Terms and Conditions

Introduction

Welcome to Bizink!  We’re excited to have you here but before you start using Bizink’s services, we do need you to look through and accept these terms. We’ve done our best to cover everything, so it’s clear what we expect from you and what you can expect from us.

These are your legal rights and obligations, so please do read everything. If you can’t agree to our terms, then you can’t use our services.

If you still have questions or comments after you’ve read these terms, please email us. We’d love to help.

Last updated on 27 August 2021.

 

BIZINK TERMS OF USE

1. Application of Terms


1.1
 These Terms apply to your use of the Services (as that term is defined below).
By clicking
I agree and accessing and using the Services:
a) you agree to these Terms; and
b)
where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorized to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.

 

1.2 If you do not agree to these Terms, you are not authorized to access and use the Services, and you  must immediately stop doing so.

 

2. Changes


2.1 We may change these Terms at any time by notifying you of the change by email or by posting a notice on the Website.  Unless stated otherwise, any change takes effect from the date set out in the notice.  You are responsible for ensuring you are familiar with the latest Terms.  By continuing to access and use the Services from the date on which the Terms are changed, you agree to be bound by the changed Terms.

 

2.2 These Terms were last updated on 27 August 2021

 

3. Interpretation

In these Terms:

Bizink Content means any information, content, software and resources owned by us (and our licensors) that we make available to you when you use the Services, including WordPress themes and plugins.

Bizink Software means the software owned by us (and our licensors) that is used to provide the Services. 

Client Content means all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Services, including marketing content we create specifically for you, and excluding any Bizink Content.

Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Services.  Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the Bizink Software.  Your Confidential Information includes the Client Content.

Fees means the applicable fees set out on our Website or as agreed otherwise in writing between you and us, as may be updated from time to time in accordance with clause 7.4.

Force Majeure means an event that is beyond the reasonable control of a party, excluding:

  • an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
  • a lack of funds for any reason.

including and similar words do not imply any limit.

Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.  Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.

Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

a party includes that party’s permitted assigns.

Permitted Users means your personnel who are authorized to access and use the Services on your behalf in accordance with clause 5.3.

a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.

personal information means information about an identifiable, living person.

personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.

Services means the products and services having the core functionality described on the Website, as the Website is updated from time to time.

Start Date means the date that you set up an account.  

Terms means these terms titled SaaS terms of use.

Underlying Systems means the Bizink Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.

We, us or our means Bizink Group Limited, company number 4081178.

Website means the internet site at bizinkonline.com, or such other site notified to you by us.

Year means a 12-month period starting on the Start Date or the anniversary of that date.

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

Words in the singular include the plural and vice versa.

A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.

 

4. Provision of Services

4.1 We must use reasonable efforts to provide the Services:

      a) in accordance with these Terms and New Zealand law;

      b) exercising reasonable care, skill and diligence; and

      c) using suitably skilled, experienced and qualified personnel


4.2
Our provision of the Services to you is non-exclusive.  Nothing in these Terms prevents us from providing the Services to any other person.


4.3
Subject to clause 4.4, we must use reasonable efforts to ensure the Services are available on a 24/7 basis.  However, it is possible that on occasion the Services may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure.  We must use reasonable efforts to publish on the Website advance details of any unavailability.


4.4
 Through the use of web services and APIs, the Services interoperate with a range of third party service features.  We do not make any warranty or representation on the availability of those features.  Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you.  To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.

 

5. Your Obligations

5.1 You and your personnel must:

a) use the Services in accordance with these Terms solely for:

       i)your own internal business purposes; and

       ii) lawful purposes (including complying with the Unsolicited Electronic Messages Act 2007); and

b) not resell or make available the Services to any third party, or otherwise commercially exploit the Services.


5.2
When accessing the Services, you and your personnel must:

a) not impersonate another person or misrepresent authorization to act on behalf of others or us;

b) correctly identify the sender of all electronic transmissions;

c) not attempt to undermine the security or integrity of the Underlying Systems; 

d) not use, or misuse, the  in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Services;

e) not attempt to view, access or copy any material or data other than:

          i) that which you are authorized to access; and

          ii) to the extent necessary for you to use the Services in accordance with these Terms; and

f) neither use the Services in a manner, nor transmit, input or store any Client Content, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.

 

5.3 Without limiting clause 5.2, no individual other than a Permitted User may access or use the Services.  You may authorise any member of your personnel to be a Permitted User, in which case you must provide us with any information that we reasonably require in relation to the Permitted User.  You must procure each Permitted User’s compliance with clauses 5.1 and 5.2 and any other reasonable condition notified by us to you.

 

5.4 A breach of any of these Terms by your personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of these Terms by you.

 

5.5 You are responsible for procuring all licences, authorizations and consents required for you and your personnel to use the Services, including to use, store and input Client Content into, and process and distribute Client Content through, the Services.

 

6. Data

6.1 You acknowledge that:

   a) we may require access to the Client Content to exercise our rights and perform our obligations under these Terms; and

  b) to the extent that this is necessary but subject to clause 9, we may authorize a member or members of our personnel and subcontractors to access the Client Content for this purpose.

 

6.2 You must arrange all consents and approvals that are necessary for us to access the Client Content as described in clause 6.1.

 

6.3 You acknowledge and agree that:

a) we may:

     i) use Client Content and information about your and your end users’ use of the Services to generate anonymized and aggregated statistical and analytical data (Analytical Data); 

    ii) use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and

    iii) supply Analytical Data to third parties; 

b) our rights under clause 6.3a above will survive termination of expiry of the Agreement; and 

c) title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.

 

6.4 You acknowledge and agree that to the extent Client Content contains personal information, in collecting, holding and processing that information through the Services, we are acting as your agent for the purposes of the Privacy Act 2020 and any other applicable privacy law.  You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.

 

6.5 While we will take standard industry measures to back up all Client Content stored using the, you agree to keep a separate back-up copy of all Client Content uploaded by you onto the Services.

 

6.6 You agree that we may store Client Content (including any personal information) in secure servers including in in United States of America and may access that Client Content (including any personal information) in the United States of America and New Zealand from time to time.

 

6.7 You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Client Content infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Client Content is Objectionable, incorrect or misleading.

 

7. Fees

7.1 You must pay us the Fees, electronically in cleared funds without setoff or deduction, in accordance with the payment terms set out on our Fees page (subject to any discount agreed with us, or any coupon authorized by us).  If there are no payment terms on the Fees page:

     a) you must may any Fees that are set-up fees in advance of receiving our Services; and 

     b) we will debit your nominated credit card or bank account monthly in advance for Fees due for Services to be provided in the month following.

 

7.2 The Fees exclude GST (if any), which you must pay on taxable supplies if you are based in New Zealand.

 

7.3 We may charge interest on overdue amounts.  Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or, if our primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.

 

7.4 We may increase the Fees by giving at least 30 days’ notice.  If you do not wish to pay the increased Fees, you may terminate these Terms and your right to access and use the Services on no less than 10 days’ notice, provided the notice is received by us before the effective date of the Fee increase.  If you do not terminate these Terms and your right to access and use the Services in accordance with this clause, you are deemed to have accepted the increased Fees.

 

8. Intellectual Property

8.1 The following clauses apply to your use of our (and our licensors’) Intellectual Property:

       a) Subject to clause 8.2, title to, and all Intellectual Property Rights in, the Services, the Bizink Content, the Website, and all Underlying Systems is and remains our property (and our licensors’ property).  You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.  We grant you a worldwide, non-exclusive, fully paid up, non-transferable licence for the duration of these Terms, to use, store, make available and communicate the Bizink Content in connection with your access to and use of the Services.

       b) Without limiting clause 8.1a, if you have downloaded and published any Bizink Content, we grant you a worldwide, non-exclusive, fully paid up, non-transferable, perpetual licence to use, store, and make available that Bizink Content solely for your internal business purposes.

       c) Despite anything to the contrary in these Terms, your right to access and use of Bizink Content that incorporates WordPress themes and plugins will cease on termination of these Terms.  Client Content that you make available through our Services that relies on WordPress themes or plugins will be removed on termination.

       d) Despite clause 8.1a, we may make some Bizink Content available to you on separate licence terms, including open source licence terms.  If so, your use of that Bizink Content will be subject to your acceptance of those licence terms when you download the relevant Bizink Content.

 

8.2 Title to, and all Intellectual Property Rights in, the Client Content (as between the parties) remains your property.  You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Client Content for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with these Terms.

 

8.3 To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.

 

8.4 If you provide us with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):

      a) all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and

      b) we may use or disclose the feedback for any purpose.

 

8.5 You acknowledge that the Services may link to third party websites or feeds that are connected or relevant to the Services.  Any link from the Services does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators.  To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.

 

9. Confidentiality

9.1 Each party must, unless it has the prior written consent of the other party:

      a) keep confidential at all times the Confidential Information of the other party; 

      b) effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorized access or use; and

      c) disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 9.1a and 9.1b.

9.2 The obligation of confidentiality in clause 9.1 does not apply to any disclosure or use of Confidential Information:

      a) for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;

      b) required by law (including under the rules of any stock exchange);

      c) which is publicly available through no fault of the recipient of the Confidential Information or its personnel;

      d) which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or

      e) by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 9.

 

10. Warranties

10.1 Each party warrants that it has full power and authority to enter into, and perform its obligations under, these Terms.

 

10.2 To the maximum extent permitted by law:

      a) our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to NZD1,000.00; 

      b) we make no representation concerning the quality of the Services and do not promise that the Services will:

             i) meet your requirements or be suitable for a particular purpose, including that the use of the Services will fulfil or meet any statutory role or responsibility you may have; or 

            ii) be secure, free of viruses or other harmful code, uninterrupted or error free; and

       c) we make no representation concerning the Bizink Content, and do not promise that the Bizink Content will be accurate, up to date, or error free.  You access and use the Bizink Content at your own risk.  We are not liable or responsible to you or any other person for any claim, damage, loss, liability and cost under or in connection the Bizink Content, or your use of the Bizink Content.  This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.

 

10.3 You agree and represent that you are acquiring the Services, and accepting these Terms, for the purpose of trade.  The parties agree that:

       a) to the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Services or these Terms; and

       b) it is fair and reasonable that the parties are bound by this clause 10.3.

 

10.4 Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms.  However, our liability for any breach of that condition or warranty is limited, at our option, to:

       a) supplying the Services again; and/or

       b) paying the costs of having the Services supplied again.

 

11. Liability

11.1 To the maximum extent permitted by law and only to the extent clause 10.2 does not apply, our maximum aggregate liability under or in connection with these Terms or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by you relating to the Services in the previous Year (which in the first Year is deemed to be the total Fees paid by you from the Start Date to the date of the first event giving rise to liability).  The cap in this clause 11.1 includes the cap set out in clause 10.2a.

11.2 Neither party is liable to the other under or in connection with these Terms or the Services for any: 

       a) loss of profit, revenue, savings, business, use, data (including Client Content), and/or goodwill; or

       b) consequential, indirect, incidental or special damage or loss of any kind.

 

11.3 Clauses 11.1 and 11.2 do not apply to limit our liability under or in connection with these Terms for:

       a) personal injury or death;

       b) fraud or willful misconduct; or 

       c) a breach of clause 9.

 

11.4 Clause 11.2 does not apply to limit your liability:

       a) to pay the Fees;

       b) under the indemnity in clause 6.7; or

       c) for those matters stated in clause 11.3a to 11.3c.

 

11.5 Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.

 

11.6 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Services.

 

Term, Termination and Suspension

12.1 Unless terminated under this clause 12, these Terms and your right to access and use the Services:

       a) starts on the Start Date; and

       b) continues until a party gives at least 30 days’ notice that these Terms and your access to and use of the Services will terminate on the expiry of that notice.

 

12.2 Subject to clause 7.4, if the subscription option you have selected includes a minimum initial term, the earliest date for termination under clause 12.1 will be the expiry of that initial term.

 

12.3 Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use the Services if the other party:

       a) breaches any material provision of these Terms and the breach is not:

              i)remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or

             ii) capable of being remedied; or

       b) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.

 

12.4 You may terminate these Terms and your right to access and use the Services in accordance with clause 7.4.

 

12.5 Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.

 

12.6 On termination of these Terms, you must:

       a) pay all Fees for the provision of the Services prior to that termination;

       b) immediately cease using the Services and any Bizink Content.

 

12.7 No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.

 

12.8 Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of these Terms but subject to clause 12.9, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control (and to avoid doubt, you must return or destroy (at our option) the Bizink Content).

 

12.9 At any time prior to one month after the date of termination, you may request: 

       a) a copy of any Client Content stored using the Services, provided that you pay our reasonable costs of providing that copy.  On receipt of that request, we must provide a copy of the Client Content in a common electronic form.  We do not warrant that the format of the Client Content will be compatible with any software; and/or

       b) deletion of the Client Content stored using the Services, in which case we must use reasonable efforts to promptly delete that Client Content.  

To avoid doubt, we are not required to comply with clause 12.9a to the extent that you have previously requested deletion of the Client Content.

 

12.10 Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Services and/or delete, edit or remove the relevant Client Content if we consider that you or any of your personnel have:

       a) undermined, or attempted to undermine, the security or integrity of the Services or any Underlying Systems;

       b) used, or attempted to use, the Services:

              i) for improper purposes; or

              ii) in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Services; 

       c) transmitted, inputted or stored any Client Content that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or

       d) otherwise materially breached these Terms.

 

13. General

13.1 Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.

 

13.2 No person other than you and us has any right to a benefit under, or to enforce, these Terms.

 

13.3 For us to waive a right under these Terms, that waiver must be in writing and signed by us.

 

13.4 Subject to clause 6.4, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.

 

13.5 If we need to contact you, we may do so by email or by posting a notice on the Website.  You agree that this satisfies all legal requirements in relation to written communications.  You may give notice to us under or in connection with these Terms by emailing hello@bizinkonline.com.

 

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

 

13.7 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 6.7, 8, 9, 11, 12.5 to 12.9 and 13.6, continue in force.

 

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

 

13.9 Subject to clauses 2.1 and 7.4, any variation to these Terms must be in writing and signed by both parties.

 

13.10 These Terms set out everything agreed by the parties relating to the Services, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date.  The parties have not relied on any representation, warranty or agreement relating to the Services that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date.  Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 13.10.

 

13.11 You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld.  You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.