THRIVE MEDIA TERMS AND CONDITIONS
1. Terms and Conditions
These Terms & Conditions (“Agreement”) are between Thrive Media Ltd (“Thrive Media”) and you for the provision of certain Services described below.
You acknowledge that you have read, understood and agreed to these Terms & Conditions, and agree to be bound by them.
Thrive Media is only willing to supply Services on these Terms & Conditions.
2.1 The Agreement is structured so that the Terms & Conditions are subject to this Master Services Terms & Conditions.
2.2 The Master Services Terms & Conditions takes precedence over Service List and the Terms & Conditions relevant to each Service. If there is any inconsistency between the provisions of the Master Services Terms & Conditions and the Terms & Conditions relevant to each Service, this Master Services Terms & Conditions will prevail to the extent of any inconsistency.
3. Services and the Service List
3.1 The Service List below sets out Services offered by Thrive Media and the Terms & Conditions relevant.
3.2 When you agree to this Agreement you also agree to be bound by the Terms & Conditions.
4. Variations and Cancellations
4.1 You may change Services by notifying Thrive Media in writing. Your new Service will take effect from the date Thrive Media commences provision of the new Services in accordance with your new Service Proposal document, or as otherwise agreed in writing by Thrive Media. Your next invoice will reflect:
(a) Charges applicable to your new Service from the date of the notice;
(b) Charges for any remaining invoice period for your previous Service(s) (whether or not such Service(s) are utilised during such remaining invoice period);
(c) Charges for amounts then due but unbilled for your previous Service(s); and
(d) Charges for costs associated with any Service change or cancellation, where such costs are based on the standard rates of Thrive Media at the time. Any amounts or deposits already paid by you for a changed, cancelled or discontinued Service shall not be refunded in any circumstances.
4.2 Thrive Media may change these Terms & Conditions, by giving you written notice (whether by email, fax or post to your designated email address, fax number or postal address, notified by you to Thrive Media as part of your registration process). Where a change relates to an increase in Charges, Thrive Media shall provide you with thirty (30) days’ prior written notice.
This Agreement commences on the date Thrive Media confirms to you that Service has been activated or such other date as agreed by us in writing (“Commencement Date”) and continues until terminated in accordance with the terms contained herein.
6.1 The Charges payable for each Service, whether recurring or not, are set out in your Proposal document. The Charges shall be payable in NZ dollars within 7 days of the date of the invoice or on such other payment terms set out therein and must be made by one of the methods outlined in the invoices provided by Thrive Media. All deposits or advanced payments are non-refundable.
6.2 You remain committed to pay us for all Charges for Services for their full invoicing periods (as selected in your Proposal document), irrespective of whether:
(a) this Agreement (or any Terms & Conditions) have been suspended or terminated during such invoicing period, or
(b) such Services have been changed or cancelled during such invoicing period.
6.3 Unless otherwise stated, all Charges and other amounts payable are exclusive of GST.
6.4 Thrive Media may set off any amounts due and payable under this Agreement against amounts that may be payable by Thrive Media to you.
6.5 Thrive Media reserves right to charge interest on overdue amounts at annual rate of 2% over Reserve Bank of New Zealand base rate ruling on due date.
6.6 Invoices may only be disputed by you by providing Thrive Media with written details of the dispute within seven (7) days of the date of the invoice, failing which the invoice shall be deemed to have been accepted by you. You shall remain liable to make payment of any undisputed portions of an invoice.
6.7 Thrive Media may issue a refund where the client has purchased online via our website, and not received the goods or services specified in the transaction.
7.1 Thrive Media may terminate or suspend this Agreement (without any liability): (a) at any time by giving you at least 1 month notice; (b) immediately on giving notice to you, if you breach, including failure to pay the Charges; or (c) you become insolvent within the meaning of Corporations Act, are otherwise unable to pay your debts when due or you cease to carry on business.
7.2 Thrive Media may also suspend or terminate particular Services and should it elect to reinstate such suspended Service you shall be responsible for Thrive Media’s standard re-activation charge.
7.3 On termination or expiration of this Agreement, or any Terms & Conditions relevant to a Service:
(a) Thrive Media shall invoice you for all amounts then due but unbilled and it may delete all data, materials, content, configuration and settings in connection with your Services, whether on Thrive Media storage media or otherwise. It is your obligation to ensure you have retained back-up copies.
(b) Any amounts or deposits already paid by you shall not be refunded in any circumstances.
8.1 Services shall be provided without any guarantees, conditions or warranties as to its accuracy, completeness, reliability, suitability or currency of Services and they are provided on an “as is where is” basis. Thrive Media does not warrant that the Services will be uninterrupted or error free, will meet your requirements, nor will they be free from external intruders (hackers), unauthorised virus or worm dissemination. Any timeframes are provided as a guide or estimate only.
8.2 To extent permitted by law, Thrive Media, its directors and employees hereby expressly exclude: (a) all conditions, warranties and other terms which might otherwise be implied by statute, common law or equity; and (b) any liability for any direct, indirect or consequential loss or damage incurred by you or any end user in connection with Services, or use of Services, including, without limitation any liability for loss of income or revenue; loss or interruption of business; loss of profits; loss of anticipated savings; loss of data; loss of goodwill; wasted management; and for any other loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
8.3 This does not affect liability of Thrive Media which cannot be excluded or limited at law. Without limiting foregoing, parties acknowledge that laws in certain jurisdictions may imply warranties and conditions which cannot be excluded, restricted or modified except to a limited extent. If any such laws apply, then to extent permitted by law of relevant jurisdiction, Thrive Media’s liability is limited to any one or more of the following in its sole discretion: (a) in case of any goods, replacement or repair of goods, or supply of equivalent goods, or payment of cost of repairing or replacing goods or supplying equivalent goods; and (b) in case of any services, supply of services again or payment of cost of having services supplied again.
8.4 Without limiting foregoing, you agree that in no event shall Thrive Media’s maximum aggregate liability exceed NZ$2,000.00.
8.5 You shall indemnify Thrive Media, its directors, employees and representatives from and against all actions, claims, suits, damages, liabilities or costs (including legal costs) arising from, or directly or indirectly related to provision of materials by you, use of Services by you or anyone else, or otherwise arising as a result of this Agreement.
9.1 All notices given by Thrive Media may be given by email to email address notified by you to Thrive Media as part of your registration process. It is your obligation to keep that email address current and correct. You agree and acknowledge that the record of Thrive Media having sent a notice to you by email is, of itself, conclusive proof of receipt.
9.2 Notices given by you must be delivered to Thrive Media in writing and addressed to: Thrive Media Pty Ltd, 1B Francis St, Grey Lynn. Auckland, or emailed to firstname.lastname@example.org
10. Force Majeure
Thrive Media shall not be responsible for any delay, suspension or failure arising out of any circumstances outside of its reasonable control, including but not limited to, acts of God, governmental actions, labour difficulty, war or national emergency, terrorism, fire, explosion, flood, an act or omission of a third party, inability to obtain any materials, equipment, facilities or services, failure of performance provided by others, internet interruption or virus, breakdown software, hardware or communication network.
You shall not, during duration of this Agreement, and for a period of one (1) year thereafter, hire, engage, solicit, employ or contract the services of any of the employees or contractors of Thrive Media or others involved in the provision of Services.
12. Intellectual Property & Confidentiality
12.1 Thrive Media retains copyright and all other intellectual property rights in: (a) all programming modules, code, computer programmes, material, tools, drawings, documents, presentations, specifications, data, designs, know-how and anything else generated, whether as improvements or otherwise, in course of providing (directly or indirectly) the Services; and (b) all intellectual property rights existing prior to the commencement of such Services (“Thrive Media IP”). Unless agreed otherwise in writing, Thrive Media shall be entitled to claim authorship for any work which it is responsible.
12.2 Thrive Media licenses to you the right to access the Thrive Media IP on a non-exclusive basis to such extent as is necessary to enable you to make reasonable use of the relevant Services for the duration of the Agreement.
12.3 You acknowledge that Services may include individual third party software or third party intellectual property rights (including, with limitation, content management system and open source software) (“Third Party IP”) and the licence in clause 12.2 and your rights to use Services is without prejudice to the Third Party IP. Any rights you may have to access Third Party IP shall be limited to extent of Thrive Media’s right to access same and its ability to pass on such rights to you.
12.4 In relation to licence (clause 12.2) and right to access (clause 12.3): (a) they will both automatically terminate if Agreement, or Terms & Conditions relevant to a Service, comes to an end; and (b) they do not include right to replicate, commercialise, adapt, modify, reverse engineer, decompile or disassemble wholly or partly
12.5 In relation to any data, content, information or material provided by you to us, you warrant that same will not infringe the rights of any third party nor contravene any law or industry code.
12.6 Save as required by law, you shall not disclose any confidential information relating to Thrive Media or its affiliates which you obtain during or arising out of this Agreement, to anyone (except your employees on an as need basis). You shall procure that anyone else receiving benefit of Services, whether your employees or otherwise, comply with terms of this clause as if they were a party to this Agreement.
13. Entire Agreement
This Agreement, and the documents referred to herein, contains the entire understanding between the parties as to its subject matter and supersedes and excludes all prior and other discussions, specifications, representations and arrangements relating to Services including, but not limited to, those relating to performance or results that ought be expected from using Services. Any representations (oral or written) given by, or on behalf of, Thrive Media shall not be relied upon. Notwithstanding, you shall also be bound by any policies or guidelines of Thrive Media.
14. Governing Law
This Agreement (and each Terms & Conditions relevant to a Service) and any dispute or claim arising out of or in connection with same shall be governed by and construed in accordance with the laws of Sydney, Australia and parties submit to the exclusive jurisdiction of that State.
In this agreement:
(a) A reference to “this agreement ” means these terms and conditions (including any schedule) together with a Purchase Order or Quote (if any);
(b) Headings and bold type are for convenience only and do not affect the interpretation of these terms;
(c) The singular includes the plural and the plural includes the singular;
(d) Words of any gender include all genders;
(e) Other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning, unless the context clearly requires otherwise;
(f) An expression importing a person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency as well as an individual;
(g) A reference to any legislation includes all delegated legislation made under it, and amendments, consolidations, replacements or re-enactments of any of them;
(h) A reference to a party to a document includes that party’s successors and permitted assignees;
(i) A promise on the part of 2 or more persons binds them jointly and severally;
(j) No provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
(k) Specifying anything in this agreement after the words “include ” or “for example ” or similar expressions does not limit what else is included…