General Terms & Conditions
1. APPOINTMENT AND TERM
1.1 Appointment: You appoint The Web Stars to provide the Services and The Web Stars agree to provide such Services during the Term in accordance with this Agreement.
1.2 Term of Agreement: This Agreement commences on the Start Date and will continue until terminated in accordance with this Agreement (Term), The minimum term is 6 months.
1.3 Term for Services: The Web Stars will provide each Service for the term set out in the Key Terms (Service Term). You may cancel a Service prior to the end of the applicable Service Term on the provision to The Web Stars of not less than 30 days prior written notice (Cancellation Period). If you do not notify us within the Cancellation Period, the Service Term will be extended for a further equivalent period of time.
1.4 Early Termination Fee: If the customer cancels during the “cooling-off period” there will be no penalties but if the customer cancels outside the “cooling-off period” the Early Termination Fee is 60% of the remaining contract.
2.1 The Web Stars In addition to any other obligations set out in this Agreement; The Web Stars will provide the Services to you:
- (a) in accordance with the Specification in all material respects, the terms of this Agreement and all applicable laws;
- (b) exercising reasonable care, skill and diligence; and
- (c) using suitably skilled, experienced and qualified staff.
2.2 Customer: You will:
- (a) provide The Web Stars with all necessary information and materials and feedback on the Services and Deliverables in a timely manner that The Web Stars may reasonably require in order to provide the Services, ensuring such information and materials and feedback are complete, accurate and up to date in all material respects;
- (b) co-operate with The Web Stars in all matters relating to the provision of the Services;
- (c) obtain and maintain all necessary licences, permissions and consents that may be required for the provision of the Services before the Start Date and during the Term including in accordance with clause 5;
- (d) notify The Web Stars of any change made by you or any third party to any website in relation to which we are providing the Services as any such change may impact the performance of the Services, in particular the tracking of any advertising campaign;
- (e) only use the Services and Deliverables or any part of them for the express purposes for which they have been provided by The Web Stars and you will not access and use the Services and Deliverables for any purpose that is illegal or prohibited by these Terms; and
- (f) comply with all applicable laws and clause 2.4(a) at all times in relation to your use of the Services.
2.3 Third Party Platforms: Where shown in the relevant Service description, certain Services may be delivered through or are dependent upon the use of certain Third Party Platforms or systems (Third Party Platforms). You agree that:
- (a) you will provide The Web Stars (and its employees, agents, consultants and subcontractors as applicable), with access to your accounts on any Third Party Platforms as reasonably requested and required by us so we can provide the Services to you;
- (b) you will ensure, and be solely responsible for ensuring, that any previously paid services that you have established in your name in relation to the Services that have not been set up or that are not managed by The Web Stars have been closed or de-activated before The Web Stars commences provision of the Services;
- (c) your use of those Services is subject to the terms and conditions of the relevant Third Party Platform referred to in the Services Description or as otherwise notified to you by The Web Stars
- (d) where The Web Stars has established an account on a Third Party Platform in relation to the provision of Services to you, such account(s) will remain the property of The Web Stars and will not be transferrable to you on the termination or expiry of the Services or this Agreement;
- (e) The Web Stars does not control the Third Party Platforms and will not be liable for any system errors (including application, software, hardware, downtime, loss of access or information or other damage except to the extent caused directly by The Web Stars negligence or wilful misconduct), the quality or performance of the Third Party Platform or its services or any acts or omissions of the operator of the Third Party Platform;
- (f) the Fees payable may include certain charges or costs relating to use of the Third Party Platform or its services as set out in the Services Description at Schedule 1, or otherwise as notified to you by The Web Stars. You are responsible for any other charges or costs related to use of Third Party Platforms in relation to the provision of the Services, for which you will promptly reimburse The Web Stars on receipt of a valid invoice where those costs are initially incurred by The Web Stars and
- (g) you will not use, or misuse, any Third Party Platform or any Service in any way that could impair the functionality of any Third Party Platform, the delivery of the Service, or other systems or networks used to host or make available the Service or that could impair the ability of any other user to access or use the Third Party Platform or any Service; and
- (h) you will not attempt to view, access or copy any deliverables, materials or data other than that which you are authorised to access.
2.4 Customer Default: Subject to clause 7.3 and without prejudice to any other right or remedy available to The Web Stars, if a Customer’s act, omission or failure to perform any of its relevant obligations (Customer Default) prevents, delays or otherwise interferes with The Web Stars performance of any of its obligations under the Agreement, then:
- (a) The Web Stars will be entitled to suspend its performance of the Services until you remedy the Customer Default, during which time The Web Stars will continue to invoice you for the provision of the Services subject to the Term being extended by the length of time the Services were suspended;
- (b) The Web Stars will be entitled to rely on a Customer Default to relieve it of its obligations under this Agreement in each case to the extent a Customer Default prevents or delays The Web Stars’s performance of any such obligations;
- (c) The Web Stars will not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from The Web Stars failure or delay to perform any of its obligations to the extent a Customer Default prevents or delays The Web Stars performance of any of such obligations; and
- (d) you will reimburse The Web Stars on written demand for any costs or losses sustained or incurred by The Web Stars arising directly or indirectly from the Customer Default.
3. FEES AND INVOICING AND CONTRACTS
3.1 Fee payment: In consideration of the provision of the Services by The Web Stars you will pay The Web Stars the fees by credit card as indicated in the Key Terms or by any other method the parties may agree from time to time and in accordance with this Agreement the minimum contract length is 6 months
3.2 The Fees for the Services are calculated on a monthly basis and exclude Goods and Services Tax unless otherwise stated.
3.3 Invoicing: The Web Stars will provide you with valid tax invoices for the Fees on a monthly basis in advance or as otherwise agreed by the parties in writing.
3.4 Subject to clause 3.5 below, you will pay in full any invoice received from The Web Stars on or before the specified due date on the invoice or in accordance with any other arrangements previously agreed in writing between the parties (Due Date).
3.5 If you have a genuine dispute with an invoice or any part of it, you will notify The Web Stars of the reasons for such dispute within 7 Business Days of receipt of the invoice. You agree to pay the part of the invoice that is not in dispute and any further dispute will be addressed pursuant to clause 10.
3.6 Overdue amounts: Subject to clause 3.5, if you fail to make full payment of any invoice by the Due Date, The Web Stars may, at its sole discretion:
- (a) charge a 10% late payment fee on all overdue amounts (excluding interest under this clause 3.6(a));
- (b) charge an administrative fee to cover any administrative costs incurred by The Web Stars in respect of your failure to make full payment by the Due Date;
- (c) cancel or suspend access to the Services, Customer accounts and/or any phone number connected to a Customer’s account;
- (d) terminate this Agreement in accordance with clause 6;
- (e) cancel any rebate, discount or allowance due or payable by The Web Stars as at the date the invoice becomes overdue;
- (f) institute any recovery process as The Web Stars thinks fit at your cost.
4.1 All warranties, terms, guarantees and conditions that are not expressly set out in this Agreement are excluded to the extent permitted by law.
4.2 You agree and represent that you are acquiring the Services for the purposes of trade. The parties agree that:
- (a) to the maximum extent permissible by law, the New Zealand Consumer Guarantees Act 1993 does not apply to the supply of the Services or the Agreement; and
- (b) it is fair and reasonable that the parties are bound by this Agreement, including this clause.
5. INTELLECTUAL PROPERTY
5.1 IP owned by The Web Stars: All pre-existing Intellectual Property Rights in or used by The Web Stars in delivering the Services, and any Intellectual Property Rights of general application developed or created in delivering the Services (in each case other than Intellectual Property Rights in any materials provided by you) are and shall remain the exclusive property of The Web Stars or its licensors, unless otherwise agreed by the parties in writing.
5.2 IP owned by you: As between the parties to this Agreement, all Intellectual Property Rights in the following will remain your property:
- (a) any content you supply to us (including without limitation copy, images and video) in connection with the Services; and
- (b) any Deliverables or content created by The Web Stars specifically for you as part of the Services (together the Customer IP).
5.3 Licence of content: You grant to The Web Stars, or shall procure the direct grant to The Web Stars of, a fully paid-up, worldwide, non-exclusive, royalty-free licence to use, copy, adapt, modify and make available any Deliverables that The Web Stars produces for you, and any other materials or content that you provide to The Web Starsl in relation to the provision of the Services (including any content supplied by you including text, images and video) for the purpose of enabling The Web Stars to provide the Services and/or the Deliverables and in relation to the operation of its business.
5.4 Our use of Customer IP: You represent and warrant that you hold all rights necessary to provide the Customer IP to The Web Stars for use by The Web Stars in performing the Services and that such use will not infringe the rights of any third party. You indemnify and hold The Web Stars harmless from and against any claim, cost, proceeding or liability brought against or incurred by The Web Stars as a result of any claim by a third party of infringement of their Intellectual Property Rights relating to The Web Stars’s use of any Customer IP as part of the provision of the Services.
6.1 Mutual termination rights: Without affecting any other right or remedy available to it, either party may terminate this Agreement at any time with immediate effect upon written notice to the other party, if that other party:
- a) commits a material breach of any term of this Agreement and, where the breach is remediable, fails to remedy the breach within 10 Business Days of being notified in writing to do so;
- b) has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of external administration, or ceases to continue business for any reason.
6.2 The Web Stars termination rights: Without affecting any other right or remedy available to it, The Web Stars may:
- (a) terminate this Agreement at any time without cause by giving you not less than 30 days’ written notice;
- (b) terminate this Agreement with immediate effect on written notice to you if:
- (i) you fail to pay any amount due under this Agreement to The Web Stars by the Due Date; or
- (ii) you undergo a change of control.
6.3 Suspension of Services: Without affecting any other right or remedy available to it, The Web Starsmay suspend the supply of Services under this Agreement or any other contract between you and The Web Stars if:
- (a) you fail to pay any amount due under this Agreement by the Due Date;
- (b) you become subject to any of the events listed in clauses 6.1(b) or The Web Stars reasonably believes you are about to become subject to any of them.
6.4 Consequences of termination: On termination of this Agreement:
- (a) you shall immediately pay to The Web Stars all of The Web Stars outstanding unpaid invoices and interest. Where any Services have been supplied but an invoice has not yet been issued, The Web Stars shall issue an invoice, which shall be payable by you immediately on receipt; a
- (b) Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
6.5 Clauses with continuing effect: Termination or expiry of this agreement will not affect any provisions of this agreement which are expressed, or by implication are intended, to survive termination or expiry of this Agreement.
7.1 Maximum liability: The total liability of The Web Stars to you under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, will not exceed the Fees paid and/or payable by you to The Web Stars in accordance with the Agreement in any 12 month period commencing from the Start Date or any anniversary of the Start Date.
7.2 Excluded loss: Except for your liability for payment of the Fees to The Web Stars, neither party is liable to the other under or in connection with the Agreement for any loss of profits, data, anticipated savings, sales or business, revenue, and/or goodwill of any kind or any indirect, consequential, incidental or special loss or damage.
7.3 No liability for the other’s failure: Neither party will be responsible, liable, or held to be in breach of this Agreement, for any failure to perform its obligations under the Agreement or otherwise, to the extent the failure is directly caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.
8.1 Non-disclosure: Each party undertakes that it shall not at any time during the Agreement (and for a period of 1 year after expiry or termination of the Agreement), disclose to any person any Confidential Information concerning the business affairs, customers, clients or suppliers of the other party, except as permitted by clause 8.2 below.
8.2 Permitted Disclosure: A party may disclose the other party’s Confidential Information:
- (a) for the purpose of performing the Agreement or exercising its rights under the Agreement;
- (b) if required by law (including under the rules of any stock exchange); and
- (c) if it is publicly available through no fault of the recipient of the Confidential Information or its personnel.
8.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Agreement.