TERMS OF TRADE - The Social Shop Limited
This agreement is entered into between The Social Shop Limited (“we, “us”, “our” and “the Company”) and the Buyer (“You”) the Company and the Buyer are called “the parties”.
These terms and conditions take priority over any other terms and conditions exchanged between the parties. These terms and conditions take priority over other any other terms and conditions despite the fact that those terms and conditions may have a clause giving them priority over any other document or form.
This agreement is entered into between us and you. Only the parties have any rights in terms of this agreement and the rights to enforce it.
This agreement comes into force on the earliest occurring of, the acceptance of a quote issued by us, or, when we start providing products and services.
We grant you a non-exclusive license to use the products that you have asked us to create for you.
5. Payment and foreign exchange:
5.1. All prices quoted for or charged by us are in New Zealand Dollars.
5.2. Where you are based outside of New Zealand or we have agreed that you pay in foreign currency, you agree that the exchange rate for any other currency to the New Zealand Dollar will be the rate at 4:00 p.m. New Zealand time on the day before any payment is due.
5.3. We will invoice you for any products and services at the end of the month when they are provided. Payment is due on or before the 20th calendar date of the month following that in which we have invoiced you.
5.4. You agree with us that time is of the essence when it comes to the payment of any sum owing to us and that we will charge interest at the rate of 15% per annum to accrue each day until full payment is received.
6. Consumer Guarantees Act 1993:
6.1. Where you have requested our products and services for business or commercial use, you agree to contract out of the Consumer Guarantees Act 1993.
6.2. In situations where the Consumer Guarantees Act 1993 is found to apply, our liability or obligations are limited to the remedies in that act.
7.1. You warrant that:
7.2. We warrant that:
8. Moderation of online comments and social media:
8.1. Where we create and maintain a product that allows for online comments or where we create maintain a social media page or portal for you, we retain the right to moderate comments including the right to remove comments and posts that that are defamatory, that vilify any person or group of persons based on gender, status or belief or that is offensive to a reasonable person or are unlawful under New Zealand and International Law.
8.2. You agree not to claim against on account of this practice.
9. Ownership and copyright:
9.1. Where we have given you a license to use our products, we retain the copyright and ownership of all the design, architecture and source code used in the product and it cannot be copied or replicated without our permission.
9.2. Where the agreement is for the creation of a product that will be transferred to you, the ownership of the product remains with us until payment is received. Once payment is received the ownership and risk will be transferred to you subject to our rights set out in clause 9.1.
9.3. Where we have created a product that we have licensed to you and which we will manage, then the ownership of this product remains with us.
9.4. Where we have created a product for you, you agree that we can use our branding, trademark and logos for the attribution of the design and creation of the product.
9.5. Where you have taken ownership of a product, you agree to remove our branding, trademark and logos if we request this.
10.1. You agree to indemnify us for any civil claim that results from you or someone connected with you using our product to publish any material that is defamatory, vilifies any person or group of persons based on gender, status or belief or that is offensive to a reasonable person or which is pirated material or which breaches any New Zealand or International Law on terrorism.
10.2. You agree to indemnify us against any civil claim from that results from you or someone connected with you breaching the terms and conditions of set by the owner or provider of any social media site or portal.
10.3. You agree that we are not liable for any loss or damage resulting from a cyber-attack or denial of service attack or hacking of a social media service provider or a provider we use for website-hosting.
10.4. You agree that cyber-attacks, denial of service attacks and hacking can occur before the alerts and electronic countermeasures are available and so you also agree that we are not liable for any loss or damage resulting from a cyber-attack or denial of service attack or hacking of our own computers and servers when we could not have anticipated this or upgraded our protective countermeasures in time.
If any term in this agreement is held to be invalid the parties agree that the clause can be severed from the agreement and that the remaining provisions of the agreement remain binding and enforceable.
12. Waiver and indulgence:
We have the right to waive any term that benefits us in this agreement. Where we provide a waiver or an indulgence it is only for that single instance and is not given on an ongoing basis.
13. Termination of this agreement:
13.1. Clause 9.1 continues to apply after this agreement is terminated or otherwise comes to an end.
13.2. Where we provide products and maintain them on an ongoing basis this agreement can be terminated by either party on 3 months’ notice.
13.3. You agree that we have the right to terminate the agreement if any of the material terms and conditions in this agreement are breached. You also agree that where we terminate this agreement for breach, that we can take any product offline, and that you will not claim against us for this practice.
13.4. This agreement also terminates when a natural person is adjudicated bankrupt or where any juristic person or entity is put into liquidation, has receivers appointed or is put into administration.
14. Choice of law and legal proceedings:
14.1. The Parties agree that the Laws of New Zealand apply to this agreement.
14.2. The High Court in Auckland and the District Court in Pukekohe are the Courts having jurisdiction over this agreement, provided that the Company can choose to begin proceedings in another jurisdiction closer to the Buyer if that is suitable.
14.3. If we need to employ a collections agency, you agree to meet their fee for recovering payment. If it is necessary to initiate legal proceedings you agree to pay our legal costs on a full indemnity basis.
Unless the context specifically indicates otherwise:
“Cyber-attack” is an attack by a person or persons that is intended to damage, destroy, disable a computer or to steal confidential or private data;
“Hacker” includes a person involved in hacking or a data packet designed to aid a person involved hacking to carry out his, her or its objective;
“Hacking” includes the unauthorised intrusion into a computer, computer server, website, social media account with the intention to capture of data that would normally or legally be considered private, destroy equipment or cause serious damage to the thing in question;
“Juristic person or entity” includes a charitable trust incorporated as a board, company, firm, incorporated society, partnership, sole trader, trust, an entity created by statute;
“Pirated content” includes digital pictures in any format, captured video frame pictures and video content in any format that has been produced or reproduced without the consent of the original creator or the legal owner of the original material;
“Product” includes database design, code or architecture; digital media; website design or architecture, and computer source code;
“Social media” includes any digital platform, digital service or online portal where an individual member can post any message, status update or exchange information with any other individual or all members of the service in a continuous data-stream;
“Social media post” includes the sharing or the repeating of a social media post posted by another person;
“Troll”, “trolls” and “trolling” includes a person or an AI bot that leaves social media posts that are abusive or breach objective standards of decency, are illegal, unlawful or defamatory, or incite hatred against a person or group of persons because of gender, race or belief or which would be offensive to a reasonable person.
Applicable to any entity that is not an individual (except for professional trustees or persons providing professional services to a buyer).
I guarantee the performance by the Buyer of any obligation in the agreement.