform.
We may use any feedback or suggestions that you give us in any manner which we see fit (for example, to develop new features), and no benefit will be owed to you as a result of any use by us of your feedback or suggestions.
Your Data
We do not own any of Your Data, but when you enter or upload any of Your Data into our Platform, you grant us the right to access, analyse, backup, copy, store, transmit, and otherwise use Your Data while you have an Account with us (and for a reasonable period of time afterwards). We may use Your Data (or disclose it to third party service providers) to:
supply our Services to you and your Authorised Users (for example, to enable you and your Authorised Users to access and use our Services), and otherwise perform our obligations under the Agreement;
diagnose problems with our Services;
improve, develop and protect our Services;
send you information we think may be of interest to you based on your marketing preferences;
perform analytics for the purpose of remedying bugs or issues with our Platform; or
perform our obligations under the Agreement (as reasonably required).
You acknowledge and agree that because of the nature of the internet, the processing and transmission of Your Data by us may occur of various networks, and may be transferred unencrypted.
You are responsible for (meaning we are not liable for):
the integrity of Your Data on your systems, networks or any device controlled by you or your Authorised Users; and
backing up Your Data.
When you use our Services, we may create anonymised statistical data from Your Data and usage of our Services (for example, through aggregation). Once anonymised, we own that data and may use it for our own purposes, such as to provide and improve our Services, to develop new services or product offerings, to identify business trends and industry benchmarks, create and publish industry reports, insights and benchmarking data, and for other uses we communicate to you. This may include making such anonymised data publicly available, provided it is not compiled using a sample size small enough to make underlying portions of Your Data identifiable.
If you do not provide Your Data to us, it may impact your ability to receive our Services.
7. Confidential Information and Personal Information
While using our Services, you may share confidential information with us, and you may become aware of confidential information about us. You agree not to use our confidential information, and to take reasonable steps to protect our confidential information from being disclosed without our permission, and we agree to do the same for your confidential information. This also means making sure that any Authorised Users, employees, contractors, professional advisors or agents of ours or yours only have access to confidential information on a 'need-to-know basis' (in other words, the disclosure is absolutely necessary), and that they also agree to not misuse or disclose such confidential information.
However, either you or we may share confidential information with legal or regulatory authorities if required by law to do so.
We collect, hold and disclose and use any Personal Information you provide to us in accordance with our privacy policy, available at https://kamal.ai/privacy-policy, and applicable privacy laws.
You must only disclose Personal Information to us if you have the right to do so (such as having the individual's express consent).
We may need to disclose Personal Information to third parties, such as our related companies or our service providers (for example, IT and administrative service providers and our professional advisors).
8. New Zealand Consumer Laws
To the maximum extent permitted by law, our warranties are limited to those expressly stated in the Agreement. Any implied condition or warranty (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) is excluded.
You agree and represent that you are acquiring the Services for the purposes of trade. The Parties agree that:
to the maximum extent permitted by law, the Consumer Guarantees Act 1993 does not apply to the supply of the Services or the Agreement; and
it is fair and reasonable that the Parties are bound by the Agreement, including this clause 8.2.
This clause 8 will survive the termination or expiry of the Agreement.
9. Liability
To the maximum extent permitted by law, we will not be liable for, and you release us from liability for, any Liability caused or contributed to by, arising from or in connection with:
your computing environment (for example, your hardware, software, information technology and telecommunications services and systems);
any third-party systems that integrate with our Platform (including but not limited to Xero, ATS systems, timesheet systems or any other third-party software or services); or
any use of our Services by a person or entity other than you or your Authorised Users.
Regardless of whatever else is stated in the Agreement, to the maximum extent permitted by law:
neither we or you are liable for any Consequential Loss;
a party's liability for any Liability under the Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the actions (or inactions) of the other party, including any failure by the other party to mitigate its loss; and
our aggregate liability to you for any Liability arising from or in connection with the Agreement will be limited to the amount of any Subscription Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates, or if you do not have a Subscription, to NZ$1,000.
10. Termination
We may terminate the Agreement (meaning you will lose access to our Services, including access to your Account, and any Subscription will be cancelled) if:
you fail to pay your Subscription Fees when they are due;
you or your Authorised Users breach the Agreement and do not remedy that breach within 14 days of us notifying you of that breach;
you or your Authorised Users breach the Agreement and that breach cannot be remedied; or
you experience an insolvency event (including but not limited to bankruptcy, receivership, voluntary administration, liquidation, or entering into creditors' schemes of arrangement).
You may terminate the Agreement if:
we breach the Agreement and do not remedy that breach within 14 days of you notifying us of that breach; or
we breach the Agreement and that breach cannot be remedied, and
if you have paid Subscription Fees upfront, you will be issued a pro-rata refund of any unused Subscription Fees based on the portion of the then-current Subscription Period remaining.
Upon termination of the Agreement, we will retain Your Data (including copies) as required by law or regulatory requirements.
Termination of the Agreement will not affect any other rights or liabilities that we or you may have.
11. General
Amendment: We may update these Terms at any time by publishing a revised version on its website with an updated "Last Updated" date. Your continued access to or use of our Services after the updated Terms are published constitutes your acceptance of the updated Terms.
Assignment: You may not transfer or assign the Agreement (including any benefits or obligations you have under the Agreement) to any third party without our prior written consent. We may assign or transfer the Agreement to a third party, or transfer any debt owed by you to us to a debt collector or other third party.
Disputes: Neither Party may commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, the Agreement (including any question regarding its existence, validity or termination) (Dispute) unless the Parties first meet (in good faith) to resolve the Dispute. Nothing in this clause will operate to prevent either Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
If the Dispute is not resolved at that initial meeting:
where you are resident or incorporated in New Zealand, the Dispute is to be referred to mediation, administered by the New Zealand Disputes Resolution Centre, who will decide the time, place and rules for mediation, and the costs of the mediation will be shared equally; or
where you are not resident or incorporated in New Zealand, refer the matter to arbitration administered by the New Zealand International Arbitration Centre, with such arbitration to be conducted in Auckland, New Zealand, before one arbitrator, in English and in accordance with the NZIAC Arbitration Rules.
Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under the Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:
as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.
Where the Force Majeure Event prevents a Party from performing a material obligation under the Agreement for a period in excess of 60 days, then the other Party may by notice terminate the Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party's obligation to pay any amount that is due and payable to the other Party under the Agreement.
Governing law: The Agreement is governed by the laws of New Zealand, and any matter relating to the Agreement is to be determined exclusively by the courts in New Zealand.
Illegal Requests: We reserve the right to refuse any request for or in relation to our Services that we deem inappropriate, unethical, unreasonable, illegal or otherwise non-compliant with the Agreement.
Marketing: You agree that we may send you electronic communications about our products and services. You may opt-out at any time by using the unsubscribe function in our electronic communications.
Nature of Legal Relationship: The Agreement does not create, and should not be interpreted so as to create, a partnership, joint venture, employment or agency relationship between us and you.
Notices: Any notice you send to us must be sent to legal@kamal.ai. Any notice we send to you will be sent to the email address registered against your Account. Notice will be deemed to have been served at the time of transmission in the case of email, provided no delivery failure notification has been received by the sender within 24 hours of transmission.
Publicity: You agree that, subject to your prior written consent, we may advertise or publicise the fact you are a customer of ours, for example on our website or in our promotional material, and you grant us a right to display and use your logo and branding solely for that purpose.
Subcontracting: We may subcontract the provision of any part of our Services without your prior written consent. We agree that any subcontracting does not discharge us from any liability under the Agreement and that we are liable for the acts and omissions of our subcontractor.
Survival: Clauses 6 to 10 will survive the termination or expiry of the Agreement.
Third Party Sites: Our Platform may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations in relation to the suitability of those websites. If you purchase goods or services from a third party website linked from our Platform, those goods or services are being provided by that third party, not us. We may receive a benefit (which may include a referral fee or a commission) should you visit certain third party websites through a link on our Platform, or for featuring certain goods or services on our Platform. We will make it clear by notice to you which (if any) goods or services, or website links, we receive a benefit from by featuring them on our Platform.
12. Definitions
In the Agreement, unless context otherwise requires, capitalised terms have the meanings given to them in the Order Form, and:
Agreement means these Terms and Conditions together with the Order Form (including any Service Level Agreement) executed between the Parties.
Authorised User means an individual authorised by you to access and use the Services under your Account, including Admin Users and Standard Users.
Account means an account accessible to the individual or entity who signed up to our Services, under which Authorised Users may be granted with access.
Admin User means an Authorised User with administrative access rights to your Account, including the ability to add or remove other Authorised Users, configure settings, and access all features and financial information on the Platform.
Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us any amounts for access to or use of our Services (including our Platform) will not constitute "Consequential Loss".
Commencement Date has the meaning given to it in the Order Form.
Force Majeure Event means any event or circumstance which is beyond a Party's reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or us or you or otherwise.
Onboarding means the initial setup process including system integration, dashboard configuration and user setup, which is complete once all dashboards are configured and available for you to view.
Order Form means the commercial order form executed between the Parties, which sets out the Subscription Details, Fees, Payment Terms, Subscription Period and other commercial terms applicable to your Subscription.
Personal Information means any information or opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a tangible form or not.
Platform means our cloud-based platform, available at https://app.kamal.ai/.
Review Period means the 14-day period following completion of Onboarding during which you may request configuration changes at no additional charge, as set out in clause 1.5.
Services means the services we provide to you, as detailed in clause 1.1.
Standard User means an Authorised User with standard access rights to your Account as configured by an Admin User, with limited access to features and financial information.
Subscription means the Subscription plan you have chosen through our Platform, which you use to access certain features and benefits.
Subscription Features means the features and limitations of your chosen Subscription, as set out in the Order Form.
Subscription Fees means the fees you pay to us to access your chosen Subscription, as set out in the Order Form.
Subscription Period means the duration of your Subscription, as set out in the Order Form.
Term has the meaning given to it in the Order Form.
Your Data means the information, materials, logos, documents, qualifications and other intellectual property or data supplied by you and your Authorised Users when receiving our Services or stored by or generated by your use of our Services, including any Personal Information collected, used, disclosed, stored or otherwise handled in connection with our Services. Your Data does not include any data or information that is generated as a result of your usage of our Services that is a back-end or internal output or an output otherwise generally not available to users of our Services.