Terms of use

the legal stuff

 

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TERMS OF SERVICE
(“Terms”)

1. APPLICATION OF TERMS

1.1. These Terms apply to all services that we provide to you. By accessing and using the Website, or by instructing us to provide services to you:

a) You agree to these Terms; and

b) Where your access, use or instructions is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in
fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound
by these Terms.

1.2. If you do not agree to these Terms, you are not authorised to access and use the Website, or to instruct us to provide services, and you must
immediately stop doing so.

1.3. Where these Terms conflict with any other agreement or document relating to the Services, these Terms shall take precedence unless
specifically overridden by any document authorised by us.

1.4. You agree that to the extent that the Services are purchased by you for the purpose of your business or undertaking, the provisions of the Consumer
Guarantees Act 1993 and Sections 9, 12A and 13 of the Fair trading Act 1986 do not apply.

2. CHANGES

2.1 We may change these Terms at any time by updating them on the Website. Unless stated otherwise, any change takes effect immediately. You are
responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Website, you agree to be bound by the
changed Terms.

2.2 We may change, suspend, discontinue, or restrict access to, the Website without notice or liability.

2.3 These Terms were last updated on 1st June 2017.

3. DEFINITIONS

In these Terms:

including
and similar words do not imply any limit;

Loss
includes loss of profits, savings, revenue or data, and any other claim,
damage, loss, liability and cost, including legal costs on a solicitor and
own client basis;

Personal information
means information about an identifiable, living person;

Services
means services described in a Scope of Services provided to you by us;

Terms
means these terms and conditions titled Website Terms of Use;

Underlying System
means any network, system, software, data or material that underlies or is
connected to the Website;

User ID
means a unique name and/or password allocated to you to allow you to access
certain parts of the Website;

‘We’, ‘us’ or ‘our’
means Hooked on Marketing Limited;

‘Website’ 
means www.hookedonmarketing.com; and

‘You’
means you or, if clause 1.1b applies, both you and the other person on
whose behalf you are acting.

4. SERVICES

4.1. Where you ask us to provide Services to you, we will prepare a Scope of Services which sets out the proposed Services we will provide to you, together with an estimate of cost or the mechanism by which we will calculate the cost of the Services.

4.2. You agree to provide us with information and any resources necessary in a timely manner to enable us to prepare the Scope of Services and to implement the Services once accepted.

4.3. If you do not provide us with all the information and resources necessary to provide an accurate Scope of Services, the cost of the Scope of Services may change.

4.4. We will use our reasonable endeavours to deliver the Services to you in accordance with the Scope of Services.

4.5. When the Scope of Services is agreed and signed or accepted online by you it shall be deemed to be a complete statement of all of your requirements as at the date of signing or online acceptance. If your requirements should change following the date of signing or online
acceptance of the Scope of Services, we will then follow the process outlined in clause 5.

4.6. You agree that the provision of any Additional Services will also be subject to these Terms.

5. CHANGES TO SERVICES

5.1. We acknowledge that the Scope of Services may evolve as the project progresses. If we need to vary the Scope of Services as a consequence of changes which we agree with you as the project evolves, we will advise you that we need to vary the price for the Services. Where such variation is not more than a 10% increase and a fixed price, you are deemed to accept the new price without further acknowledgement. Where an increase of more than 10% is required, we will get your agreement in writing to such increase.

6. YOUR OBLIGATIONS

6.1. You must provide true, current and complete information in your dealings with us (including when setting up an account), and must promptly update that information as required so that the information remains true, current and complete.

6.2 If you are given a User ID, you must keep your User ID secure and:

a) Not permit any other person to use your User ID, including not disclosing
or providing it to any other person; and

b) Immediately notify us if you become aware of any unauthorised use or disclosure of your User ID, by contacting us here.

6.3. You must:

a) Not act in a way, or use or introduce anything (including any virus, worm, Trojan horse, timebomb, keystroke logger, spyware or other similar feature) that in any way compromises, or may compromise, the Website or any Underlying System, or otherwise attempt to damage or interfere with the Website or any Underlying System; and

b) Unless with our agreement, access the Website via standard web browsers only and not by any other method. Other methods include scraping, deep-linking, harvesting, data mining, use of a robot or spider, automation, or any similar data gathering, extraction or monitoring method.

6.4. You confirm that all data, images, video, presentations, files, documents, animations, software and other information or content you supply to us are:

a) Complete and accurate and not likely to mislead or deceive or cause damage to the reputation of any person or company; and

b) Or not cause us, in the course of providing services or otherwise fulfilling our obligations to you to infringe upon any person’s intellectual property; and

c) Are not offensive, harmful or objectionable or otherwise likely to breach any relevant legislation.

6.5. It is also your responsibility to observe and comply with all relevant legislation and regulations including, but not limited to, any applicable taxation regulations and accounting principles when using any of our Services.

6.6. Where you have requested us to access content and/or data from your website, any account you hold with any application and provider (but without limitation) a Google account, a Microsoft account, Youtube account, Facebook account, Linkedin account, Apple account:

a) You have given us all the relevant details and rights to access the relevant account and information contained within it and you warrant and undertake that you are the legal owner of your existing information as provided and relevant content and data including all intellectual property rights in relation to the content and data;

b) You have full and unfettered rights to deal with your existing information, content and data;

c) You authorise and empower us including our employees and contractors to access such information, content and data in relation to the provision of the Services.

6.7. You must obtain our written permission to establish a link to our Website. If you wish to do so, email your request to us by contacting us here.

6.8. You indemnify us against all Loss we suffer or incur as a direct or indirect result of your failure to comply with these Terms, including any failure of a person who accesses and uses our Website by using your User ID.

7. INTELLECTUAL PROPERTY

We acknowledge that you own the intellectual property in materials and content which you provide to us in connection with the Services we provide. You acknowledge that we need to be able to use our code, website interfaces, layouts and templates for other clients and therefore we and our suppliers own all intellectual property in any website we create or
adopt for you and all new intellectual property developed or created by us, our agents, employees and contractors in connection with the services we provide to you including, but not limited to, elements (in source and object code) which form part of the generic functionality of the website or elements (in source and object code) which implement visual features or the layouts of the website.

7.1. You confirm that all data, images, video, presentations, files, documents, animations, software and other information or content you supply to us or place on your Website (“Your Materials”):

a) Are complete and accurate and not likely to mislead or deceive or cause damage to the reputation of any person or company; and

b) Will not cause us, in the course of providing the Services or otherwise fulfilling our obligations under the Scope of Services, to infringe upon any person’s Intellectual Property including, but not limited to, any copyright or patent, registered design, or trademark and you agree to indemnify us against any action taken by a third party against us in respect of any such infringement; and

c) Are not offensive, harmful, upsetting, unlawful, or otherwise objectionable.

7.2. We need to use our code, website interfaces, layouts and templates for more than one client therefore, except for any intellectual property in your content, we (and our licensors) own all proprietary and intellectual property rights in the Website (including all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and
look and feel), and the Underlying Systems.

7.3. This clause applies where you have requested and require us to access and/or extract some or all of the content and/or data from your existing information assets including, but not limited to, your website, Google account, Microsoft account, YouTube account, Facebook account, LinkedIn account, Apple account, or any other database or account and to incorporate such content and/or data into any new website, online account, or database. For the purpose of carrying out the tasks described in the foregoing, you have given (or will give us) the relevant details and access rights to access your information assets. By giving us the relevant details and access rights to your existing information assets you warrant and undertake that:

a) You are the legal owner of your existing information assets and their contents and data, including all Intellectual Property Rights in or relating to the contents and data;

b) You have full and unfettered rights to deal with your existing information assets and their contents and data;

c) You unequivocally authorise and empower us (including our employees and contractors) to access your existing information assets:

i. to use, edit, transfer and/or upload, in accordance with your instructions, all or part of the contents and/or data of your existing information assets to your website, online account or database that we are building, redesigning or setting up for you; and

ii. to use, extract and/or copy, in accordance with your instructions, all or part of the contents or data of your existing information assets including, without limitation, your product and service information, your company overview, your customer database, your customer orders, and your analytics and performance metrics.

7.4. Provided you meet your payment obligations for the Services, you are granted a personal, non-exclusive, non-transferable license to our IP for the term of and in the manner anticipated in the Scope of Services. We warrant that we have the right to grant you a licence to use the Services in the manner anticipated in the Scope of Services.

7.5. In the course of providing the Services to you, we may implement various measurement, tracking and optimisation tools and methodologies to assist us to collect, measure, track, analyse, assess, report on, or optimise, your website (whether created by us or others), any social networking services utilised by you including (without limitation) Facebook, Linkedin and Twitter, and any other online marketing or e-business initiatives that may be in place from time to time. The data generated including (without limitation) the analyses, assessments and reports are our Intellectual Property and our Confidential Information and
will be owned by us but we will not share that data with any third party.

8. PRICING STRUCTURES AND PAYMENT TERMS

8.1. All subscription prices are plus GST (if in NZ) and other taxes payable by you.

8.2. We have the following pricing structures:

a) Fixed Price: Where a fixed price is given, the service, package or product will be charged based on a fixed predetermined amount as detailed in the Scope of Services (“Fixed Price”).

b) Time and Materials: Where an Estimated Budget is given in the Scope of Services or has been varied by virtue of clause 5, the Estimated Budget (whether original or as varied) is just an estimate and is dependent on the resources utilised and the time expended by us. You will be charged for all the actual hours of work performed at our hourly rate, any direct expenses incurred, and the cost of any materials and any special equipment that may be required for the project (“Time and Materials”).

8.3. You agree to pay the Charges for Services as and when they fall due, time being strictly of the essence.

8.4. If you have applied to pay, and we have agreed that you may pay, for Services on a monthly basis, we will invoice you monthly as specified in the Scope of Services. You acknowledge and agree:

a) That such payment arrangement, whether or not the payments are in advance
or in arrears of work performed, is solely at your request and for your convenience to assist you with your budgeting, financial forecasting and cashflow;

b) That if you default on any payment due under the payment arrangement (time being strictly of the essence), then, the whole amount or so much of that amount remaining unpaid under such payment arrangement shall become immediately due and payable;

c) That you will pay the deposit specified in the Scope of Services on receiving our written acceptance of your order as set out in the Scope of Services (time being strictly of the essence);

d) That you will pay each month the monthly payment specified in the Scope of Services (time being strictly of the essence).

8.5. Unless otherwise specified above, you agree to pay all invoices within 14 days of the invoice date (time being strictly of the essence). You shall not be entitled to set off against, or deduct from the payment, any sumsowed or claimed to be owed to you by us nor to withhold payment of any invoice because part of that invoice is in dispute.

8.6 If you do not pay for Services on time we may, at our option do any or all of the following:

a) Suspend or restrict your use of the Services;

b) Terminate the relevant Scope of Services in accordance with clause 15;

c) Refer your account to our debt collection agency;

d) Charge you all collection costs incurred by us, and you agree to indemnify us from and against all costs and disbursements incurred by us in recovering the unpaid Charges (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, our debt collection agency costs, and bank dishonour fees);

e) Charge you default interest from the date when payment became due, until the actual date of payment of all amounts owing (including default interest), at a rate of two percent (2%) per calendar month (which shall at our sole discretion compound monthly at such a rate) after as well as before any judgment;

f) Set-off any amounts due from you against any moneys due from us or held in our account to your credit.

g) And, for the avoidance of doubt, if we have agreed to allow you to pay by instalments and you defaulted on the payment of an instalment when due, time being strictly of the essence, then, the whole of the amount then outstanding and remaining unpaid shall become immediately due and payable, without any demand or other formalities of any kind on our part, and we may exercise any and all of our rights as set out in (i) to (vi), inclusive,
above.

9. DISCLAIMERS

9.1 To the extent permitted by law, we and our licensors have no liability or responsibility to you or any other person for any Loss in connection with:

a) the Website being unavailable (in whole or in part) or performing slowly;

b) Any error in, or omission from, any information made available through the Website;

c) Any exposure to viruses or other forms of interference which may damage your computer system or expose you to fraud when you access or use the Website. To avoid doubt, you are responsible for ensuring the process by which you access and use the Website protects you from this; and

d) Any site linked from the Website. Any link on the Website to other sites does not imply any endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators.

9.2. We make no representation or warranty that the Website is appropriate or available for use in all countries or that the content satisfies the laws of all countries. You are responsible for ensuring that your access to and use of the Website is not illegal or prohibited, and for your own compliance with applicable local laws.

9.3. We make no representation that any work we undertake for you will benefit you financially or improve sales.

9.4. From time to time we will provide information to you free of charge through the Blog on the Website. Information on the Blog is our opinion only and we make no representation that any recommended tactics will work for your particular business.

10. LIABILITY

10.1. To the maximum extent permitted by law:

a) You access and use the Website at your own risk; and

b) We are not liable or responsible to you or any other person for any Loss under or in connection with these Terms, the Website, or your access and use of (or inability to access or use) the Website. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or
otherwise.

10.2. The limitations and exclusions of liability in this clause

10 shall apply however liability arises, whether in contract, tort (including negligence), breach of statutory duty or otherwise.

10.3. If you are not satisfied with the Services, your sole and exclusive remedy is to terminate the Scope of Services in accordance with clause 15.

10.4 To the extent our liability cannot be excluded but can be limited, our liability is limited to the amount paid by you in relation to the Services.

11. SEARCH ENGINE OPTIMISATION

11.1. Search Engine Optimisation (“SEO”) is a process of applying various techniques to improve the ranking (or visibility) of a website or web page in a search engine’s unpaid, organic results. Different search engines use different formulas for ranking a website or a web page and, from time to time, a search engine may change the formulas it uses for that purpose. We have no control whatsoever over the search engine or the changes a search
engine may make to its formulas. When a search engine changes its formulas for ranking websites or web pages, your rankings with that particular search engine may be positively or negatively impacted. You acknowledge and agree that where you have purchased SEO services from us or from a Third Party Provider (whether or not recommended by us) we will not be held responsible for any changes (adverse or otherwise whatsoever) in your rankings as a result of changes made by a search engine to its formulas for ranking a website or a webpage.

12. RETARGETING

12.1 You acknowledge that in using retargeting strategies you have certain obligations to users and providers of retargeting platforms. You accept responsibility for ensuring you have a privacy policy in place which ensures that you comply with the requirements of the platform providers and privacy obligations to your customers.

13. PRIVACY POLICY

13.1 You authorise us or our agents to:

a) Access, collect, retain and use any information about you;

i. (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing your creditworthiness;

ii. for the purpose of meeting our obligations and enforcing our rights under these Terms and the Scope of Services; or

iii. for the purpose of marketing products and services to you.

b) Disclose information about you, whether collected by us from you directly or obtained by us from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by you.

c) With the exception of any Confidential Information, exchange the information we hold about you with our contractors, agents, representatives and Carriers for the purpose of meeting our obligations under these Terms and the Scope of Services.

d) Monitor and record communications you make to us or we make to you in order to improve the service we provide to you and to assist us with meeting our obligations to you.

13.2. When you provide personal information to us, we will comply with the New Zealand Privacy Act 1993.

13.3. The personal information you provide to us (including any information provided if you register for an account) is collected and may be used for communicating with you, statistical analysis, the marketing by us of products and services to you, credit checks (if necessary), and research and development.

13.4. In order to better provide and/or improve the Services, we may analyse website data and/or the various online marketing, social networking or e-business initiatives. Data collected for the analyses will be aggregated data and will be used for our statistical or research purposes. We may retain and use that data but will not share that data with any third party unless:

a) We have your consent; or

b) Disclosure is required by law; or

c) We need to provide the data to a third party to carry out tasks on our behalf (for example, data storage) with strict restrictions that prevent the data from being used or shared except as directed by us, and subject to strict confidentiality and security measures; or

d) The third party is our parent company or its subsidiaries, or their respective successors in title.

13.5. Generally, we do not disclose personal information to third parties for them to use for their own purposes. However, some of the circumstances in which we may do this are:

a) To service providers and other persons working with us to make the Website available or improve or develop its functionality (e.g. we may use a third party supplier to host the Website);

b) In relation to the proposed purchase or acquisition of our business or assets; or

c) Where required by applicable law or any court, or in response to a legitimate request by a law enforcement agency.

13.6. Any personal information you provide to us may be stored on the secure servers of our trusted service providers, which may be located outside New Zealand. This may involve the transfer of your personal information to countries which have less legal protection for personal information than New Zealand.

13.7. You have the right to request access to and correction of any of the personal information we hold about you. If you would like to exercise these rights, please contact us here.

14. CONFIDENTIAL INFORMATION

14.1. Each party will keep all information about the Services, the Website and other information that is confidential to the other party (”Confidential Information”) confidential and will not disclose this information to a third party without the consent of the other party. Each
party shall ensure that its employees, subcontractors, professional advisors and agents abide by these obligations of confidentiality.

14.2. Unless we agree otherwise in writing, we will each use any Confidential Information belonging to the other party only for the purposes of fulfilling our obligations to each other under the Scope of Services and as permitted in these Terms.

14.3. Confidential Information does not include information clearly required to be disclosed by law; or is generally known and available without a party having breached its obligations under this clause 14; or is, or has been, independently and lawfully acquired or developed without the benefit or use of the other party’s Confidential Information.

15. SUSPENSION AND TERMINATION

15.1. Without prejudice to any other right or remedy available to us, if we consider that you have breached these Terms or we otherwise consider it appropriate, we may immediately, and without notice, suspend or terminate our engagement with you.

15.2. Subject at all times to any minimum term associated with any Scope of Services, you may otherwise terminate the Services at any time after the expiry of such minimum term, by giving us one (1) month’s written notice of termination.

15.3. We may terminate the Services at any time, by giving you one (1) month’s written notice of termination.

15.4. Upon termination by you or by us (as applicable) of the Services pursuant to clauses Error! Reference source not found. or Error! Reference source not found.:

a) Any amounts owing by you to us for Services must be paid immediately; and

b) Subject to clause 15.6 and without derogating from the foregoing provision in clause 15.4a above, we will be regarded as wholly discharged from any further obligations or performance for Services with effect from and on the date of termination.

15.5. We may terminate the Scope of Services without cause by notice in writing to you at any time. If we terminate under this clause we will promptly repay to you all of the Charges you have paid to us under that Scope of Services up to the date of termination and subject to clause 15.6, we shall be wholly discharged from any further obligations under the Scope of Services or these Terms.

15.6. Termination or cancellation of a Scope of Services shall not relieve either party from any right, liability, or claim that has accrued on or before the date of termination or cancellation.

16. GENERAL

16.1. If we need to contact you, we may do so by email or in writing by post. You agree that this satisfies all legal requirements in relation to written communications.

16.2. These Terms, and any dispute relating to these Terms or the Website, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms or the Website.

16.3. For us to waive a right under these Terms, the waiver must be in writing.

16.4. Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 6.8, 7, 9, 10 and 14 continue in force following termination of a Scope of Services.

16.5. If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must
be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.

16.6. These Terms set out everything agreed by the parties relating to your use of the Website and supersede and cancel anything discussed, exchanged or agreed prior to you agreeing to these Terms. The parties have not relied on any representation, warranty or agreement relating to the Website that is not expressly set out in the Terms, and no such representation, warranty or agreement has any effect from the date you agreed to these Terms.

Please contact us if you have any questions or concerns regarding these terms.