TERMS AND CONDITIONS
Please read the following Website General Terms and Conditions (“T&C”) carefully as the provisions contained herein govern your access and use of the Website.
In addition to these terms, the access and use of our services are subject to the MilkyWeb Terms & Conditions of Service www.MilkyWeb.co.nz (“TCS”), the terms of which are incorporated into the T&C by this reference.
GENERAL
1.1 The Website is owned and operated by MilkyWeb and/or its associates, related parties, successors and assigns (collectively referred to as “Provider”, “us”, “we” or “our”).
1.2 The terms and conditions set below apply to:
(a) any persons viewing or otherwise accessing the Website (“Visitor”); and
(b) any persons supplying in any way personal information (including name and email address) to the Provider through or in connection with the Website, whether by way of the Provider’s contact form, by email or otherwise (“Registered User”). Both categories of users are collectively referred to as “Users”, “you” or “your” in this T&C.
1.3 By becoming a User, you hereby acknowledge and agree to be bound by the T&C. This version represents the most current version of the T&C.
ELIGIBILITY
2.1 In consideration of your becoming a User, you represent and warrant that:
(a) you are 18 years of age or older;
(b) you have the capacity to form a binding contract;
(c ) you are not a person barred from accessing or using the Website under the governing laws of the T&C; and;
(d) your access or use of the Website does not violate any applicable law or regulation.
DESCRIPTION OF THE WEBSITE
3.1 “Website Content” means including, without limitation, information on:
(a) products and services;
(b) lead and sales tracking solutions;
(c ) benefits of products and services;
(d) FAQs; and
(e) contact details.
3.2 The Website Content may further include other Provider communications such as service announcements and administrative messages communicated to Registered Users and are considered part of the terms of registration of the Website.
3.3 Unless explicitly stated otherwise, any new Website Content, features or applications offered or made available from time to time by the Provider through or in connection with the Website shall be subject to the T&C.
WEBSITE ACCESS AND USE
4.1In accessing and using the Website or any Website Content thereof, you expressly acknowledge and agree that:
(a) the Website is offered, supplied and provided on an “as-is” and “as available” basis, and the Provider assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any User communications or personalised settings;
(b) you understand that the Website may include software embodied therein now or in the future (“Software”) as well as security components that permit digital materials to be protected, and that your access and use of the Website are subject to Software usage rules set by the Provider and/or owners of proprietary Software. The Provider makes no warranty that any errors in the Software will be corrected;
(c ) you are responsible for obtaining access to the Website and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees and in addition, you must provide and are responsible for all equipment necessary to access the Website;
(d) you may not:
(i) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or data transmitted through the Website;
(ii) disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other Users are able to type, or otherwise act in a manner that negatively affects other Users’ ability to engage in real time exchanges;
(iii) interfere with or disrupt the Website or servers or networks connected to the Website or disobey any requirements, procedures, policies or regulations of networks connected thereof;
(iv) take any action that places an unusually large load on the infrastructure of the Website, or bandwidth connecting to the Website, or take any action that includes the use of any data accumulation, tool, robot or spider to compile, disseminate, extract, process, monitor or copy any web pages;
(v) intentionally or unintentionally violate any applicable local, state, national or international law; and
(vi) attempt to override or circumvent any of the usage rules embedded into the Software or those provided herein.
(e) subject to Clause 9, any material downloaded or otherwise obtained through the Website is done at your own discretion and risk. You will solely be responsible for any damage to your computer system or loss of data that results from the download of the same.
WEBSITE CONTENT
5.1 In viewing the Website Content displayed on the Website, you expressly acknowledge and agree that:
(a) all Website Content posted on the Website or communicated to you from time to time by the Provider are provided for guidance or as reference only. Accordingly, NO advice relating to the subject matter of such Website Content is understood to be given to you by the Provider;
(b) under no circumstances will the Provider be liable in any way for any Website Content, including, but not limited to, for any errors or omissions in any Website Content, or for any loss or damage of any kind incurred as a result of the use of any Website Content posted, emailed, transmitted or otherwise made available through or in connection with the Website. You are not entitled to rely and/or act upon such Website Content and/or use them as a basis for any cause of action in law or otherwise;
(c ) the Website Content may be subject to change without notice and does not take into account your objectives, personal or commercial situation, requirements or needs, or any statutory obligations or requirements which may be required to be observed in your state or jurisdiction;
(d) to the fullest extent of the law, the Provider expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to any warranty of merchantability, fitness for a particular purpose or correspondence to particular descriptions in respect of any Website Content displayed on the Website; and
(e) no advice or information, whether oral or written, obtained by you from the Provider or through or from the Website shall create any warranty not expressly stated in the T&C.
DATA AND CONTENT INPUT
6.1 For the purposes of this Clause, “User Content” means any and all:
(a) any personal information provided by you in a contact form or by way of email (collectively “Registration Data”); and
(b) any other data or materials you upload, post, email, transmit or otherwise make available through or in connection with the Website.
6.2 You expressly acknowledge, agree and warrant that:
(a) you are solely and entirely responsible for your User Content;
(b) all Registration Data which is submitted by you to the Provider through or in connection with the Website is true, accurate and current, and is complete in all respects;
(c ) you shall update any changes to your Registration Data as soon as practicable; and
(d) you shall not upload, post, email, transmit or otherwise make available through or in connection with the Website any User Content that:
(i) is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, pornographic, obscene, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
(ii) you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
(iii) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(iv) comprises unsolicited or unauthorised advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas that are designated for such purpose;
(v) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
(vi) purports to impersonate any other person or entity, including, but not limited to, any other User, the Provider’s official, employee, consultant, guide, host or any other representative, or falsely state or otherwise misrepresent your affiliation with any person or entity.
6.3 You also expressly acknowledge, agree and warrant that the Provider:
(a) shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any User Content that is made available by you through or in connection with the Website; and
(b) may access, preserve, and disclose all User Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to:
(i) comply with legal process;
(ii) enforce the T&C;
(iii) respond to your requests for customer service; and
(iv) protect the rights, property, or personal safety of the Website, other Users and/or the public.
6.4 You understand that the technical processing and transmission of all User Content submitted or posted by you may involve:
(a) transmissions over various networks; and
(b) changes to conform and adapt to technical requirements of connecting networks or devices.
6.5 The Provider does not claim ownership of any User Content you submit or upload through or in connection with the Website.
EXCLUSION OF LIABILITY
7.1 You expressly understand and agree that the Provider, its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for loss or profits, goodwill, use, data or other intangible losses, even if the Provider has been advised of the possibility of such damages, resulting from:
(a) the accessing of, or the inability to access, the Website, the use of, or the inability to use, or the reliance, or the inability to rely, on the Website Content;
(b) unauthorised access to or alteration of any of your transmissions or data, including any User Content;
(c ) any other matter relating to the Website or Website Content displayed on the Website or communicated to you.
INDEMNITY
8.1 You agree to fully indemnify, defend and hold the Provider, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any and all claims or demands, liabilities, damages, losses, costs and expenses, including reasonable attorneys’ fees, made by any third party due to or arising out of your:
(a) access and use of the Website or any Website Contents thereof;
(b) connection to the Website;
(c ) violation of the T&C; or
(d) violation of any rights of another.
PROPRIETARY RIGHTS
9.1 All copyright on the Website or embodied in any Website Content displayed on the Website is owned by the Provider or its proprietary holders, and you are required to abide by all copyright notices contained on the Website.
9.2 Except to the extent otherwise specifically authorised by the Provider and/or the proprietary holders:
(a) you may not copy, modify, translate, publicise, reproduce, exploit, broadcast, transmit, distribute, perform, display or sell any of, or any portion of, any or all Website Content of the Website, or create any derivative works thereof, and you may not use any of the Website Content in connection with any commercial endeavours, whether in whole or in part;
(b) you may only retrieve and display any Website Content on a computer screen, print individual pages on paper, photocopy and store such pages in electronic form on disc (but not on any server or other storage device connected to a network) solely for your personal use; and
(c ) you may not alter the text, graphics, images, audiovisual or any other materials contained on the Website or embodied in any Website Content.
9.3 Any unauthorised reproduction, publication, further distribution or public exhibition of the Website or all Website Content contained therein, in whole or in part, is strictly prohibited.
9.4 In addition, the Website domain name, the Provider’s name, logo, other names and logos of the Provider as may be created, produced or used from time to time (“Marks”) are trademarks or registered trademarks of the Provider and its affiliated companies. Without express and written prior permission, you agree not to display or use in any manner the Marks for any purpose whatsoever.
SPECIAL ADMONITION FOR INTERNATIONAL USE
10.1 The Website is provided for the benefit of, and is intended to be viewed by, Users within Australia only. If you are viewing the Website on a computer outside Australia, you expressly acknowledge, agree and warrant that:
(a) in choosing to access and use the Website outside Australia, you are solely responsible for complying with the laws applicable in your jurisdiction;
(b) the Provider shall not incur any liability to you whatsoever with respect to your access and use of the Website; and
(c ) you shall indemnify the Provider against any and all liability the Provider may have in relation to any third party for any reason whatsoever arising out of your use of the Website.
GENERAL PRACTICES REGARDING USE AND STORAGE
11.1 You expressly acknowledge and agree that:
(a) the Provider may establish general practices and limits concerning use of the Website, including without limitation the maximum number of days and months that any data submitted by you will be retained by the Website, the maximum amount of information that may be submitted by you and the maximum number of times and the maximum duration for which you may access any Website Content on the Website in a given period of time;
(b) the Provider has no responsibility or liability for the deletion or failure to store any descriptions, work, portfolio, profile, or other information or communication posted by you, or obtained or procured from or through the use of the Website; and
(c ) the Provider reserves the right to modify these general practices and limits from time to time.
MODIFICATIONS TO THE WEBSITE, WEBSITE CONTENT AND T&C
12.1 The Provider reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website or any part thereof, including the provision of any Website Content, with or without notice to you. You agree that the Provider shall not be liable to you or to any third party for any such modification, suspension or discontinuance of the Website or any part thereof.
12.2 The Provider reserves the further right to make any amendments to the T&C at any time in its sole and absolute discretion, with or without notice to you. The most current version of the T&C as posted on this page shall supersede all previous versions.
12.3 It is your responsibility to check regularly to determine whether a new version of the T&C has been uploaded. If you do not agree to any revisions pursuant to the upload of a new version of the T&C, then you must immediately stop using the Website.
12.4 You agree that the Provider shall not be liable to you or to any third party for any such modification, suspension or discontinuance of the Website, and/or amendments to the T&C. Your continued use of the Website after such modifications or amendments shall constitute an acceptance of your agreement to be bound by the T&C, as amended.
SUSPENSION AND TERMINATION
13.1 You agree that the Provider may, under certain circumstances and without prior notice, suspend or immediately terminate your access to the Website and remove any associated User Content, including any profiles, works, information or contact details thereof.
13.2 Cause for such suspension or termination shall include, but not be limited to:
(a) breaches or violations of the T&C, Privacy Policy and/or any other agreements entered into between you and the Provider;
(b) requests by law enforcement or other government agencies;
(c ) discontinuance of the Website (or any part thereof); and
(d) unexpected technical or security issues or problems.
13.3 You agree that all such suspensions or terminations shall be made at the Provider’s sole discretion and that the Provider shall not be liable to you or any third party for any such suspension or termination.
OFF SITE LINKS
14.1 In order to offer increased value to our Users, the Website may provide, or third parties may provide, links to other Websites or resources, which you may access at your sole discretion.
14.2 You understand and acknowledge the Provider has no control over such sites and resources. In this respect, you also acknowledge and agree that the Provider is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services or other materials on or available from such sites or resources.
14.3 You further acknowledge and agree that the Provider shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
EMAIL POLICY
15.1 We will not respond unless required to do so by law to any email sent to us which contains threatening, abusive, malicious, pornographic, obscene, defamatory or otherwise illegal or inappropriate material. We reserve the right to take such action as we in our sole discretion deem fit in respect of such material.
15.2 All Emails received will be taken to be submitted, where appropriate, for publication, free of charge. If you wish to negotiate a fee for the publication of your exclusive material you should email us at info@MilkyWeb.co.nz and state your name, address and, if applicable, a contact telephone number, in your Email. Your Email should clearly state that the material contained in the Email has been submitted for the purposes of negotiating a fee for the publication of that material. It must not be sent to any other email address or to a User or to any other third party.
15.3 We will not disclose any personal information under any circumstances of any staff, employee, contractor or worker of the Provider and/or the Provider’s associates. Where appropriate we will endeavour to respond to all Emails within 3 days of receipt, but we cannot and do not guarantee to respond to any Emails. All Emails will generally be stored for 6 months after which time they will automatically be deleted. Any Email sent to the incorrect destination is liable to be deleted immediately.
PRIVACY POLICY
16.1 The use of any personal information collected from you is subject to our Privacy Policy, which is incorporated into this T&C by reference.
NO THIRD PARTY BENEFICIARIES
17.1 You agree that, except as otherwise expressly provided in this T&C, there shall be no third party beneficiaries to this T&C, and that you may not assign your profile or registration to any other persons.
NOTICES
18.1 If you choose to provide us with a nominated email address, unless you expressly inform us otherwise, the Provider may communicate with you by providing you with notices regarding updates, changes or additions to the Website or Services offered through or in connection with the Website.
GOVERNING LAW
19.1 This T&C and any obligations arising out of or in relation to the T&C shall be governed by and construed in accordance with the laws of New Zealand.
JURISDICTION
20.1 You understand, agree and acknowledge that the courts of New Zealand are to have exclusive jurisdiction to settle any dispute (including claims for set-off and counterclaims and disputes relating to any non-contractual obligations) which may arise out of or in connection with the T&C and for such purposes irrevocably submit to the jurisdiction of the aforesaid courts.
ENTIRE AGREEMENT
21.1 The T&C constitute the entire agreement between you and the Provider and govern your access and use of, or purchase through or in connection with, the Website, superseding any prior agreements between you and the Provider.
21.2 You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services of the Provider, affiliated services, third-party content or third-party software.
WAIVER AND SEVERABILITY OF TERMS
22.1 The failure of the Provider to exercise or enforce any right or provision of the T&C shall not constitute a waiver of such right or provision.
22.2 If any provision of the T&C is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the T&C remain in full force and effect.
REFUND POLICY
23.1 Cancellation refund terms are strictly up to 7 days after the agreement has been made in which a cancellation may be made to be eligible for any refund. After 7 days any right to a refund is forfeited. If the client decides to cancel the service/product before the it has been completed, the client will not be eligible for a refund.
MilkyWeb Search Engine Marketing – General Terms & Conditions
INTERPRETATION
1.1 The following definitions and rules of interpretation apply to the Contract (“Conditions”).
Keywords: means the word(s) and/or phrases which the Customer wishes to purchase and which the Company agrees to use in the placement of paid Google AdWords Listing, subject to these Conditions.
Advertising Fee: means the fee payable for Google AdWords Listing as detailed on the front page of this Contract or verbal confirmation of contract.
Google AdWords Listing: means the paid display advertising placed on Google for the selected keywords linking to the Customer’s own web site.
Contract: means this contract between the Customer and the Company for the Company to provide the specified Google AdWords Listing on Google as set out on the front page of this document or verbal confirmation of contract and in these terms and conditions.
Company: means the supplier of the services under this Contract: “MilkyWeb ” means MilkyWeb (Company Number: 4118959) with its registered office located at 86G Bush Road, Albany, Auckland 0632 New Zealand; trading as ” MilkyWeb”
Contract Commencement Date: means the date that payment is made of the Start Up Fee and Advertising Fee for the first period of this Contract or the date Google AdWords Listing is placed on Google by the Company, which ever is the earlier.
Customer: means the person, firm or company named on the front page of this Contract or verbal confirmation of contract who purchases the Google AdWords Listing from the Company.
GST: means Goods and Services Tax pursuant to the Goods and Services Tax Act 1985 and its statutory Amendments.
Start Up Fee: means the sum specified on the front page of this Contract.
1.2 A reference to a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
APPLICATION OF CONDITIONS
2.1 These Conditions shall:
(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation, or specification or other document supplied by the Customer, or implied by law or course of dealing.
2.2 By proceeding with this Contract or making any payment to the Company under this Contract the Customer acknowledges that it has read, and accepts these Conditions.
2.3 Any quotation given prior to acceptance is valid for a period of 30 days from its date, provided that the Company has not previously withdrawn it.
DURATION
3.1 This Contract applies from the Commencement Date and shall continue until the expiry of the period specified on the front page of this Contract or verbal confirmation of contract or until terminated under these Conditions.
3.2 The Company shall not be required to undertake any work, or provide the Google AdWords Listing for any period until the Company has received, in cleared funds, the Start Up Fee and the first payment of the Advertising Fee as specified on the front page of this Contract or verbal confirmation of contract.
THE KEYWORDS
4.1 Subject to the provisions of this clause, the Company shall use the Keywords specified on the front page of this Contract.
4.2 The Customer acknowledges that the Keywords are generic and are not exclusive to either the Company or the Customer and that the Company does not provide any guarantee or warranty that placement of the Google AdWords Listing will be effective in promoting the Customer’s website or result in any increased internet traffic to the Customer’s website or any increase in sales of the Customer’s product or service.
4.3 The Company may, from time to time and without notice, change the Keywords in order to comply with any applicable industry codes, good practice or legal requirements.
4.4 The Keywords are subject to the Google review process and from time to time display of the Google AdWords Listing link may be suspended or interrupted pending Google verification that the advertisement and associated website content meet Google advertising policies.
4.5 The Company is not responsible for any interference or restriction in access to the Google AdWords Listing by any other third party.
4.6 If after Commencement the Customer requests a change to the Keywords, the Customer must do so in writing to the Company.
4.7 The Company may charge for its time spent in assessing and responding to a request for a change to the Keywords by the Customer whether the Customer proceeds with the change or not.
4.8 The Advertising Fee is set based on estimation by the Company of the number of daily clicks that will occur on the Google AdWords Listing and the Customer acknowledges that the Company will impose a daily click allowance on the Google AdWords Listing appearing on Google (www.google.co.nz). The Company shall be permitted, to cease and remove the Google AdWords Listing in any one day period (00.01 hours to 24.00 hours) if the daily click allowance has been, or in the reasonable opinion of the Company is likely to be, exceeded.
4.9 For clarity, a click means each time a viewer of Google selects the link on the displayed Google AdWords Listing and is directed to the Customer’s landing page, and each click results in a charge from Google to the Company. If the Customer wishes to have a higher daily click allowance for the Google AdWords Listing then it must request a change in writing and the Advertising Fee will be increased accordingly.
4.10 It is agreed that the Company shall have the right to immediately and without notice cease to provide the Keywords and remove the Google AdWords Listing appearing on Google (www.google.co.nz) if:
(a) The Customer fails to pay any amount due to the Company on or before the due dates; or
(b) This Contract expires or is terminated (howsoever arising) or;
(c ) Google NZ (www.google.co.nz) ceases or suspends (howsoever arising) to provide a website search engine in or relevant to New Zealand.
PAYMENTS AND PRICING
5.1 The Customer agrees to pay the Set Up Fee and Advertising Fees for the Google AdWords Listing as specified on the written Contract or verbal contract.
5.2 Where the Customer has agreed to pay the fees under this Contract by credit card or direct debit the Customer irrevocably authorises the Company to take payments of all amounts due on a recurring basis until this Contract is properly terminated or expires. If the Customer cancels the payment authority or payment is not able to be processed for any reason then the Customer remains liable for payment of the missed amounts as well as ongoing payments.
5.3 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Company on the due date(s) for any payment under this Contract, the Company may:
(a) Charge interest on such sum from the due date until date paid at a rate 2% above the unsecured overdraft rate from time to time of the Company’s bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand; and all other payments due until the expiry or termination date of the Contract shall remain due and payable; and/or
(b) Suspend the Google AdWords Listing until payment has been made in full or terminate this Contract as detailed in clause 6 below.
5.4 All sums due to the Company shall be paid without deduction or set off and in cleared funds. In the event of any cheque(s) or payment of any nature being reversed or returned unpaid, or not honored, the Company reserves the right to charge an administration fee of $35.00 (plus GST) per unsuccessful payment.
5.5 The Company may at anytime nominate a third party agency to recover fees the Customer is owing to the Company.
5.6 The Customer shall be fully liable for all and any actual costs the Company incurs in the collection or recovery of any amount due by the Customer under this Agreement.
5.7 If the Company has made multiple efforts by phone, email or letters due to delinquent payments or overdue accounts, the Company reserves the right to debit any accounts or credit cards the Company has on file in order to recover all overdue amounts.
SUSPENSION
6.1 The Company reserves the right, at the Company’s sole discretion, to suspend the Google AdWords Listing, without notice, if any payment under the Contract is not made in full on the due date; or
6.2 If the Company reasonably believes that:
(a) the Customer’s website contains defamatory or derogatory, misleading or deceptive material or content and/or infringes any third parties Intellectual Property Rights; and/or the Customer’s website is found to be hosting or distributing malicious software; or
(b) the Google AdWords Listing is subject to, or being affected by, any internet fraud, spam attack, and/or any unusual or excessive use, including but not limited to an excessive number of clicks on the Google AdWords Listing.
6.3 The Company shall not be obliged to reinstate the Google AdWords Listing until the Customer has paid any amounts due; and/or proven to the Company’s satisfaction that it has removed the offending material from its website as described in 6.2(a) and/or taken all necessary steps (if any) to stop action described in 6.2 (b) above.
6.4 The Company may give notice to the Customer that this Contract will be terminated without further notice if the Customer does not pay any overdue amount within 7 days, or does not remedy any other situation resulting in suspension within 15 days.
6.5 Suspension under this Clause 6 shall not relieve the Customer from the obligation to pay the Company the full amounts owed prior to date of suspension, or the obligation to continue to pay the Advertising Fee during the period of suspension for the remainder of the Contract period, or until the date of termination if terminated by the Company under this clause.
CONFIDENTIALITY
Subject to clause 9 below, both the Customer and the Company shall keep in strict confidence all information about the other which is of a confidential nature and has been disclosed to or become known to either party pursuant to or in connection with this Contract in any way.
LIMITATION OF LIABILITY
8.1 This clause 8 sets out the entire liability of the Company (including any liability for the acts or omissions of its employees, officers, agents, consultants, and subcontractors) to the Customer in respect of:
(a) any breach of the Contract;
(b) any use made by the Customer or any other person of the Company’s services or any part of them;
(c ) any representation, statement or tortious act or omission (including negligence) arising under or in connection in any way with the Contract or the Company’s Services.
8.2 The Company shall take all reasonable care and shall use its best endeavors to provide ongoing Google AdWords Listing that provide a first page position on Google; subject always to these Conditions, in particular but not limited to clauses 4.3 and 6 above.
8.3 All other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.4 The Customer acknowledges that the Google AdWords Listing is a service intended for business customers for business use and the provisions of the Consumer Guarantees Act do not apply.
8.5 The Customer acknowledges that:
(a) The Company is not an agent, employee or representative of Google and is an independent Google advertising professional.
(b) The Company cannot and does not make any representations or warranties on behalf of Google or any of its subsidiaries or members of its advertising networks.
(c ) The Company does not guarantee the performance of Google and shall not be liable for any act or omission of Google that may result in any loss or damage to the Customer.
8.6 The Company shall have no liability to the Customer if it is prevented from, or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control.
8.7 To the extent permitted by law:
(a) The Company shall not be liable for any claim, costs, damages, liability or loss of any nature suffered by the Customer or any third party in connection with this Contract or with the Services.
(b) Notwithstanding subclause (a) above, if the Company does have any liability to the Customer, the Company’s total liability shall be limited to the equivalent of the most recent three months Advertising Fees paid by the Customer under this Contract.
(c ) The advertising may contains links to third party websites that are maintained by others. These links are provided solely as a convenience to the Customer, and are not an endorsement by the Company of the contents on such third-party websites. The Company is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third-party sites. If the Customer decides to access linked third-party websites, the Customer dose so at their own risk.
8.8 No claim may be made or action taken by the Customer against the Company in connection with this Contract more than six months after earliest alleged breach or event or omission or more than three months after the date of termination of this Contract, whichever is earlier.
8.9 For the avoidance of doubt, the Company shall have no liability to the Customer if the Customer is subject to any internet fraud, spam attack and/or any other malicious activities, and the safe and secure operation of the Customer’s website shall remain the sole responsibility of the Customer.
PRIVACY OF INFORMATION
9.1 The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency in connection with this Contract, and personal data about the Customer will be processed by and on behalf of the Company and retained by the Company during the term of and in connection with this Contract.
9.2 Except as provided in this clause, the Company shall not use the Customer’s information or provide the Customer’s information to any third party without the Customer’s specific permission other than is necessary to enable provision of the services by the Company.
EXPIRY AND TERMINATION
10.1 All cancellations made by the Customer must be made in writing to the Company within 24 hours of the time of the contract.
10.2 If the Customer requests cancellation after the 24 hour period from the time of the contract agreement and prior to listing, but after production costs have been, Customer agrees to pay a sum equivalent to 60% of the total fees payable had the listing gone live. If the Customer requests cancellation after the 24 hour period from the time of the contract agreement and the cancellation occurs after the listing has gone live, the Customer must pay 100% of the total fees for the remaining term.
10.3 On expiration of contracts (final term completed) if there is no written cancellation of services, the customers will be on a month to month basis until further written cancellation notice. This will mean, the customer is liable for the contact of this period (i.e. phone, email, fax etc.) thereafter, if any changes, advertising fees, alterations to ‘Their’ incurred, the customer will be liable for any charges.
10.4 On expiry or termination of the Contract for any reason:
(a) The Company shall remove the Google AdWords Listing;
(b) The Customer shall immediately pay to the Company all amount(s) due to the Company;
(c ) Those clauses which are intended to survive, including clauses 7, 8 and 9 shall survive and continue in full force and effect.
GENERAL CLAUSES
11.1 No variation to this Contract is valid unless made, or agreed to, in writing by the Company. A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given.
11.2 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
11.3 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
11.4 The Company may subcontract, assign, novate or delegate in any manner any or all of its rights and obligations under the Contract to any third party or agent.
11.5 The Customer may only assign its rights and obligations to a third party with the Company’s consent and the assignee may be required by the Company to enter into a new Contract.
11.6 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
11.7 The interpretation and application of this Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall 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.
11.8 Any notice or communication given under this license by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to the Company must be sent to info@MilkyWeb.co.nz and accounts@MilkyWeb.co.nz or to any other email address notified by email to the Customer. Notices and correspondence to the Customer will be sent to the email address provided on the front page of this Contract unless an updated address is provided to the Company in writing.
11.9 A person who is not a party to this license has no right to benefit under or to enforce any of these terms.
INTERLECTUAL PROPERTY
12.1 For the purposes of this Contract, “Works” mean any and all proprietary materials and information embodied in, or relating to, the Services, including:
(a) all technical processes, systems, methods, software design, algorithms, codes, scripts and databases;
(b) all inventions, discoveries, improvements, enhancements, processes, information and know-how;
(c ) the Website and all MilkyWeb domain names, trademarks, trade names, get-ups, whether registered or not;
(d) all documentation and other records, reports, documents, papers and other materials whatsoever pertaining to the Services; and
(e) any derivative works of any of the aforesaid.
12.2 You hereby acknowledge and agree that:
(a) all proprietary rights, title and interests created or embodied in the Works belong to MilkyWeb to the fullest extent of the law, including all rights to copy, assign or licence such rights, title and interests to others for any purpose as MilkyWeb sees fit in its sole and absolute discretion;
(b) accordingly, without prior written consent of MilkyWeb
(i) you must not supply, sell or otherwise make available the Works or any parts thereof to any third parties; and
(ii) that you will, at your sole cost and expense, do all acts necessary to ensure that if, as a result of any breach of your obligation under Clause 12.2(b. i) MilkyWeb’s proprietary rights, title or interests herein have been infringed, such infringement shall cease immediately.
MilkyWeb Designer Graphics Terms & Conditions
By using MilkyWeb’s web design service, and signing up as a client, you agree to be legally bound by these terms and Conditions, including those incorporated by reference.
Description
1.1 The MilkyWeb service is an online offering where individuals or entities that have signed up with MilkyWeb as clients (“client”) can post via e-mail or via the web site specific assignments and project descriptions, including illustrative samples or other media, (“creative brief”), revise those creative briefs (“revision brief”) and obtain responses (“response”) to those creative or revision briefs from design experts retained by MilkyWeb (“company”).
1.2 Clients will be provided the service according to the estimate accepted by the client. Client’s responses will be created iteratively through a drafting cycle of creative briefs, revision briefs and responses, ultimately resulting in a final response conforming to client’s various creative and revision briefs.
Creative Brief and Responses
2.1 Each client is solely responsible for preparing and posting detailed descriptions of each of its creative briefs, including providing samples illustrating client’s creative brief (“samples”), site structure, number of pages required, the applicable deadline, and other relevant terms and conditions.
2.2 The company is under no obligation to review a creative or revision brief for any purpose, including accuracy, completeness of information, quality or clarity. The company may decide, in its sole discretion, to deny a creative or revision brief. The initial responses will be of the same calibre as the examples in the company portfolio.
2.3 The company is under no obligation to supply responses that do not adhere to their style, as it is assumed that the client has selected the company based on previous projects represented in its portfolio. Initial responses are supplied within 5 working days of payment being received.
2.4 The client must supply the company with adequate photography to use in the design; or the company will recommend a stock photography bundle to suit the project, at an additional cost to the client.
Client’s Responsibility
3.1 If a client fails to promptly inform the company that the response does not reasonably conform to the creative brief, the client will be deemed to have accepted the response. If a client notifies the company that the response does not reasonably conform to the creative brief, the client shall submit information regarding amendments or modifications to be made to the initial response (“revision brief”).
3.2 After providing a revision brief, the client will be provided with a subsequent response that conforms to the additional criteria requested by the client, free of charge. However, concepts provided in the initial response cannot be used after the second response has been given.
Responses
4.1 The company is not responsible for the content of responses developed to the extent that such responses are based on conformity with client’s creative or revision briefs.
Revision Cycles
5.1 Revision cycles consist of 1 additional composition that incorporates changes requested by the client in the revision brief. The client is responsible for providing constructive feedback for each revision cycle. The purpose of the revision process is to create responses that move forward in a specific direction as determined by the client.
5.2 The client may request significant changes in the 1st cycle, and the response might be quite different in nature from the original composition chosen. By the 2nd revision request, client’s requests shall be modifications of the current composition only.
5.3 Revision requests that depart from the current composition will be honoured and completed in the same timely manner, however; the company reserves the right to quote accordingly for each such revision.
5.4 No revision work, which requires payment, will be started without authorisation from the client. Revision cycles are supplied for free within each package, and therefore cannot be refunded or exchanged for other services. Revision cycles are supplied within 5 working days of receiving the revision brief.
5.5 Unless otherwise stated, each project includes three revision cycles after the initial work or concept is presented. Revisions requested after the third revision will be charged at MilkyWeb’s standard hourly rate.
Proofing
6.1 The company shall make every effort to ensure the final product is free of any grammatical and spelling errors, before giving the final product to the client.
6.2 It is agreed that it is the client’s responsibility to ensure that there are no spelling or grammatical errors contained in the final product.
6.3 It is agreed that the company is not responsible or held liable for any errors contained in the final product after the final product has been committed to print or posted in view of the public.
6.4 It is the sole responsibility of the client to notify MilkyWeb of any such errors during the revision cycle and before the final files have been generated. If a further revision is required an additional revision charge will be incurred.
Final Files
7.1 Once the client approves of the design and notifies the company, final HTML, images and other web files will be uploaded to the client’s website or supplied to the client directly. If the client requires further revisions after this time, the company will recommend a web maintenance bundle to the client at an additional cost.
7.2 Additional formats, including variations on the chosen design, are not included in the package and The company will supply the client with a quotation for any additional formats or Revisions that are required.
Site Deployment
8.1 Unless otherwise stated in the approved quotation, it is assumed that the website will be deployed on the company’s web server. Should the client require installation on an alternative server, the quote will be adjusted accordingly.
8.2 If the client is not using a hosting package purchased from the company, it is the responsibility of the client to supply the company with a web space which supports any technologies used within the website and FTP details where the files can be uploaded.
Post Site Deployment Warranty
9.1 After the site has been launched any bugs / site errors will be rectified for free by the company for up to 4 weeks. After this period any errors or changes will be rectified and charged at standard MilkyWebs hourly rate.
9.2 In the event that the client or a third party modifies the website after the site has been deployed, the warranty will be deemed void.
Errors & Liabilities
10.1 The company will use all due care to ensure sites worked are free of errors.
10.2 The company will correct any errors relating to the site in the course of working on a client’s site.
10.3 The company does not accept any responsibility for losses or damage arising from errors within any site or if a site is not placed “live” on the Internet.
Intellectual Property & Copyright
11.1 All created files remain the property of the company until paid for in full by the client in full.
11.2 The client acknowledges and agrees that the company owns and shall continue to own the intellectual property rights in any methods, processes, tools or applications of MilkyWeb existing prior to this agreement. The company grants the client a non-exclusive licence to use such pre-existing intellectual property in relation to the work developed under this agreement for the life of that work.
11.3 The company observes Privacy Laws and Guidelines relating to personal data. Any pre-existing or third party code, original artworks or graphics developed by the company or our contractors including HTML mark-up, Flash and multi media including audio and video, database design and development, data collection and web based administration are licensed to the client for use in their own single website. It cannot be copied, reused or resold without the written permission of the company. Original graphics created for use in the proposed website cannot be re-used in any other website or for other promotional media including brochures, press or other advertisements without our express written permission and/or additional fees.
11.4 The company retains the right to use all artwork created in advancing the profile of the company and to be recognised for artwork created by the company
Client Accounts
12.1 Estimates are based on specifications and functionality discussed or listed in documents and email correspondence; any scope creep will affect the price of the project and additional costs may be charged at an hourly rate or re-quoted upon. The estimate is valid for 7 days after issuance; and as such the site or artwork will be released only upon receipt of the final payment.
12.2 The client registering for the service must pay for the service via direct deposit, credit card, or other payment method expressly authorised by the company, at the time of registration for the service. The client will be charged for the package(s) selected. The company will e-mail the client a receipt or tax invoice for the transactions in which the client is involved.
12.3 The client will remain liable for all fees during any period when Services have been discontinued or suspended due to a failure on your part to comply with these terms and conditions
12.4 The client will be invoiced as agreed in acceptance of our quotation. All accounts are payable within 7 days of invoice.
12.5 Payments that are overdue will accrue at the rate of 10 percent per annum calculated daily from the due date, until paid in full to the company. All intellectual property rights in respect of intellectual property created by the Company in the course of your project remain with the Company until payment is made in full by the client, at which time they shall immediately pass to the client.
12.6 A 50% deposit of the total fee payable is due immediately upon the client instructing the company to proceed with the website design and development work. The remaining 50% shall become due when the work is completed to the client’s reasonable satisfaction but subject to the terms of clause 5. The company reserve the right not to commence any work until the deposit has been paid in full.
12.7 Upon timely receipt of a written request, the company may refund the deposit made by the client, less time and or materials accumulated up to the time of cancellation. All elements of the project must then be returned to the company. Any usage by the client of those design elements will result in appropriate legal action. The client shall bear all costs, expenses, and reasonable attorney’s fees in any action brought to recover payment under this contract.
12.8 Cancellation refund terms are strictly up to 7 days after the agreement has been made in which a cancellation may be made to be eligible for any refund. After 7 days any right to a refund is forfeited. If the client decides to cancel the project before the project has been completed, the client will not be eligible for a refund.
Project Duration
13.1 The client agrees to provide timely responses to the company after receiving status notifications from the company. The client shall have 30 days to respond to each set of responses submitted to the client for review. If after 30 days the client has failed to respond, the company will deem the project complete. At such time, the company shall have no further obligation to the client, and the client shall pay the company all fees and expenses associated with work performed by the company.
Eligibility Requirements
14.1 To register as a client, you must be at least 18 years of age, agree to these terms and conditions and the privacy policy, and complete the registration procedure.
14.2 By registering as a client, you represent and warrant that you meet these eligibility requirements, that the information you include as part of the registration process is complete and accurate and, if you are registering on behalf of an entity, that you are authorised to bind that entity to these terms and conditions. The company may accept or reject your registration in its sole discretion. The service is not directed to children.
Ownership of Project Attributes
15.1 Until full payment has been made, the company retains ownership of all original artwork or parts contained therein, whether preliminary or final. Upon full payment, the client shall obtain ownership of the final artwork to use and distribute as they see fit. However, in no event may the client use the final design in any design portfolio without crediting the company.
15.2 The Company and its employees shall not at any time during the provision of the services to the client or thereafter, except in the course of their duties or as required by law, divulge any confidential information of or in relation to the client to anyone whatsoever without the prior consent in writing of the client.
15.3 Protection under designs legislation concerns the visual appearance there of. It thus relates to the shape, configuration, pattern or ornamentation which, when applied to a product or service, gives that a unique appearance.
15.4 The company retains the right to use the completed project and any preliminary designs for the purpose of design competitions, future publications on design, educational purposes, marketing materials, and portfolio. Where applicable the client will be given any necessary credit for usage of the project elements.
15.5 The website design shall include a discreet link to the company’s website, such as in the footer.
Third Party Shipping
16.1 In the event any material necessary for the production of the project must be shipped to a third party for additional processing, typesetting, photographic work, colour separation, press work, or binding, the company will incur no liability for losses incurred in transit, or due to the delay of the shipper of the third party.
Production Schedule / Delivery of Project
17.1 The client will assume any shipping or insurance costs related to the project. Any alteration or deviation from the above specifications involving extra costs will be executed only upon approval with the client.
17.2 The company shall not incur any liability or penalty for delays in the completion of the project due to actions or negligence of client, unusual transportation delays, unforeseen illness, or external forces beyond the control of the company. If such event(s) occur, it shall entitle the company to extend the completion/delivery date, by the time equivalent to the period of such delay.
Suspension of Services
18.1 MilkyWeb reserves the right to suspend services in any case where you fail to perform your obligations under this agreement. If payment for services is not received within the terms of payment stipulated by us websites may be taken down until payment is confirmed.
18.2 MilkyWeb may from time to time and without notice or liability to you suspend any of the services if the reason for doing same is an event beyond the reasonable control of MilkyWeb.
Termination
19.1 MilkyWeb may discontinue services if an amount payable to MilkyWeb is overdue or take down a website permanently in any case where an amount payable is overdue by more than 10 days. In any such event, you remain liable for the total cost of the contract including all disbursements; unless otherwise agreed between the parties.
MilkyWeb Communications – Terms & Conditions of Service
Acceptance of Terms
1.1 Unless otherwise agreed in writing, the supply of all Services offered by MilkyWeb and/or its associates, related parties, successors and assigns (collectively referred to as ” MilkyWeb “) to any persons (hereinafter referred to as “User”, “you” or “your”) shall be governed by the Terms & Conditions of Service (TCS) set herein.
1.2 This TCS is supplementary to the General Terms & Conditions and all provisions are incorporated into the General Terms & Conditions by this reference. By using the Services described herein, you hereby acknowledge and agree to be bound by this TCS and the General Terms & Conditions.
Definitions
2.1 In these Terms & Conditions of Service (“TCS”), the following terms and expressions shall have the following meanings:
(a) ” MilkyWeb ” means MilkyWeb (Company Number: 4118959) located at 86G Bush Road, Albany, Auckland.
(b) “Carrier” means the third party telecommunications carrier who operates the Network;
(c ) “Call Recording Service” means the service provided by MilkyWeb that enables you to record an Incoming Call;
(d) “Call Tracking Service” means the service provided by MilkyWeb that enables tracking of relevant Incoming Call information to be made, including but not limited to, the Calling Party’s Personal Information and location, advertising source, day, time and duration of the Incoming Call and Incoming Call history;
(e) “Calling Party” means a person from whom you receive an Incoming Call;
(f) “Incoming Call” means a telephone call that you receive using MilkyWeb Services;
(g) “Data” means any and all information and reports procured, collected or compiled by MilkyWeb in respect of a Calling Party, including, without limitation:
(i) Incoming Call logs;
(ii) Incoming Call activity reports;
(iii) Advertisement source of Incoming Calls; and
(iv) Personal Information of a Calling Party;
(h) “Dynamic Call Routing Service” means the service provided by MilkyWeb than enables the automatic routing of Incoming Calls to appropriate branch or regional office based on the Calling Party’s phone number, and allows for prompting of the Calling Party to enter a postcode for appropriate routing when the Calling Party’s location cannot be determined;
(i) “General Terms & Conditions” mean the terms and conditions governing the access and use of the Website as updated from time to time;
(j) “Interactive Voice Response Service” means the service provided by MilkyWeb comprising a system for routing Incoming Calls or providing recorded information for improving Calling Party waiting time and call resolution;
(k) “Network” means the telecommunications network of the Carrier, which MilkyWeb uses to supply the Services;
(l) “Missed Call Notification Service” means the service provided by MilkyWeb that enables the Recording of missed Incoming Call information to be made, including but not limited to, the Calling Party’s phone number if the number is not blocked, and a voicemail recording if the Calling Party leaves a message;
(m) “Personal Information” means information that may be used to identify a Calling Party, including without limitation, the Calling Party’s Incoming Call number, address, fax number and/or email address;
(n) “Phone Number” means a MilkyWeb telephone number that you wish to use to answer an Incoming Call;
(o) “Recording” means a recording of an Incoming Call;
(p) “Services” mean the services supplied MilkyWeb under this TCS, comprising of the following: (i) Call Recording Service;
(ii)Call Tracking Service;
(iii) Dynamic Call Routing Service;
(iv) Interactive Voice Response Service;
(v) Missed Call Notification Service; and
(vi) any other services as MilkyWeb may provide from time to time;
(q) “Website” means MilkyWeb website www.MilkyWeb.co.nz or any other platform, facility or server which the Services supplied by MilkyWeb under this TCS may be accessed or used by you.
Provision of Services
3.1 In supplying the Services, MilkyWeb shall provide the following:
(a) a Phone Number through which the Services shall be utilised and which forms part of the Network of the Carrier;
(b) equipment required for handling and managing the Services which MilkyWeb in its sole discretion considers appropriate and necessary; and
(c ) reasonable technical and sales support which MilkyWeb in its sole discretion shall consider appropriate and necessary.
3.2 Unless explicitly stated otherwise, any new services, features, content or applications offered or made available from time to time by MilkyWeb to you shall be subject to this TCS.
Your Obligations
4.1 In using the Services, you expressly agree and acknowledge that:
(a) the Phone Number provided is made available to you only in connection with the supply of Services by MilkyWeb and forms part of the Services so supplied;
(b) accordingly:
(i) you are not entitled to, and you have no right or interest in, any Phone Numbers supplied by MilkyWeb to you if you decide to terminate the Services herein;
(ii) you must not port any Phone Numbers supplied by MilkyWeb to an alternative service provider or Carrier or Network without the prior written consent of MilkyWeb. You hereby acknowledge and agree that MilkyWeb shall be entitled to receive compensation from you of an amount to be determined by MilkyWeb in its sole and exclusive discretion should MilkyWeb agree to grant consent to you in respect of the aforesaid porting;
(iii) MilkyWeb may, without any notice or liability to you, discontinue or modify any Phone Numbers supplied to you at any time for any reason whatsoever, including but not limited to discontinuance or modification required by reason of a request made by the Carrier, Network requirements or statutory, regulatory and legal compliance. You hereby acknowledge and agree that:
you must, unless this TCS is terminated in accordance with Clause 7, accept any such new or modified Phone Numbers issued to you by MilkyWeb and that MilkyWeb shall, but is not obliged to, give you written notice of any the discontinuance of, or modifications made to, a Phone Number as soon as is reasonably practicable; and
you have no claim against MilkyWeb for any loss or damage you may suffer as a result of such discontinuance or modifications.
(c ) MilkyWeb may from time to time, change, enhance or update any and all equipment described in Clause 3.1(b) for any reason whatsoever without any notice or liability to you. You hereby acknowledge and agree that you have no claim against MilkyWeb for any loss or damage you may suffer as a result of such change, enhancement or update.
4.2 You further acknowledge, agree and warrant that:
(a) you will refrain from taking any action which has or is likely to have the effect of interfering with or threatening the operation, stability, viability or integrity of the Network;
(b) you must only use the Services for your own business needs and requirements;
(c ) you must not use the Services for your personal purposes nor for any purposes which are unlawful, abusive, harmful, threatening, defamatory or in any way infringing any copyright, trademark or other intellectual property rights of any other persons;
(d) you must not re-supply, re-sell, chain or group the Services in any way without the prior written consent of MilkyWeb;
(e) you are fully responsible for maintaining the confidentiality of your Services password and account issued to you by MilkyWeb, and are fully responsible for all activities the occur under the same. Accordingly, you must:
(i) immediately notify MilkyWeb of any unauthorised use of your password or account or any other breach of security; and
(ii) ensure that you exit from your account at the end of each session;
(iii) MilkyWeb will not be liable to you for any loss or damage you may suffer if a person quoting your password requests changes to your Service or account details. You will be responsible for all fees associated with your Service and account whether transactions were authorised by you or not.
(f) you must co-operate with MilkyWeb in relation to any complaints, enquiries or investigations into or in connection with any services offered by you, in which the Services supplied by MilkyWeb are utilised. You hereby agree and acknowledge that you shall, at MilkyWeb’s discretion, and without limitation, bear in full any costs associated with such complaints, enquiries or investigations.
4.3 You also agree that you must ensure that any other persons having access to, or are using, the Services, including your employee, contractor, officer, agent or authorised representative or other third party, shall be made aware of and will observe the same obligations, restrictions and limitations as set out in this TCS.
Call Recordings and Personal Information
5.1 As part of the process of supplying the Call Recording Service to you or in any other Services supplied to you where Recordings are, at your option, made by us, whenever a Calling Party dials your Phone Number:
(a) you are requesting MilkyWeb to initiate an Incoming Call Recording. Once initiated, MilkyWeb will record the full length of the Incoming Call; and
(b) you are requesting MilkyWeb to collect or compile Personal Information in respect of the Calling Party.
5.2 In using the Call Recording Service or any other Services where Recordings are, at your option, made by us, you expressly agree and acknowledge that:
(a) you authorize MilkyWeb to make Incoming Call Recordings and collect Personal Information on your behalf. Without limiting the generality of the aforesaid, you specifically authorize MilkyWeb to act as your agent in respect of all Caller Line Identification data and other personal information collected by MilkyWeb;
(b) you either:
(i) authorize MilkyWeb to play a voice message advising the Calling Party that the Incoming Call is being recorded prior to the said Incoming Call being connected to you or your employee, contractor, officer, agent, authorised representative or other third party answering the Incoming Call; OR
(ii) make the necessary arrangements to ensure that the Calling Party is provided with the necessary warning about the presence of any Recordings made of an Incoming Call in accordance with the law;
(c ) all Incoming Call Recordings are stored MilkyWeb for a period of one (1) month, commencing the date that a Recording is made. Following the expiry of the storage period, you will not be able to retrieve a copy of the Recording and you hereby acknowledge and agree that MilkyWeb shall have no liability whatsoever for any failure to retain or store such copies of Recordings beyond the said storage period;
(d) all Personal Information collected or compiled by MilkyWeb or, and supplied to, you must be used by you and your employee, contractor, officer, agent, authorised representative or other third party in compliance with the law, including without limitation, any provisions under the Telecommunications Act 2001 and the Privacy Act 1993,and all regulations or guidelines promulgated thereunder as well as provisions under the Crimes Act 1962;
(e) you must notify your employee, contractor, officer, agent, authorised representative or other third party that their telephone conversation with a Calling Party in respect of an Incoming Call is being recorded by MilkyWeb through or in connection with the Services; and
(f) MilkyWeb shall have no liability whatsoever in respect of any use made by you, your employee, contractor, officer, agent, authorised representative or other third party, of the Recordings and its contents, and/or of any Personal Information.
Billing and Payment
6.1 You will be charged in accordance with the rate schedule published or notified MilkyWeb from time to time. MilkyWeb reserves the right to change the rates from time to time. All Charges are exclusive of GST.
6.2 You shall pay any and all amounts invoiced MilkyWeb to you in relation to the provision of Services by the due date specified in any such invoice. Without limiting any other rights MilkyWeb may have under this TCS or by force of law or equity, if you fail to make full payment of the aforesaid by the due date, MilkyWeb may:
(a) charge interest at the rate of 10% per annum calculated daily on all overdue monies (excluding interest under this Clause) until the same is paid in full;
(b) charge an administrative fee for any administrative costs incurred in respect of the your failure to make full payment hereof;
(c ) cancel or suspend your account or your Phone Number;
(d) terminate any contracts between you MilkyWeb and demand immediate payment of monies due and owing under such contracts;
(e) cancel any rebate, discount or allowance due or payable by MilkyWeb as at the date of the event;
(f) institute any recovery process as MilkyWeb thinks fit at your sole cost and expense.
6.3 You hereby acknowledge and agree that you are not entitled to set off or deduct any amounts due and owing by you under this TCS, whether or not an existing dispute or claim has been made by you against MilkyWeb or for any reason whatsoever.
Term and Termination
7.1 This Agreement shall continue if there is no written cancellation notice within 30 days from the customer upon the completion of their arranged Term. You must give us 30 days notification to stop the services or they will just roll over on the same plans pricing for the same term.
7.2 This Agreement will immediately and automatically terminate if MilkyWeb’s right to provide the Services ceases for any reason.
7.3 MilkyWeb may immediately suspend or discontinue the provision of the Services to the Customer, or terminate this Service Agreement with immediate effect by giving notice to you at any time if, in MilkyWeb’s reasonable opinion:
(a) you breach any of your obligations under this TCS;
(b) you fail to pay any MilkyWeb invoice by the due date and time shall be of the essence;
(c ) you cease, or threaten to cease to conduct business in the normal manner; and
(d) MilkyWeb’s right to provide Services or any Carrier’s right to provide access to the Network ceases or is suspended or interrupted for any reason whatsoever.
7.4MilkyWeb provides a Minimum Term arrangement which does alter dependant on the customer, if there is NO written notice to cancel, the arrangement will be a transition to a month to month basis. Intellectual Property
8.1 For the purposes of this TCS, “Works” mean any and all proprietary materials and information embodied in, or relating to, the Services, including:
(a) all technical processes, systems, methods, software design, algorithms, codes, scripts and databases;
(b) all inventions, discoveries, improvements, enhancements, processes, information and know-how;
(c ) the Website and all MilkyWeb domain names, trademarks, trade names, get-ups, whether registered or not;
(d) all documentation and other records, reports, documents, papers and other materials whatsoever pertaining to the Services; and (e) any derivative works of any of the aforesaid.
8.2 You hereby acknowledge and agree that:
(a) all proprietary rights, title and interests created or embodied in the Works belong to MilkyWeb to the fullest extent of the law, including all rights to copy, assign or licence such rights, title and interests to others for any purpose as MilkyWeb sees fit in its sole and absolute discretion;
(b) accordingly, without prior written consent of MilkyWeb
(i) you must not supply, sell or otherwise make available the Works or any parts thereof to any third parties; and
(ii) that you will, at your sole cost and expense, do all acts necessary to ensure that if, as a result of any breach of your obligation under Clause 8.2(b)(i MilkyWeb proprietary rights, title or interests herein have been infringed, such infringement shall cease immediately.
Confidentiality
9.1 MilkyWeb will at all times maintain as confidential, Confidential Information, meaning all Works, technical and business information and associated matter now in your possession and control or which may exist in the future including but without limitation data, reports, studies and customer information. Confidential Information shall not include information which is generally available in the public domain or was known MilkyWeb prior to the disclosure by you or by your employees, representatives or associates.
9.2 Unless expressly stated otherwise in this TCS or in any other terms of service as may be specified by MilkyWeb respect of the provision of any service, or unless prohibited by any laws or regulations, all Data resulting from the provision of the Services may be used for MilkyWeb own internal research and record keeping purposes and whilst respecting the confidentiality of such Data, MilkyWeb may extrapolate and use the Data for the aforesaid purposes.
Status of User
10.1 In using the Services, you acknowledge and agree that:
(a) there is no relationship between you MilkyWeb in common law, contract or otherwise other than that as a User;
(b) save for the making of any Incoming Call Recording and the collection of any Personal Information by MilkyWeb in accordance with Clause 5 on your behalf, nothing in this TCS shall create or imply an agency relationship between you and MilkyWeb, nor will this TCS be deemed to constitute a joint venture or partnership between you and the MilkyWeb and
(c ) accordingly, you have no authority or power to enter into any agreement to create any obligation or responsibility on behalf of or in the name of MilkyWeb
Third Party Access and Use
11.1 The provisions of this clause shall prevail over any other clauses to the contrary which may be contained in this TCS.
11.2 If, on prior approval of MilkyWeb in writing, the Phone Number or Phone Numbers supplied by MilkyWeb to you under this TCS is or are re-supplied by you to, and/or is or are used or accessed by, any third party or any of MilkyWeb Services thereof are used or accessed by such third party, then you expressly acknowledge and agree that:
(a) you remain at all times primarily contractually responsible for complying with all obligations under this TCS; and
(b) you must ensure that all such third parties are expressly aware of the obligations, restrictions and limitations imposed with respect to the Phone Number or Phone Numbers supplied by MilkyWeb herein or any Services thereof as set out in all provisions of this TCS.
Compliance with Laws
12.1 You will at all times comply with the provisions of all laws to your use of the Services and any Recording, including without limitation the Telecommunications Act 2001 and the Privacy Act1993, and all regulations or guidelines promulgated thereunder as well as provisions under the Crimes Act 1962. In particular, you are solely responsible for giving the Calling Parties any necessary warning about the presence of any Recordings made of an Incoming Call and the use or uses that will be made of the same.
12.2 MilkyWeb shall have no obligation to advise you upon compliance with any such laws. You shall indemnify and keep indemnified MilkyWeb from and against any liability arising from any claim that your use of the Service and/or a Recording breaches any law.
Limitation of Liability and Indemnity
13.1 To the fullest extent permitted by law, all conditions, warranties, representations, liabilities and obligations, whether expressed or implied, including any conditions or warranties as to merchantability, fitness for purpose or correspondence with description or representations as to results arising from the use of the Services, are hereby excluded by MilkyWeb
13.2 MilkyWeb shall not be liable, under any circumstances, for your indirect, special, incidental or consequential loss or damage that may arise in respect of this TCS or loss of profit, business, revenue, goodwill or anticipated savings, and MilkyWeb liability under this TCS shall be limited solely to the supplying of the Services again or the payment of the cost of having the Services supplied again, as MilkyWeb may select.
13.3 You shall indemnify MilkyWeb against all claims, demands, liabilities, loss, expenses, costs and damages incurred by or made against MilkyWeb as a result of, or arising in connection with:
(a) any breach of your obligations under this TCS, including, without limitation, any failure to comply with Clauses 4.2(b), 5.2(b)(ii), 5.2(d), 5.2(e) and 11.2(b) in respect of Incoming Call Recordings and Personal Information; and/or
(b) the re-supply of, and/or use of or access by, any third party of such Phone Numbers or any of MilkyWeb Services thereof, whether such re-supply, use or access was authorised by you or otherwise.
General
14.1 MilkyWeb may, from time to time, make reasonable variations to this TCS if necessary to comply with any contractual, statutory or a regulatory requirement.
14.2 This TCS contains the entire understanding and agreement between the parties as to its subject matter. No oral explanation or information provided by any party to another shall affect the meaning or interpretation of this agreement or constitute any collateral agreement, warranty or understanding between the parties.
Applicable Law
15.1 The laws of New Zealand govern this TCS and the parties agree to submit to the jurisdiction of the New Zealand courts and tribunals.
Waiver and Severability of Terms
16.1 The failure of MilkyWeb to exercise or enforce any right or provision of this TCS shall not constitute a waiver of such right or provision.
16.2 If any provision of this TCS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this TCS remain in full force and effect.