Licence Terms
Sellfactor Licence Agreement
This license is a legal agreement between the Customer and Niche Tourism Design Ltd for the use of a Fox-Hat System Site (the "Site").
PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE SITES. BY USING THE SITES YOU ARE AGREEING TO BE BOUND BY THE FOLLOWING TERMS OF USE. IF YOU CHOOSE NOT TO BE BOUND BY THE FOLLOWING TERMS OF USE THEN FOX-HAT SYSTEM DOES NOT GRANT YOU THE RIGHT TO USE THE SITES AND YOU MUST NOT USE THIS SITES.
Revised on: 18th January, 2008.
- Definitions
"Sellfactor Service" - the name of the website database and web pages which make up the Licensor's Content Management system and which are the property of the Licensor.
"You" the owner of the content
"Content"all data (text copy, images, audio files or video files) owned by You and published to the Licensor website database and web pages.
"Fox Hat System Technology" the operating technology and functionality of the Licensor Sellfactor System web pages, style sheets, logic code and database
"Sellfactor Site" the website service provided to You via online (http access) for publishing of Your Content.
"Licence" the right to access a single version of the Sellfactor Site and the right to publish Content via the Account on the Service.
"Licensor" Niche Tourism Design Limited
"Licensor's Material" all data (text copy, images, audio files or video files) Published to the Licensor website database and web pages by the Licensor or affiliated parties. - Grant of Licence
The Licensor hereby grants to you, and you hereby accept, subject to the terms and conditions set forth in this Agreement, a non-exclusive, non-assignable, non-sublicensable, limited licence to use the Fox-Hat Service as set forth in this Agreement. - Licence Term
In consideration for the grant of the licence and the use of the Service, You agree to sign up to a minimum 12 month licence term for access and management of an Account to use a Sellfactor Site:
The term of this Agreement shall commence at the time you receive the Sellfactor Site and, provided you are paid up to date and are not otherwise in default under this Agreement, shall continue until terminated by either party under clause 19 of this Agreement.
Upon expiry of the term this licence shall continue on a monthly basis with the Licensee paying monthly licence fees until this Agreement is terminated in accordance with clause 19. - Licence Fees
You shall pay the Licensor the following fees as set out in the assigned above contract - Payment
(a) Initial Payment of the Sellfactor Set Up Fee shall be made by You upon signing of this contract..
(b) Monthly Licence Payments
If You choose to make ongoing payments for the Single Use Service Licence by monthly payments You shall use one of the following automated payment methods:
I Reoccurring credit card payment
II Reoccurring bank transfer payment
(c) Yearly Licence Payments
If You choose to make ongoing payments for the Single Use Service Licence by yearly payments You shall use one of the following payment methods:
I Credit card payment
II Bank transfer payment
III Cheque payment
(d) Penalty Payments
In the event any overdue amount owed by you is not paid following ten (10) days of falling due, then in addition to any other amount due, the Licensor may impose and you shall pay a late payment charge at the rate of one percent (1%) per month on any overdue amount. - Licensor"s Obligations
The Licensor shall: - Provide direct technical support for the Service to ensure ongoing maintenance and operation as agreed up to 5 hrs of technical support / year . After this any additional hours required for support will be charged out at the specified hourly charge out rate.
- Your Obligations
You shall: - Pay all licence fees when they are due and payable.
- Provide true, accurate, current and complete information as prompted by the Sellfactor Site's registration form.
- Use the Sellfactor Site provided and the Content contained within it for commercial use only.
- Not use the Service for any unauthorised, improper or illegal purposes.
- Not take any action that imposes an unreasonably large burden on the Service.
- Comply with all standards used across the Online Gallery site. This includes all categories and sections to be used for their correct purpose. Contact information such as phone, fax and email must be placed only in the spaces designated for this purpose.
- Not modify, copy, duplicate, reproduce, licence or sublicence the Sellfactor Site, or transfer or convey the Sellfactor Site or any right therein to any other person or entity in New Zealand and worldwide without the prior written consent of the Licensor.
- Maintain total confidentiality of your Account ID and password.
- Notify the Licensor immediately of any unauthorised use of the Account or any other breach of security.
- Not use anyone else's account at any time, without the permission of the account holder.
- Not use, copy, reproduce, publish, store in a retrieval system, alter, transmit in any form or by any means in whole or in part (except where by law such use cannot be prohibited) any part of the Sellfactor Site without the prior written approval of the Licensor.
- Not upload any third party content to Sellfactor without having first obtained consent to do so from the owner of such content.
- Not to undertake, cause, permit or authorise the modification, duplication, creation of derivative works, translation, reverse engineering or hacking of the Sellfactor Site, or any part of it.
- Confidentiality
Both parties acknowledge and agree that the terms and conditions of this agreement shall remain confidential between the parties both during the term of this Agreement and after its expiration or termination. - Indemnity
You shall indemnify and hold the Licensor, and its officers employees and agents harmless from any claim or demand, including legal fees, made by any third party due to or arising out of your Content, use of the Service, connection to the Service, violation of these Terms and Conditions, or violation of any rights of another person.
The Licensor shall not be liable for any direct, indirect or consequential loss or damage suffered by you arising from your use of the Sellfactor Site, whether or not such damages were disclosed to, or reasonably foreseeable.
In no event shall the Licensor's liability hereunder exceed the amount of licence fees paid by you, regardless of whether your claim is based on contract, tort, strict liability, product liability or otherwise. - Search Engine Optimisation
The Licensor cannot guarantee top position rankings on all search engines due to the different mechanisms each search engine applies. - Assignment
You shall not assign this Agreement nor any of your interest in this Agreement to any party without the prior express written approval of the Licensor. Any assignment is solely at the discretion of the Licensor.
In the event that this Agreement is assigned with the consent of the Licensor you shall immediately destroy all account access, management and licence documentation relating to the Sellfactor Site. Transferring the Agreement terminates this Agreement with the original Licensee. - Account Management
When You register for an account You will be allocated an Account ID and password to access an account. You shall be entirely responsible for maintaining the confidentiality of the Account ID and password. Furthermore, you shall be entirely responsible for any and all activities that occur under the Account.
If you do not wish to use the Sellfactor Site you shall immediately destroy all account access, management and licence documentation relating to the Sellfactor Site and your account will be terminated. - Security
In order to ensure the security of the sites, including the Sellfactor server and any information stored on it, all accesses to the Sellfactor server are logged. The information that is logged includes, but may not be limited to: the date and time of access, Sellfactor ID used, the sections of the Sellfactor accessed, Internet IP address and the web browser used to access the Sellfactor Site.
The Licensor shall not be liable for any loss that may result from the use of your password or account either with or without your authority or knowledge. However, the Licensor reserves the right to claim against you for any and all losses incurred by the Licensor, whether direct or consequential, resulting from the use of your password or account, either with or without your authority or knowledge. Any attempts to undermine the security of the Sellfactor Site will result in immediate suspension of all the Site. - Intellectual Property
The Content published within the Site (including images, graphics and copy) belong to You and are copyright to You.
The trademarks appearing on the Sites, unless otherwise stated, are the property of Fox-Hat Limited and the Licensor. Nothing contained on the Sites should be construed as granting any licence or right of use of any trademark displayed on the Sites without the express written permission of the Licensor. - Use of Content
The Licensor does not claim ownership, control or endorse the Content, messages or information found within the Site and, therefore specifically disclaims any liability with regard to the any actions resulting from participation in any Client Service.
The Licensor has no obligation to monitor the Site. However, the Licensor reserves the right to review Content posted to the Site and to remove any Content in its sole discretion. If Content is edited or removed, You will be notified via email. The Licensor reserves the right at all times to disclose any information as it deems necessary to satisfy any applicable law, regulation, legal process or to edit, refuse to post or to remove any information or materials, in whole or in part, in its sole discretion.
Content uploaded to the Site may be subject to posting limitations (such as the number of available galleries or file size of an image) and you are responsible for adhering to such limitations if you download the materials. - Third Party Links
The Sellfactor Site may contain links to third party website ("Linked Sites"). The Linked Sites are not under the control of Site and the Licensor is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. The Licensor is not responsible for webcasting or any other form of transmission received from any Linked Site nor is the Licensor responsible if the Linked Site is not working appropriately.
The inclusion of any link does by a Member does not imply endorsement by the Licensor of the Linked site or any association with its operators. You are responsible for viewing and abiding by the privacy statements and terms of use posted at the Linked Sites.
Any dealings with third parties, including advertisers included within the Sellfactor website are solely between you and the advertiser or other third party. The Licensor shall not be responsible or liable for any part of any such dealings or promotions. - Disputes
- Where any question, dispute or difference ("Difference") arises between the parties concerning or in any way arising out of this agreement or the performance of either party of this agreement, or of the circumstances, representations, and conduct giving rise thereto, no party may commence any court or arbitration proceedings relating to any Difference unless that party has complied with the procedures set out in this clause.
- The party initiating the Difference ("the First Party") must provide written notice of the same to the Other Party ("the Other Party") and nominate in that notice the First Party's representative for the negotiations. The other party must within seven (7) days give written notice to the First Party naming the Other Party's representative for the negotiations. Each representative nominated will have authority to settle or resolve the Difference.
- If the parties are unable to resolve the Difference by discussion and negotiation within seven (7) days of receipt of the written notice from the Other Party, then the parties must immediately refer the Difference to mediation.
- The mediation must be conducted in terms of the LEADR New Zealand Inc Standard Mediation Agreement. The mediation must be conducted by a mediator and at a fee agreed by the parties. Failing agreement by the parties as to the appointment of a mediator within seven (7) days of the reference to mediation as set out above, the mediator will be selected and his/her fee determined by the Chair for the time being of LEADR New Zealand Inc.
- If the Difference remains unresolved after the mediation, then the Difference must be submitted to the arbitration of a single arbitrator agreed on between the parties, or in default of agreement to be nominated by the President of the New Zealand Law Society. The arbitration will be conducted in accordance with the Arbitration Act 1996. The parties reserve the right to appeal to the High Court on any question of law arising out of an award.
- Nothing in this section will prevent any party from taking immediate steps to seek urgent interlocutory relief before an appropriate court.
- Termination
- Either party may terminate this Agreement at any time by providing thirty (30) days notice in writing to the other.
- The Licensor reserves the right to terminate this Agreement without notice in the event of default by you.
- Upon termination the Licensor has the right to receive full payment from You for any fees outstanding on your Sellfactor member account as listed in Clause 4 of this Licence Agreement. You agree to pay any outstanding fees within 20 days of receiving invoice.
- Upon a termination request within the 12 month contract period and You as Licensee have a monthly licence payment term, the Licensor has the right to receive full payment from You of all fees outstanding on your Sellfactor Site Account until the term of the 12 month contract period.
- Failure of payment by You on any outstanding fees will be accrue interest charges on your Sellfactor member account as listed in Clause 5 (e).
- Variation of Terms
The Licensor may vary these terms of use at any time. You are responsible for regularly reviewing these terms and conditions and additional terms. Your continued use of the Sellfactor website/Services constitutes your agreement to all such terms and conditions. - Modifications to the Service
The Licensor in its sole discretion may provide any new, corrected or enhanced version of the Sellfactor Site at any time. Such enhancement may include modifications to the Service which increase the speed, efficiency or ease of use of the Service, or add additional capabilities or functionality to the Service. The Licensor accepts no liability for any direct or consequential loss or damage incurred by you resulting from such modifications.
The Licensor reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that the Licensor shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. Normal charges continue to apply during any suspension or restriction. - No Partnership
You agree that no joint venture, partnership, employment, or agency relationship exists between you and the Licensor as a result of this agreement or use of the Licensor Services. - Entire Agreement
This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties. - Severability
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included. - Headings
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. - Governing Law
This agreement is governed by the laws of New Zealand. You irrevocably submit to the exclusive jurisdiction of the courts of New Zealand. - Notices
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.
ADDRESSES FOR NOTICES:
Licensor: NICHE DESIGN LIMITED, P.O. Box 248, Queenstown 9197, New Zealand
Licensee: Licensee Name, Address, City Post Code, Country - Privacy
The Licensor is committed to respecting the privacy and confidentiality of your personal information. However you specifically agree and acknowledge that the Licensor reserves the right to disclose any personal information about you or your use of the Sellfactor Site, including its contents, without your prior permission if the Licensor, acting reasonably, believes that such action is necessary to:
(1) conform to legal requirements or comply with legal process;
(2) protect and defend the rights or property of the Licensor;
(3) enforce the terms of this Agreement; or
(4) act to protect the interests of other users of the Sellfactor Site. - Disclaimer
The Licensor accepts no liability for any loss, damage or consequence, whether caused by negligence or not, if a web server does not function resulting in the loss of emails and website information.
The Licensor accepts no liability for any loss, damage or consequence, whether caused by negligence or not, resulting directly or indirectly from the use of any email or email attachments / files.
The Licensor accepts no liability for any loss, damage or consequence, whether caused by negligence or not, resulting directly or indirectly from any dealings with the Site.
The information, and services included in or available through Sellfactor may include inaccuracies or typographical errors. Changes are periodically made to Sellfactor and to the information therein. You specifically agree that the Licensor shall not be responsible for unauthorised access to or alteration of the Site Content, any material or data sent or received or not sent or received through the Sellfactor Site.
You specifically agree that the Licensor is not responsible or liable for any threatening, defamatory, obscene, offensive or illegal content or conduct of any other party or any infringement of another's rights, including intellectual property rights. You specifically agree that the Licensor is not responsible for any Content sent using and/or included in the Sellfactor Site by any third party.
In no event shall the Licensor and / or its suppliers be liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of the the Site, with the delay or inability to use the the Site , the provision of or failure to provide services, or for any information, software, products, services and related graphics obtained through the the Site, or otherwise arising out of the use, of the the Site, whether based on contract, tort, negligence, strict liability or otherwise, even if Sellfactor limited or any of its suppliers has been advised of the possibility of damages.
The Licensor and/or its respective suppliers make no warranty regarding the quality, performance, fitness for any particular purpose, reliability, availability, timeliness, security, lack of viruses or other harmful components and accuracy of the information, services and related graphics contained within Sellfactor for any purpose. All such information, products, services and related graphics are provided "as is" without warranty of any kind.
If you are dissatisfied with any portion of the the Site, or with any of these terms of use, your sole and exclusive remedy is to discontinue using the the Site. You agree that the liability of the Licensor, if any, arising out of any legal claim (whether in contract, tort or otherwise) in any way connected with the Service or the content of the Service shall in no way exceed the amount that you paid for the use of the Sellfactor Site.
You acknowledge that you are using the Service for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply to our provision of the Service to you.
E&OE
