Legal stuff you need to know
Date: October 2011
These are the standard terms and conditions ("Terms and Conditions") of supply of the Domainz Social Accelerator service ("Service") offered from time to time.
Please read these Terms and Conditions carefully. It is a condition of your use of the Services that you ("you" and "your") comply with these Terms and Conditions.
1. Terms and Amendment Procedure
1.1 This agreement comprises:
1.1.1 the Terms and Conditions of this agreement;
1.1.2 the Domainz Standard Terms and Conditions located at http://www.domainz.net.nz/about/policies/standard-terms-and-conditions; and
1.2 This agreement commences on the date upon which Domainz confirms to you by email or any other medium that the Service has commenced ("Commencement Date").
1.3 We may vary these terms or the terms of the operation of the Service, at any time by a general notice on a page of the Internet referred to on the home page of our website at http://www.domainz.net.nz/about/policies/ ("Domainz Website"). Changes that are of benefit to your will become effective upon publication of the notice. Changes that may detrimentally affect you will become effective after 30 days from publication of the change. We may at any time and without prior notice or liability to you alter the Service in the course of ongoing development of the Service.
1.4 If you use a Service after publication of any change in accordance with clause 1.3, your use will constitute acceptance of those revised terms and conditions.
1.5 These Terms and Conditions constitute the agreement in its entirety and supersede all prior agreements.
1.6 The following definitions apply to these Terms and Conditions:
"Facebook" means the online social interaction tool and website located at www.facebook.com
"Facebook Account" means an account created in your name with Facebook at www.facebook.com
"Facebook Page" means a page created via http://www.facebook.com/pages/create.php
"Supplied Content" means all data, media or content provided by you to Domainz for the Service.
"Supplied Details" means all information supplied by you to Domainz for the Service.
2.1 Domainz will use reasonable efforts to provide to you the Service, including:
2.1.1 setting-up a Facebook Page for you;
2.1.2 setting-up a Facebook Account for you (if required);
2.1.3 uploading your Supplied Content onto your Facebook Page;
2.1.4 providing a report per month for first three months (subject to you meeting certain Facebook requirements)
2.2 You agree to provide Domainz with all requested and required information to enable Domainz to provide the Service to you, and warrant that all Supplied Details are true and correct, and belong to you. You acknowledge that any failure by you to provide such requested information will be detrimental to Domainz's ability to provide the Service, and Domainz will not be responsible for any resultant failure in delivering the Service.
2.3 You appoint Domainz to act as your agent to:
2.3.1 access and utilise Facebook for the purposes of provisioning the Service;
2.3.2 use your Supplied Details and Supplied Content for the purposes of provisioning the Service;
2.3.3 enter into to all applicable Facebook terms and conditions on your behalf, including but not limited to:
18.104.22.168 Facebook Pages Terms located at http://www.facebook.com/page_guidelines.php;
22.214.171.124 any other Facebook terms and conditions located at www.facebook.com which you are required to accept and agree to in using and accessing Facebook, as may be updated from time to time.
2.4 You shall at all times keep your Facebook Account and Facebook Page passwords and log-in details ("Password Details") secure. You agree that you are entirely responsible for when and how your Facebook Account or Facebook Page is used, including use by Domainz in provisioning the Service in accordance with these Terms and Conditions.
2.5 You agree that you are solely responsible for all Supplied Information and Supplied Content and any use of it by Domainz in provisioning the Service in accordance with these Terms and Conditions.
2.6 You expressly grant to Domainz a licence to use your Supplied Details and Supplied Content in provisioning the Service, and consent to your Supplied Details and Supplied Content being published on Facebook. You agree that you shall be responsible for obtaining any agreements and/or consents required of any third party in connection with the grant of this licence to Domainz, and you warrant that all such consents have been obtained. You also agree that any retention of Supplied Content in Domainz's systems is not an infringement of your intellectual property rights, and warrant that it is not an infringement of the intellectual property rights of any third party.
2.7 If you have provided Supplied Content to Domainz in hardcopy together with a stamped, self-addressed envelope, you may request Domainz to provide you with your Supplied Content. You agree that Domainz will otherwise not be required to provide you with hardcopies of your Supplied Content.
2.8 You acknowledge that Domainz has no control or relationship with Facebook, and that any maintenance performed by Facebook may affect the functionality of your Facebook Account or Facebook Page. Any maintenance or modifications which result in any loss of functionality to your Facebook Account or Facebook Page are beyond Domainz's control and is an issue between you and Facebook.
2.9 You agree that:
2.9.1 you are the owner of all Supplied Content;
2.9.2 all Supplied Details belong to you, and are true and correct;
2.9.3 you are responsible for all content displayed on your Facebook Page, and that Domainz has no connection or responsibility either to you or any third party for any content displayed;
2.9.4 You are solely responsible for your Facebook Page;
2.9.5 use of Facebook, a Facebook Account or a Facebook Page is at your own risk, and is in no way endorsed by Domainz;
2.9.6 Domainz's association with your Facebook Account or Facebook Page is limited to Domainz's creation of your Facebook Account (if required) and Facebook Page as your agent. Domainz's association with your Facebook Account or Facebook Page will cease immediately once your Facebook Account (if required) and Facebook Page have been created and you have been notified you of the same.
3. Billing and Payment
3.1 You must pay for the Service in accordance with the prices published by Domainz on the Domainz Website, or as Domainz has otherwise provided to you. Prices published on the Domainz Website are inclusive of any government taxes or charges, unless otherwise noted. All payments for this Service are required upfront prior to any work being performed by Domainz.
3.2 You agree that in the event of any action being taken by Domainz to recover any overdue amount due to it under this agreement, as evidenced for example by, without limitation, your credit card company notifying Domainz of you disputing the payment of, or refusing to pay such charge, or where your credit card payment has been declined or reversed, any costs incurred by Domainz in recovering the debt (including, without limitation, any legal expenses (on a solicitor/client basis), collection agency charges or any other reasonable associated costs incurred by Domainz) are payable by you to Domainz and shall be recoverable by Domainz as a separate debt.
4.1 You agree to comply with Domainz's Acceptable Use Policy located at http://www.domainz.net.nz/about/policies/acceptable-use-policy, as varied from time to time by Domainz in accordance with clause 1.3 ("AUP").
4.4 You consent to your Supplied Details and Supplied Content being displayed and made publicly available on Facebook.
5. Your Warranties
You warrant that:
5.1 you have not entered into this agreement or obtained the Service on the basis of, or in reliance on, any statement or representation (whether made orally or in writing and regardless of the medium used) made by Domainz concerning this agreement or the Service, other than any statement or representation contained in this agreement;
5.2 you are at least 18 years of age;
5.3 you have read, understood and agree to all applicable terms and conditions located at www.facebook.com;
5.4 your use of the Service, or any Supplied Content, will not at the Commencement Date or thereafter, infringe the intellectual property or other proprietary rights of Domainz or any third party;
5.5 you will conduct such tests and computer virus scanning as may be necessary to ensure that any data uploaded or provided to Domainz (including but not limited to any Supplied Details or Supplied Content) by you does not contain any computer virus and will not in any way, corrupt the data or systems of any person (including, without limitation, Domainz or Facebook); and
5.6 you will otherwise at all times act in accordance with this agreement.
6. Our General Disclaimer of Warranties
6.1 To the extent permitted by law, neither Domainz nor any employees, affiliates, agents, suppliers, third-party information providers, merchants, licensors nor the like (each a "Relevant Party") of Domainz, make any warranties of any kind, either expressed or implied, statutory or otherwise, relating in any way to the subject matter of this agreement, including, but not limited to, warranties of merchantability or fitness for a particular purpose, or non-infringement for the Services or any equipment provided, and all such warranties are hereby excluded.
6.2 Domainz agrees to use all reasonable efforts to provide the Service to you. However, you acknowledge to, and agree with, Domainz, that nothing in this agreement shall constitute an express or implied warranty or guarantee by any Relevant Party of Domainz:
6.2.1 that the Service will be uninterrupted, error free or not subject to delays (technical or otherwise);
6.2.2 that the Service will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of Domainz;
6.2.3 concerning the results or success that may be obtained from the use of the Service;
6.2.4 concerning any increase in revenue, profit or goodwill that may be obtained as a consequence of you using the Service; and
6.2.5 as to the accuracy, reliability, completeness or content of the Service, any information services or merchandise contained in or provided through the Service, or, for the avoidance of doubt, any information provided by Domainz in any advice, report or communication to you or any other party.
6.3 You acknowledge and agree that no Relevant Party exercises any control over, and accepts no responsibility for, the content of the information (including, without limitation, your Supplied Content) you have provided.
6.4 You further agree that no Relevant Party shall be liable for your Supplied Content or loss of any of your Supplied Content.
You agree to indemnify, keep indemnified and hold Domainz and all directors, officers, employees, and agents of Domainz (each an "Indemnified Party") from and against any and all actions, claims, proceedings, losses, damages, costs and expenses (including legal fees and expenses on a solicitor/client basis) and other liabilities of whatever nature, whether foreseeable or not, and whether direct or indirect, incurred by any Indemnified Party in respect of any claim by a third party arising in connection with this agreement.
8. Limitation of Liability
8.1 To the maximum extent permitted by law, you agree that Domainz will not be liable for any indirect, incidental, special or consequential damages, or loss of profits, goodwill, business opportunity, revenue, data or use, suffered by you or any third party, whether in an action in contract, tort or strict liability or other legal theory, even if Domainz has been advised of the possibility of such damages.
8.2 To the maximum extent permitted by law, Domainz's aggregate liability for all loss or damage excluded under clause 8.1 (regardless of the legal basis on which the loss or damage arises or is incurred)
8.3 You agree that where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, the liability of Domainz for any breach of the term will, if permitted by that statute, be limited, at our option, to the re-supply of the services again, or payment of the cost of having the services supplied again.
8.4 We acknowledge that some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so that the above limitations or exclusions may not apply to you. In such jurisdictions, the liability of Domainz (and the liability of any director, officer, employee, agent, or affiliate of Domainz) shall be limited to the greatest extent permitted by applicable law.
9. Intellectual Property
9.1 You acknowledge that all right, title and interest in any and all:
9.1.1 any documentation and material that is part of, or provided by Domainz with, the Service; and
9.1.2 any know-how, trademarks or service marks of Domainz,
(collectively, "Our Intellectual Property") is vested in Domainz and/or the licensors of Domainz.
9.2 Unless otherwise specifically provided in this agreement, you agree that you shall have no right, title, claims or interest in or to Our Intellectual Property.
9.3 You may not copy, modify or translate any of Our Intellectual Property or related documentation, or decompile, disassemble or reverse engineer any of Our Intellectual Property, to use it other than in connection with the Service, or grant any other person or entity the right to do so.
9.4 Unless otherwise specifically permitted by this agreement, you are not authorised to distribute or to authorise others to distribute any of Our Intellectual Property in any manner without the prior written consent of Domainz; provided, however, that nothing in this clause 9.4 shall preclude you from using Our Intellectual Property as incorporated in the Service.
10. Force Majeure
Domainz will not be liable for failure or delay in performing its obligations under this agreement if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Service.
11. Suspension or Termination of this agreement
11.1 In addition to any other rights of suspension or termination under this agreement, Domainz may suspend or terminate this Service if Domainz determines in its sole discretion that:
11.1.1 any Supplied Content to be displayed on your Facebook Page violates the AUP or infringes upon any other party's rights in any manner; or
11.1.2 any Supplied Details are not true and accurate; or
11.1.4 Domainz is unable to continue offering the Service (including without limitation if Facebook prohibits Domainz from offering the Service at all or in part).
11.2 If Domainz terminates this agreement pursuant to sub-clauses 11.1.1, 11.1.2 or 11.1.3, Domainz will not refund any amounts paid by you.
11.3 Where Domainz has not yet begun provisioning the Service to you, you may cancel the Service by providing 3 days prior written notice to Domainz. Domainz will refund any amounts paid upfront by you for the Service in such circumstances.
11.4 Where Domainz has begun provisioning the Service, you may terminate this agreement and cease obtaining the Service from Domainz on 30 days' prior written notice to Domainz in accordance with the process specified by Domainz from time to time. Domainz will not refund any amounts paid upfront by you in such circumstances.
11.5 If Domainz terminates this agreement, or you terminate pursuant to clause 11.4, in addition to any other obligation under this agreement:
11.5.1 you must pay all outstanding charges (if any) to Domainz immediately;
11.5.2 Domainz may delete all data, including your Supplied Details or Supplied Content from our systems without any liability to you whatsoever.
12.1 The law in force in New Zealand governs this agreement and the transactions contemplated by this agreement.
12.2 In the event it is necessary for Domainz to enforce its rights under this agreement, you agree to pay all fees incurred by Domainz (including, but not limited to, legal fees and collection agency fees).
12.3 This agreement shall be binding upon and inure to the benefit of you, your respective successors and assigns. You may not resell any Services or assign your rights and obligations under this agreement without the prior written consent of Domainz.
12.4 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.
12.5 If any provision of this agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this agreement shall remain in full force and effect.