ADVICE ON SUBSCRIPTION TERMS

The Customer warrants the Plan meets the Customer’s needs at the Commencement Date and for the duration of the Term, and acknowledges that the full amount of the product cost has been spread over monthly payments, and that the full amount of the product will be due to be paid in full by the end of the term.  Furthermore:

1.          The Customer may add additional Plans at any time using the Website or otherwise with the consent of Max Marketing Ltd and the Customer shall pay any additional Service Fees or charges from the start of the next billing period.

2.         Max Marketing Ltd shall provide the Services to the Customer in accordance with the Plan and shall deliver the Services in accordance with Good Industry Practice.  The Customer uses the Services and the Website solely at its own risk.

3.         The Customer warrants that it has obtained its own independent professional and technical advice, or has decided not to do so, prior to entering these General Terms & Conditions and that it shall use the Services hereunder freely and voluntarily without duress or pressure to do so from Max Marketing Ltd.

4.         The Customer acknowledges and agrees that Max Marketing Ltd is not licensed to provide financial advice or financial services; and Max Marketing Ltd provides marketing advice only and not specific financial or other advice of any kind.  The Customer shall use the Services at its own risk and shall not rely upon the Services as a substitute for specific financial or other advice.

5.         The Customer hereby releases and discharges Max Marketing Ltd and its officers, employees, agents and assigns from and against any liability arising as a consequence of any advice provided in connection with the Services.

6.         The Customer shall access the Services via the Website & by phone or email using the Login Codes provided and shall keep the Login Codes strictly confidential and secure from third parties.

7.         The Customer shall configure the Services to its requirements using the features and functionality made available through the Website. Max Marketing Ltd may assist with but is not responsible for configuration of the Services for the Customer.

8.         Max Marketing Ltd may access the Customer’s Data and Login Codes any time for any reason without the prior consent of the Customer and without giving prior notice to any person for doing so.

9.         The Customer is licensed to use, and shall use, the Services and the Website only for the Authorised Use.

10.        The Customer shall only permit its officers and employees who are Authorised Users to use the Services and the Website.

11.         The Customer shall comply with the Acceptable Use Policy.

12.        The Customer acknowledges and accepts the Privacy Policy.

13.        The Customer shall comply with Max Marketing Ltd’s terms of use of the Website.

Data and Content

The Customer authorises Max Marketing Ltd, and warrants that Max Marketing Ltd is authorised (including by any relevant third parties) to access and manipulate Data if in Max Marketing Ltd’s sole opinion that is reasonably necessary to provide the Services.

Intellectual Property

1.          Max Marketing Ltd owns or is licensed to use all Intellectual Property in the Services and the Website.

2.         The Customer licenses, and warrants that Max Marketing Ltd is authorised, to use, copy, modify, configure and integrate the Data and Content supplied by the Customer for the purposes of these General Terms & Conditions.

3.         Max Marketing Ltd licenses the Customer to use the Services and the Website for the Authorised Use in accordance with these General Terms & Conditions.

4.         Nothing herein disclaims, abrogates, alienates or affects Max Marketing Ltd’s subsisting and continuing moral rights in the Services and the Website.

5.         The Customer shall not copy, hack, alter or disseminate the Services or Website in any way, nor allow any third party to do so.

6.         The Customer agrees Max Marketing Ltd may suspend or terminate the Services and access to the Website if any infringement of a third party’s Intellectual Property occurs or is alleged in connection with the Website.

Help Desk Support

1.          Max Marketing Ltd may provide the Customer with Help Desk Support for the Services and Website as per the terms of the subscription.

2.         The Customer may access Help Desk Support via any email address, phone number, website or other contact method designated by Max Marketing Ltd.

3.         Max Marketing Ltd shall use its best endeavours to respond to any Help Desk Support enquiries or reports in a timely manner but is otherwise not bound to respond or to rectify any defects, errors, threats or other issues arising within any particular timeframe.

Service Fees

1.          The Customer shall pay the Subscription Fees set out in the Plan and as otherwise agreed in writing between the parties.

2.         Max Marketing Ltd may vary the Subscription Fees at any time by serving not less than 7 days’ prior written notice of the same upon the Customer and giving the Customer an opportunity to terminate this agreement prior to the expiry of that notice period if the Customer does not accept the varied Service Fees. The Customer shall not be entitled to any compensation or other remedy in the event of termination hereunder. Upon the expiry of the notice period, if the Customer has not terminated, the Customer shall be deemed to have accepted the varied Service Fees as notified by Max Marketing Ltd.

3.         Max Marketing Ltd may block and/or suspend the provision of or access to the Services and Services if any Service Fees are unpaid or become overdue (whether in whole or in part).

4.         Max Marketing Ltd may at its sole discretion recommence or restore the provision of or access to the Services if any overdue invoice for Service Fees is paid.

5.         The Customer acknowledges and agrees that it may take up to 48 hours for any Service to be recommenced or restored.

6.         The Customer shall pay Service Fees by credit card, electronic funds transfer, direct debit, or in any other manner agreed by Max Marketing Ltd. Where payment is made or taken by credit card, Max Marketing Ltd shall be entitled to add a reasonable surcharge of up to 2.5% of the total amount due under any invoice.

7.         Max Marketing Ltd may pass on and charge the Customer any fees, levies or charges it incurs as a result of any credit card, direct debit, cheque or similar payment transaction failing or being declined.

8.         Unless otherwise stated, Service Fees are exclusive of GST. The Customer shall, in addition to Service Fees, pay Max Marketing Ltd the amount of the GST. The Customer shall be entitled to a tax invoice for its payments for Services.

9.         The Customer must not deduct or set-off any money owing to it or any money which the Customer reasonably anticipates will become owing to it by Max Marketing Ltd from any money due to Max Marketing Ltd under these General Terms & Conditions.

Errors and omissions

1.          Max Marketing Ltd shall use its best endeavours to rectify at its cost any material errors or omissions in the Services provided hereunder promptly whenever such an error or omission is found in the course of execution of the Services. An error or omission is material if Max Marketing Ltd determines in its absolute discretion (acting reasonably) that it is not minor and prevents the Services from satisfying the Customer’s specifications, any Legislative Requirements and/or the standards of Good Industry Practice.

2.         Notwithstanding the foregoing, Max Marketing Ltd shall not be liable to rectify any errors or omissions caused or partly caused directly or indirectly by or arising from:

a.         any misinformation provided by the Customer;

b.         any direction given by the Customer;

c.         any conduct of the Customer or any third party;

d.         any undue duress, pressure or influence exerted by the Customer upon Max Marketing Ltd or its officers, employees, agents or subcontractors; or

e.         any accident, act of God, fire, flood, war, act of violence, terrorism or similar occurrence beyond Max Marketing Ltd’s reasonable control.

3.         The Customer shall submit all claims for rectification to Max Marketing Ltd in writing promptly upon discovering them.

Limitation of liability

1.          To the extent permitted by law, and without limiting the foregoing subject always to the Competition and Consumer Act, New Zealand Consumer Law, and the Fair Trading Act, Max Marketing Ltd does not warrant either the quality or standard of the Services provided hereunder, or the design, performance, use, utility, fitness for purposes or merchantable or acceptable quality of any software, service, product or thing for any particular purpose or at all, other than to the extent expressly represented in these General Terms & Conditions or in any documentation prepared and supplied by Max Marketing Ltd to the Customer hereunder and to the extent implied or required by law.

2.         Max Marketing Ltd may, at its option, choose to satisfy any claim for rectification of any defect or omission in the Services by either:

a.         resupplying the Services at Max Marketing Ltd’s cost; or

b.         paying a third party approved by Max Marketing Ltd to resupply the Services or to supply replacement Services hereunder, upon which Max Marketing Ltd shall be fully and effectually released and discharged from any further obligations in relation to such claim.

3.         In no case shall the value of a claim by the Customer for rectification of any defect or omission (as assessed and determined by Max Marketing Ltd, acting reasonably) exceed the total value of the Services Fees paid by the Customer under these General Terms & Conditions up to the date the claim is made, and all damage or expense over and above such amount shall be the responsibility of the Customer.

4.         Max Marketing Ltd shall not be liable to the Customer for any delay or delays in the provision of the Services.

5.         Max Marketing Ltd shall not be liable to compensate the Customer for any delay in either replacing or remedying an actual or alleged defect or omission or in properly assessing or responding to a claim.

6.         Max Marketing Ltd shall be under no liability whatsoever to the Customer for any indirect, special or consequential loss and/or damage (including loss of profit, loss of revenue or other economic loss) suffered by the Customer arising out of or in connection with any Services or any defect or omission arising under these General Terms & Conditions.

7.         The Customer shall give Max Marketing Ltd reasonable access to any premises or property (including to Devices via screen sharing) required for Max Marketing Ltd to fully and properly investigate and assess any and all claims hereunder.

8.         Max Marketing Ltd may decline any claim which does not comply with these General Terms & Conditions, or which is not covered by these General Terms & Conditions, or which is made for Services that are found not to be defective by Max Marketing Ltd, in which case Max Marketing Ltd may give notice to the Customer that the claim is declined and the Customer shall be responsible for Max Marketing Ltd’s reasonable costs of receiving, processing, assessing and declining the Customer’s claim. Max Marketing Ltd may invoice the Customer any such costs incurred by it and the Customer shall promptly pay the invoice within seven (7) days of the date of the invoice.

Default & consequences of default

1.          Without prejudice to Max Marketing Ltd’s other remedies at law or in equity, Max Marketing Ltd shall be entitled to immediately suspend or terminate the supply of the Services in the event that:

a.         any Service Fees are not paid when due; or

b.         the Customer breaches these General Terms & Conditions; or

c.         the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

d.         a trustee in bankruptcy, receiver, manager, administrator, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

2.         Max Marketing Ltd will not be liable for any loss or damage the Customer suffers because Max Marketing Ltd has exercised its rights under this clause.

3.         If Max Marketing Ltd terminates these General Terms & Conditions under clause 14.1, Max Marketing Ltd may pursue the Customer for damages for breach or specific performance or both.

4.         Max Marketing Ltd’s rights and entitlements hereunder are in addition to the rights which Max Marketing Ltd may have at law or in equity.

5.         If the Customer defaults in payment of any Service Fees, the Customer shall indemnify Max Marketing Ltd from and against all costs and disbursements incurred by Max Marketing Ltd in pursuing the debt including legal costs on a solicitor and own Customer basis and Max Marketing Ltd’s collection agency costs.

6.         Interest on overdue Service Fees shall accrue daily from the date when payment becomes due, until the date of payment, interest shall be calculated and invoiced monthly and shall be payable immediately upon invoicing by Max Marketing Ltd.

7.         If any account remains overdue after thirty (30) days, then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.

Termination for convenience

1.          Either party may terminate these General Terms & Conditions, with or without giving any reasons for doing so, after the minimum term of 12mths has passed, and only when the total payment amount due has been paid in full.

2.         Max Marketing Ltd may suspend the provision of the Services at any time after notice of termination is given by either party.

3.         Neither party shall be liable to the other party for any loss or damage whatsoever arising from termination under clause 17.1.

4.         The termination of these General Terms & Conditions by either party is without prejudice to any other right or remedy which they may have against each other at law or in equity.

Representations

1.          The Customer represents and warrants that at the date of acceptance of these General Terms & Conditions by the Customer and at all times until these General Terms & Conditions are fully performed and completed:

a.         the Customer is not bankrupt and is not insolvent or in receivership or under administration, official management or liquidation and has not entered into an arrangement with its creditors;

b.         the Customer is able to carry on its business and perform its obligations under these General Terms & Conditions;

c.         the Customer is adequately insured with a reputable insurer against all risks which a prudent person carrying on its business would insure against;

d.         there are no legal proceedings, actions, prosecutions or investigations threatened, pending or commenced against the Customer or the directors or shareholders of the Customer;

e.         all corporate authorisations and approvals necessary to enable it to enter into these General Terms & Conditions have been obtained and remain in full force and effect;

f.          all governmental requirements, authorisations, approvals and licenses which are necessary for the Customer to legally carry on its business are in full force and effect; and

g.         it has not withheld from Max Marketing Ltd any document, information or other fact material to the decision of Max Marketing Ltd to enter into these General Terms & Conditions or to supply Products or provide credit to the Customer.

2.         The Customer must immediately notify Max Marketing Ltd if any of the aforementioned representations, warranties and covenants cease to be true and correct.

Force majeure

1.          Max Marketing Ltd will not be liable for any failure or delay in the performance of its obligations under these General Terms & Conditions to the extent such failure or delay is caused by a Force Majeure Event.

2.         If a Force Majeure Event arises, Max Marketing Ltd shall use reasonable endeavours to promptly advise the Customer of the details of the Force Majeure Event and its likely effect on the performance of Max Marketing Ltd’s its obligations hereunder, and Max Marketing Ltd shall Max Marketing Ltd shall take all steps reasonably necessary to recommence performance of the affected Services and minimise any delay caused by the Force Majeure Event.

Dispute resolution

1.          If a dispute arises out of or relates to these General Terms & Conditions, the breach, termination, validity or subject matter of these General Terms & Conditions, or any claim in tort, in equity or pursuant to any domestic or international statute or law, then subject always to clause 21.6 the parties to the Agreement and to the dispute expressly agree to endeavour in good faith to settle the dispute by mediation administered by a mediator appointed under the Mediation Rules of the Resolution Institute as in existence at the time written notice is received by the parties.

2.         A party claiming that a dispute has arisen must give written notice to the other parties to the dispute specifying the nature of the dispute.

3.         On receipt of the notice, the parties to the dispute must within seven (7) days of receipt of notice seek to resolve the dispute.

4.         If the dispute is not resolved within the said seven (7) days or within such further period as the parties agree, then the parties must mediate the dispute and adopt the provisions of, and the procedures noted in, the Mediation Rules of the Resolution Institute, being the Rules in existence at the date of the notice.

5.         The terms of the Mediation Rules of the Resolution Institute, being the Rules in existence at the date of the notice, are hereby deemed incorporated into these General Terms & Conditions.

6.         Notwithstanding the foregoing, Max Marketing Ltd shall always have the right to institute legal proceedings in any court of competent jurisdiction in order to collect payments due to Max Marketing Ltd by the Customer whether under these General Terms & Conditions or any other agreement, without first being required to undergo mediation or any other form of alternate dispute resolution.

7.         This clause 21 survives termination or expiration of these General Terms & Conditions.

General

1.          These General Terms & Conditions prevail over any terms of trade or terms and conditions of supply or of acquisition of goods or services provided or submitted by the Customer or agreed to by Max Marketing Ltd to the extent of any inconsistency between them.

2.         The parties contract hereunder independently and at arm’s length. Nothing herein constitutes either party a partner, joint venturer, agent or employee of the other party.

3.         Each party warrants, states and represents that the party has entered these General Terms & Conditions with full knowledge of the responsibilities of the party under it, with full knowledge of the effect of these General Terms & Conditions on the party’s financial position, after either obtaining or electing not to obtain independent legal and accounting and taxation advice on the terms and subject matter of these General Terms & Conditions, and without any reliance on any other party in respect thereof.

4.         If any provision of these General Terms & Conditions shall be invalid, illegal or unenforceable, that provision shall be severed from these General Terms & Conditions and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired in any way.

5.         All notices required to be given by the Customer under these General Terms & Conditions must be given in writing (whether electronically or in hard copy), addressed to Max Marketing Ltd at its registered office (or other address published on the Website), in the English language, signed (whether digitally or in hard copy) by the Customer (or its duly authorised attorney or representative), and dated the date on which it was signed. Max Marketing Ltd may give notices to the Customer in any form Max Marketing Ltd thinks fit and, without limiting the foregoing, if Max Marketing Ltd publishes a notice or any content on the Website then the Customer is deemed to have received that notice and notice of that content on and from the date of publication. The Customer shall check and monitor and keep updated with all notices and content published on the Website.

6.         Max Marketing Ltd may license or sub-contract all or any part of its rights and obligations without the Customer’s consent. Max Marketing Ltd may also at its sole discretion transfer or assign all or any part of its rights and obligations hereunder to any third party without the Customer’s consent.

7.         The Customer shall not transfer or assign all or any part of its rights and obligations hereunder without first obtaining the prior written consent of Max Marketing Ltd.

8.         The Customer shall not transfer this agreement to another party without written consent from Max Marketing.

9.         Max Marketing Ltd shall not be required to notify the Customer of, or obtain the Customer’s consent to, any change or proposed change of ownership or control in Max Marketing Ltd.

10.        Max Marketing Ltd reserves the right to review these General Terms & Conditions at any time. If, following any such review, there is to be any change to these General Terms & Conditions, then that change will take effect from 7 days after the date on which Max Marketing Ltd notifies the Customer of such change. The Customer may not change or amend these General Terms & Conditions without Max Marketing Ltd’s prior written agreement.

11.         Personal information about the Customer may be used and retained by Max Marketing Ltd for the provision of products or services, the marketing of products or services, credit checking, maintenance of the Customer’s account/s with Max Marketing Ltd, processing any payment instructions or direct debit or credit facility, and debt collection, as well as for any other purposes as may be agreed between the parties or required by law from time to time.

12.        The failure by Max Marketing Ltd to enforce any provision of these General Terms & Conditions shall not be treated as a waiver of that provision, nor shall it affect Max Marketing Ltd’s right to subsequently enforce that provision.

13.        Any party signing or executing or otherwise accepting these General Terms & Conditions on behalf of the Customer as the Customer’s director, officer, attorney or representative hereby warrants, states and represents in his or her personal capacity that he or she is duly authorised and permitted to do so by the Customer and by law.

14.        Subject to any written agreement to amend the terms hereof, these General Terms & Conditions constitute the sole and entire agreement between the parties with respect to its subject matter. No warranties, representations, guarantees or other terms or conditions of any kind not contained and recorded in these General Terms & Conditions are of any force or effect.

15.        These General Terms & Conditions and any contract to which they apply shall be governed by the laws applicable in New Zealand and are subject to the jurisdiction of the courts of New Zealand. All legal proceedings in relation to these General Terms & Conditions shall be instituted and held in Auckland, New Zealand.