1. ACCEPTANCE OF TERMS
1.1 Acceptance of Terms: These Terms apply to the Customer’s use of the Service (as that term is defined below). By accessing and using the Service:
(a) the Customer agrees to these Terms; and
(b) where their access and use is on behalf of another person (e.g. a company), they confirm that they are authorised 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 No Access: If the Customer does not agree to these Terms, they are not authorised to access and use the Service, and they must immediately stop doing so.
2.1 Definitions: In these Terms, the following terms have the stated meaning:
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. Stickybeak’s Confidential Information includes Intellectual Property owned by Stickybeak (or its licensors, if any), including the Stickybeak Software. The Customer’s Confidential Information includes the Data.
Customer means the party agreeing to these Terms on the Website.
Data means all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Customer that is stored using, or inputted into, the Services.
Fees means applicable fees set out on our pricing page on the Website or as otherwise agreed in writing between the Customer and Stickybeak, as may be updated from time to time in accordance with these Terms.
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
(a) an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
(b) a lack of funds for any reason.
Intellectual Property Rights means includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventionsP3369_26427_004.docx(including patents), registered and unregistered trademarks 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 means includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
Permitted User means any person who is either an Admin user or an Editor on the Stickybeak platform.
Personal Information means has the meaning given in the Privacy Act 1993.
Service means the service having the core functionality described on the Website, as the Website is updated from time to time.
Start Date means the date that you first access or use the Service.
Stickybeak means Stickybeak Limited.
Stickybeak Platform means the software platform owned by Stickybeak that allows people to create tests to gather customer feedback
Underlying Systems means the Stickybeak Software, IT solutions, systems and networks (including software and hardware) used to provide the Service, including any third party solutions, systems and networks.
Website means the internet site at www.stickybeak.co, or such other site notified to the Customer by Stickybeak.
3.1 General: Stickybeak 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.
3.2 Non-exclusive: Stickybeak’s provision of the Services to the Customer is non-exclusive. Nothing in these Terms prevents Stickybeak from providing the Services to any other
(a) Stickybeak will use reasonable efforts to ensure the Service is available on a 24/7 basis. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. Stickybeak will use reasonable efforts to publish on the Website and/or notify you by email advance details of any unavailability.
(b) Through the use of web services and APIs, the Service interoperates with a range of third party service features. Stickybeak does 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, Stickybeak may cease to make available that feature to the Customer. To avoid doubt, if Stickybeak exercises its right to cease the availability of a third party feature, the
Customer is not entitled to any refund, discount or other compensation.
3.4 Additional Related Services:
(a) Stickybeak may, from time to time, make available additional services to supplement the Service.
4. CUSTOMER OBLIGATIONS
4.1 General use: The Customer and its personnel must:
(a) use the Services in accordance with these Terms solely for:
(i) the Customer’s own internal business purposes to conduct tests; 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.
4.2 Access conditions: When accessing the Service, the Customer and its personnel must:
(a) not impersonate another person or misrepresent authorisation to act on behalf of others or Stickybeak;
(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 Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service;
(e) not attempt to view, access or copy any material or data other than:
(i) that which the Customer is authorised to access; and
(ii) to the extent necessary for the Customer and its personnel to use the Service in accordance with these Terms;
(f) neither use the Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and
(a) Without limiting clause 4.2, no individual other than a Permitted User may access or use the Service.
(b) The Customer may authorise any member of its personnel to be a Permitted User, in which case the Customer will provide Stickybeak with the Permitted User’s name and other information that Stickybeak reasonably requires in relation to the Permitted User.
(c) The Customer must procure each Permitted User’s compliance with clauses 4.1 and 5.2 and any other reasonable condition notified by Stickybeak to the Customer.
(d) A breach of any of these Terms by the Customer’s personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of the Terms by the Customer.4.4 Authorisations: The Customer is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.
5.1 Stickybeak access to Data:
(a) The Customer acknowledges that:
(i) Stickybeak may require access to the Data to exercise its rights and perform its obligations under these Terms; and
(ii) to the extent that this is necessary but subject to clause 8, Stickybeak may authorise a member or members of its personnel to access the Data for this purpose.
(b) The Customer must arrange all consents and approvals that are necessary for Stickybeak to access the Data as described in clause 5.1(a).
5.2 Analytical Data: The Customer acknowledges and agrees that:
(a) Stickybeak may:
(i) use Data and information about the Customer’s and the Customer’s end users’ use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
(ii) use Analytical Data for Stickybeak’s 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) Stickybeak’s rights under clause 5.2(a) above will survive termination or expiry of these Terms; and
(c) title to, and all Intellectual Property Rights in, Analytical Data is and remains Stickybeak’s property.
(a) The Customer acknowledges and agrees that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, Stickybeak is acting as an agent of the Customer for the purposes of the Privacy Act 1993 and any other applicable privacy law.
(b) The Customer must obtain all necessary consents from the relevant individual to enable Stickybeak to collect, use, hold and process that information in accordance with these Terms.
5.4 Backups of Data: While Stickybeak will take standard industry measures to back up all Data stored using the Services, the Customer agrees to keep a separate back-up copy of all Data uploaded by it onto the Service.
5.5 International storage of Data: The Customer agrees that Stickybeak may store Data (including any Personal Information) in secure servers in overseas territory/ies and may access that Data (including any Personal Information) in overseas territory/ies and New
Zealand from time to time.
5.6 Indemnity: The Customer indemnifies Stickybeak against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by Stickybeak’s solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data
infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.
6.1 Fees: The Customer must pay to Stickybeak the Fees.
6.2 Invoicing and payment:
(a) Stickybeak will provide the Customer with valid GST tax invoices prior to the due date for payment unless the Customer is paying via Stripe on the Stickybeak platform.
(b) The Fees exclude GST, which the Customer must pay on taxable supplies.
(c) The Customer must pay the Fees:
(i) in accordance with the payment terms set out on the pricing page on the Website or as otherwise agreed in writing between the Customer and Stickybeak, as may be updated from time to time in accordance with these Terms.
(ii) electronically in cleared funds without any set off or deduction.
6.3 Overdue amounts: Stickybeak 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 Stickybeak’s primary trading bank as at the due date (or, if Stickybeak’s 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.
6.4 Increases: Stickybeak may increase the Fees by giving at least 30 days’ notice. If the Customer does not wish to pay the increased Fees, it may terminate these Terms on no less than 10 days’ notice, provided the notice is received by Stickybeak before the effective date of the Fee increase. If the Customer does not terminate the Agreement in accordance with this clause, it is deemed to have accepted the increased Fees.
7. INTELLECTUAL PROPERTY
7.1 Ownership of Intellectual Property: Subject to clause 7.2 title to, and all Intellectual Property Rights in, the Services, the Website, and all Underlying Systems is and remains the property of Stickybeak (and its licensors). The Customer must not contest or dispute
that ownership, or the validity of those Intellectual Property Rights.
7.2 Ownership of Data: Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains the property of the Customer. The Customer grants Stickybeak a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with these Terms.
7.3 Know-how: To the extent not owned by Stickybeak, the Customer grants Stickybeak a royalty-free, transferable, irrevocable and perpetual licence to use for Stickybeak’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by Stickybeak in the provision of the Services.
7.4 Feedback: If the Customer provides Stickybeak 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 Stickybeak; and
(b) Stickybeak may use or disclose the feedback for any purpose.
7.5 Marketing: The Customer grants Stickybeak a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use the Customer’s name and trade marks (if any) for marketing and PR purposes to identify the Customer as a user of the Stickybeak Platform, including without limitation, by placing the Customer’s company logo on the Website and other marketing materials.
7.6 Third party sites and material: The Customer acknowledges that the Service may link to third party websites or feeds that are connected or relevant to the Service. Any link from the Service does not imply any Stickybeak endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, Stickybeak excludes all responsibility or liability for those websites or feeds.
8.1 Security: 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 unauthorised 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, the provisions of clauses 8.1(a) and 8.1(b).
8.2 Permitted disclosure: The obligation of confidentiality in clause 8.1 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 Stickybeak if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that Stickybeak enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 8.
9.1 Mutual warranties: Each party warrants that it has full power and authority to perform its obligations under these Terms.
9.2 No implied warranties: To the maximum extent permitted by law:
(a) Stickybeak’s 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; and
(b) Stickybeak makes no representation concerning the quality of the Services and does not promise that the Services will:
(i) meet the Customer’s requirements or be suitable for a particular purpose; or
(ii) be secure, free of viruses or other harmful code, uninterrupted or error free.
9.3 Consumer Guarantees Act: The Customer agrees and represents that it is acquiring the Services, and entering these Terms, for the purposes 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 9.3.
9.4 Limitation of remedies: 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, the liability of Stickybeak for any breach of that condition or warranty is limited, at Stickybeak’s option, to:
(a) supplying the Services again; and/or
(b) paying the costs of having the Services supplied again.
10.1 Maximum liability: The maximum aggregate liability of Stickybeak 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 12 months period exceed an amount equal to the Fees paid by the Customer relating to the Services in the previous 12 months. The cap in this clause 10.1 includes the cap set out in clause 10.2(a).
10.2 Unrecoverable loss: 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 Data), and/or goodwill; or
(b) consequential, indirect, incidental or special damage or loss of any kind.
10.3 Unlimited liability:
(a) Clauses 10.1 and 10.2 do not apply to limit Stickybeak’s liability under or in connection with these Terms for:
(i) personal injury or death;
(ii) fraud or wilful misconduct; or
(iii) a breach of clause 8.
(b) Clause 10.2 does not apply to limit the Customer’s liability:
(i) to pay the Fees;
(ii) under the indemnity in clause 5.6; or
(iii) for those matters stated in clause 10.3(a).
10.4 No liability for other’s failure: 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.
10.5 Mitigation: 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.
11. TERM, TERMINATION AND SUSPENSION
11.1 Duration: Unless terminated under this clause 11, these Terms and the Customer’s right to access and use the Service:
(a) starts on the Start Date; and
(b) continues until a party gives at least 30 days notice that these Terms and the Customer’s access to and use of the Service will terminate on the expiry of that notice.
11.2 Termination of subscription account: If the Customer has selected a subscription option that includes a minimum initial term, the earliest date for termination under clause 11.1 will be the expiry of that initial term.
11.3 Other Termination rights: Either party may, by notice to the other party, immediately terminate these Terms if the other party:
(a) breaches any material provision of these Terms and the breach is not remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach or 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.
11.4 Customer’s termination rights: The Customer may terminate these Terms and their right to access and use the Services in accordance with clauses 6.4 and 12.8(b).
11.5 Consequences of termination or expiry:
(a) Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination or expiry.
(b) On termination or expiry of these Terms, the Customer must pay all Fees for Services provided prior to that termination or expiry.
(c) Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of these Terms and subject to clause 11.5(d), 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.
(d) At any time prior to one month after the date of termination or expiry, the Customer may request:
(i) a copy of any Data stored using the Service, provided that the Customer pays Stickybeak’s reasonable costs of providing that copy. On receipt of that request, Stickybeak must provide a copy of the Data in a common electronic form. Stickybeak does not warrant that the format of the Data will be compatible with any software; and/or
(ii) deletion of the Data stored using the Service, in which case Stickybeak must use reasonable efforts to promptly delete that Data.To avoid doubt, Stickybeak is not required to comply with clause 11.5(d)(i) to the extent that the Customer previously requested deletion of the Data.
11.6 Rights to restrict: Without limiting any other right or remedy available to Stickybeak, Stickybeak may restrict or suspend the Customer’s access to the Service and/or delete, edit or remove the relevant Data if Stickybeak considers that the Customer (including
any of its personnel) has:
(a) undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;
(b) used, or attempted to use, the Service:
(i) for improper purposes; or
(ii) in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;(c) transmitted, inputted or stored any Data 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.
12.1 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure, provided that the affected party:
(a) immediately notifies the other party and provides full information about the Force Majeure;
(b) uses best efforts to overcome the Force Majeure; and
(c) continues to perform its obligations to the extent practicable.
12.2 Rights of third parties: No person other than Stickybeak and the Customer has any right to a benefit under, or to enforce, these Terms.
12.3 Waiver: To waive a right under these Terms, that waiver must be in writing and signed by the waiving party.
12.4 Independent contractor: Subject to clause 5.3, Stickybeak is an independent contractor of the Customer, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
12.5 Notices: If Stickybeak needs to contact the Customer, it may do so by email or by posting a notice on the Website. The Customer agrees that this satisfied all legal requirements in relation to written communications. The Customer may give notice to Stickybeak under or in connection with these Terms by emailing email@example.com.
12.6 Severability: If any provision of these Terms is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the provision must be treated for all purposes as severed from these Terms without affecting the legality, enforceability or validity of the remaining provisions of these Terms.
12.7 Survival: Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 5.6, 7, 8, 9, 10, 11.5 and 12.11 continue in force.
(a) Subject to clause 12.8(b):
(i) we may change these Terms at any time by notifying you of the change by email or by posting a notice on the Website; and
(ii) unless stated otherwise, any change takes effect from the date set out in the notice.
(b) If a change to these Terms is detrimental to the Customer, the Customer may terminate these Terms and their right to access and use the Service on no less than 10 days’ notice, provided the notice is received by Stickybeak before the date that the change takes effect. If the Customer gives notice under this clause 13.8(b)/12.8(b), the previous version of the Terms will apply to their access to and use of the Service during the notice period. If the Customer does not exercise their termination right under this clause, and they continue to access
and use the Service from the date on which the Terms are changed, they agree to be bound by the changed Terms.
12.9 Entire agreement: These Terms sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or
agreement relating to the Service 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 13.9.
12.10 Subcontracting and assignment: The Customer may not assign, novate, subcontract or transfer any right or obligation under these Terms without the prior written consent of Stickybeak, that consent not to be unreasonably withheld. The Customer remains liable
for its obligations under these Terms despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
12.11 Law: These Terms 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.
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