We have set our terms and conditions in 3 key sections:
A. Some key important Preliminary Terms;
B. Our General Terms – these apply to all of our Services (see clauses 4 onwards below).
C. Our Service Specific Terms – these apply only to those Specific Services which you elect to purchase in addition to the Base Service (see Part C below).
A. Preliminary Terms
By registering with us, or otherwise using any of our Services or our website, you acknowledge and accept that:
Price and Payment
13 .Price: The Price for the Services you purchase will be as clearly stated in the Sales Order we provide to you. You will be deemed to have approved a Sales Order if you use the relevant Service as stated in the Sales Order. You agree to pay us the Prices as stated in that Sales Order, on time in accordance with clause.
14. All Prices and any other fees and charges are in New Zealand dollars and exclude GST, which is also payable except by non-NZ resident organisations – unless stated otherwise in the relevant Sales Order. The client must pay all applicable GST at the same time the fee is due for payment.
15. Variable Prices / Third Party Pricing: Some third parties may use a variable pricing model (such as Facebook and Google advertising).Those (or other) third parties Sky Media engage with on behalf of the Client as part of the Services purchased may vary their prices and other charges to us in any way from time to time…Sky Media cannot control search engines or third parties, therefore if that occurs, we will be entitled to charge you the balance for any/all such third party price variations (should they occur), and you agree to pay such charges.
16. Suspension Request: The Client may request that one or more of the Services you are purchasing be suspended for a defined period and resumed without incurring an additional set up charge. All such requests are subject to our prior written consent, which might be provided (at our discretion) or with conditions attached. However, if approved, some payments may still need to continue for that Service, which we would explain at that time. Suspension of any services will take effect 30 calendar days following the date of your next monthly invoice. Sky Media will not be responsible for any negative campaign and ranking outcomes that may occur during any suspension. Failing to follow SEO recommendations by Sky Media, may negatively impact organic search performance and Sky Media cannot be held accountable. We highly recommend not to suspend or pause your SEO campaign as it can take weeks and sometimes months to recover lost rankings due to the suspension.
17. Non-standard rates (discounts): If we have agreed in our Sales Order to charge you a fixed price (or a non rate card price) for a defined period of time, then, following the applicable period, and for the remainder of your current Term and any renewed Term, you will be charged full rate card price for that Service. The maximum period of time available for non-standard or discounted prices is 12 months.
18. Payment: The required method of payment or any payment options available will be set out in your Sales Order. The client will be charged the full amount (in advance) for any Service that requires an up-front payment model. For Services which use a subscription payment model, you will be charged in regular instalments for that Service. Instalments are typically bi-monthly, quarterly or in 6-month blocks (payable in advance), occasionally alternative periods are available as may be set out in the Sales Order. Subscription amounts are payable for each period in advance, from the day of the Sales Order being signed, and then on the same date each month thereupon. The first payment of a Service is typically required within 48 hours of signing the Sales Order, and we will not be obliged to commence the relevant Service(s) until the first (or only) advance payment has been received by us in respect to that Service. Adjustments may be made in forthcoming months for any necessary negative or positive changes to invoices by Sky Media.
19. Credit Information: The Client accepts that we may use any information supplied to us, to undertake any credit checks required on you or your business before and after services will be or have been provided to you with any third party credit agency which we deem necessary. We reserve the right to require advance payment in full from customers whom we consider do not meet our credit criteria, prior to providing any Services to such customers.
20. Default: All amounts due and payable by you must be paid in full without set-off, counterclaim or any deduction whatsoever on or before that due date. If any payment due remains unpaid after its due date, we may invoke any of our rights under clauses 23 to 25, and we may also charge you interest at the rate of 15% (fifteen per cent) per annum on the outstanding amount, from the due date to the date all such amounts are paid in full. Any other fees incurred to Sky Media resulting from late or defaulted payments such as; costs of recovery, legal fees etc, will be charged to the Client… Should the amount outstanding be passed to an agency for recovery, any legal fees incurred by Sky Media from our Debt Recovery Agency shall be included in the charges owed by the Client. Client accepts that this may affect your credit rating for up to a maximum of 5 years.
21. Invoices: We will send you an electronic invoice by email for all amounts we are entitled to invoice you for. We accept Visa, Visa Debit and Mastercard. We have an ANZ Merchant Facility for all Credit Card transactions.Payment to be made by cheque, international money order or direct credit to: Sky Media, ANZ Bank, Auckland, New Zealand Account: 06 0889 0361010 00
22. By accepting these terms & conditions you agree that you shall not:
a. use any Sky Media services, products for any purpose that is improper, unlawful, or to post, share or transmit any material that (i) is defamatory, offensive, obscene or otherwise objectionable. (ii) is in breach of confidence or privacy of any third party’s rights including copyright, trademark or other intellectual property rights; (iii) is posted, shared or transmitted for the purpose of advertising or promoting yourself or any third party; or (iv) is misleading or misrepresents your identity or which in any way suggests that you are sponsored, affiliated or connected with Sky Media. b. use the Sky Media services, products for any public or commercial purpose in any manner which may result in damage to Sky Media or bring Sky Media into disrepute.
23. In addition to your other obligations as stated in these terms, you must: a. Comply with our terms, conditions and policies required by third party suppliers, search engines, platforms and social media channels we use. b. Promptly provide Sky Media with any information or Content required for any Service we deem necessary in a timely manner, as failure to do so may cause us to withdraw you from that particular Service even though you may remain liable for some or all of the related charges, or may cause us to reschedule the timing; c. make sure that Your Content as supplied to us or our associated third parties in connection with our Service:
d. not cause, permit or allow any damage, interference with, or other harm to our Digital Products, including our website, or any network or system underlying or connecting to them, or make any attempt to do so;
e. not use a robot, spider, scraper or other unauthorised automated means to access our products or our website or any information featured on them for any purpose
f. co-operate with our staff and comply with their reasonable requests from time to time in a timely manner, including in relating to the approval of Content, test website links, the provision of logins, information and images as requested. Our Digital Products and related Intellectual Property Matters.
24. Our Digital Products: Our Digital Products and other Intellectual Property we own will remain owned by us or our third party licensors at all times. At no time during or after this agreement terminates will you acquire any proprietary interest in relation to any of these items or properties we own. You merely obtain a limited, non-exclusive license to use those of our Digital Products in which we allow you to purchase the right to use as part of the Service, within the scope, duration and intended use requirements as stated in this agreement or as otherwise communicated by us to you from time to time.
25. No copying etc: No attempts to copy in any way, reverse engineer, decompile, or otherwise misuse any of our Digital Products at any time shall be permitted. You must not use our name, trademarks, brands or logos in any way without our prior written consent.
26. Purchased Content: With regard to Purchased Content (i.e. Content purchased by you from us):
a. From the time of creation of any Purchased Content until the time you have paid us in full as per this clause, we will be the sole legal and beneficial owner of all such Purchased Content. Once you have paid us in full for all charges associated with the creation and supply of that content and related services (i.e. to a final usable state) in accordance with the relevant Sales Order(s), you will become the owner of any such Content purchased… b. you are solely responsible for registering any ownership to the associated Intellectual Property at your cost (when you have full legal title), and you acknowledge and accept that we cannot and do not warrant that any such Content will be supplied to you free of any third party claims, whether at the time of delivery to you or at any time in the future. c. You agree to allow us to use any of your Purchased Content and any other items from Your Content in the ‘ShowCase’ section of our website, for the purpose of promoting these digital assets (without further charge to you) for other current or prospective customers of ours to view, and which will involve some (without charge) promotion of your business – and all done in a manner, timing, categories and approach as we may reasonably determine from time to time, and without any fees or charges being payable by us to you.
Your Content and related Intellectual Property Matters.
27. Third party intellectual property: Sky Media may present information to you from third party sources in various digital formats. This includes copy, images, logos, designs, links etc. Wherever a third party holds intellectual property in materials presented by Sky Media, the property remains with that party.
28. Your Content: Any Content supplied by you to us, remains owned by you or your third party licensors as the case may be at all times. At no time during or after this agreement terminates will we obtain any proprietary interest in relation to any of these items you own. However, access to supplied Content may be held by us with restricted access if fees and charges are owed in respect to any Service we have supplied to you. We merely obtain a limited, non-exclusive license to use Your Content for the purpose of supplying the Services which you request, to you.
29. Warranty: You warrant to us that our use of Your Content in accordance with this agreement will not result in any claim against us or any of our associated third party suppliers at any time. If any such claim does arise, and without limiting our other rights and remedies, we may immediately terminate the use of (and take down or remove) any of Your Content which we believe relates to any such claim.
Privacy, Security & Confidentiality
31. Security: Our Digital Products are supplied using some of the latest technology, including and/in relation to the security of the data you supply to us. A number of our services are supplied using the internet, and as the internet is widely acknowledged as being insecure, we are unable to guarantee with certainty that all data supplied to us will be safe and secure. Sky Media will use all reasonable endeavours to store data securely, we may also use third party hosting or other service suppliers to receive, store and process your data as part of the delivery of our Services to you. You confirm that this is acceptable.
32. Confidential Information: We accept that certain information which you supply to us is not intended for public viewing or use (“Confidential Information”). That information obviously excludes any of Your Content which is intended to be promoted or other published online as we agree with you. You accept that we, including our officers, employees, contractors, have the right to view and use your Confidential Information (which may include Personal Information) for the purpose of supplying those Services to you which you have ordered, or for administering your account with us or in relation to this agreement. Any information which you receive from us and which is not in the public domain must be treated as confidential information by you, and must not be disclosed or otherwise used by you (other than for your own internal business purposes in relation to this agreement) without our prior written consent.
Exclusions, Limitations & Indemnities
33. Indemnification: You shall indemnify, defend and hold Sky Media, it’s agents, affiliates, and licensors harmless from any claim, costs, losses, damages, liabilities, judgments and expenses (including reasonable fees of attorneys and other professionals), arising out of or Sky Media in connection with any claim, action or proceeding (any and all of which are “Claims”) by a third party arising out of your use of the Sky Media services or products in any manner that breaches this Agreement or otherwise arising out of materials or technology presented to you by Sky Media.
34. Exclusions: We will not be liable to you in any way for any indirect or consequential loss, or any loss of profits, revenue, or loss of data or other Content, or for any breach of this agreement by us due to an event or circumstance which is beyond our reasonable control. While we will do our best to optimise your results based on a range of techniques, we can’t guarantee your search position, rates of engagement, the number of clicks, impressions, leads or return on investment that any campaign delivers. Any projected business growth related forecast that may be provided by us from time to time is a non-binding forecast only. Traffic projections may vary as Sky Media has no control over search engines or social websites with respect to the type of sites and/or content they accept presently or in the future. The Clients website may be excluded at any time at the sole discretion of the search engine. It is the Client’s obligation to seek independent financial, tax, legal and other professional services advice in respect of your desired business goals, plans and projections.
35. Exclusions: Due to the inherent uncertainties associated with providing any services online via the Internet and related computer systems, we are unable to guarantee that our Services will be supplied uninterrupted and fault free at all times. You accept this.
36. Use of Third Parties: We may, as part of the Services, supply you with links to, or data from third party suppliers. Although we will take reasonable steps to ensure the accuracy and completeness of such links and data, we are not liable for any error, inaccuracy or omission in relation to such items.
37. Entire Agreement: This agreement (and the terms of any Sales Order(s) accepted by you) constitutes the entire agreement between you and us. No other terms apply. All representations which may have been made by either you or us before these terms were agreed, and all other provisions which may otherwise be implied into this agreement by operation of law, are excluded from this agreement but only to the extent permitted by law. In particular, due to your acceptance that both parties have entered into this agreement solely for business purposes, both parties agree to exclude the operation of sections 8, 11A, 12, or 13(1) of the Fair Trading Act 1986, and also the Consumer Guarantees Act 1993 (to the extent they might otherwise apply). Both parties acknowledge and confirm that these exclusions are both reasonable and fair towards the parties in the context of this agreement.
39. Variations: Sky Media may vary the terms of this agreement so as to apply when your term is renewed under clause 22, or at any time if we are doing so for all of our customers who purchase the relevant Service. We will send you an email in advance if we do this. You agree to accept all such variations subject to your right to not renew (when applicable) as stated in clause 22. Right to change term: Sky Media in its sole discretion reserves the right to introduce a minimum term period of any other Specific Service you may purchase at any time. Notification of any intended minimum term period will be advised in writing to you and will take effect no sooner than 30 calendar days following the date of your next monthly invoice.
40. Disputes: If either you or us has any issues or concerns about this agreement or our wider business relationship, we agree to set those concerns out reasonably, in an email to the other party, after which we must use all reasonable endeavours to discuss or meet to try to resolve the issue amicably. This step must be taken before any other legal action is taken by either party, other than in respect of any monies owing by you to us, or in respect of any urgent interlocutory relief.
41. Relationship: Unless expressly stated otherwise in these terms, we are not your agent and nor are you our agent. Both parties enter into this agreement as independent contractors.
42. No Assignment: You must not assign any of your rights of obligations under this agreement to any third party without our prior written consent. We may assign our rights or obligations under this agreement to any third party of substance who purchases the whole or a substantial part of our business at any time. We may do so without prior notice to you, or the need to obtain your consent. We will be released from all liability to you from the date of any such assignment by us.
43. Severance: If any of these terms are held to be invalid, unenforceable or illegal for any reason by a competent court or tribunal, the remaining terms will continue in full force and effect.
44. Governing Law & Forum: This agreement is governed by the laws of New Zealand and each party irrevocably submits to the non-exclusive jurisdiction of the courts of New Zealand. If there is a dispute between both parties and it is unable to be resolved through negotiation or mediation, the New Zealand Courts will have exclusive jurisdiction, over all claims that may arise out of or in connection with the agreement.
45. No waiver: No failure or delay on the part of either party to exercise any right or remedy under this agreement is a waiver of such right or remedy unless it is in writing and signed by the party purporting to waive its rights.
46. Priority: The provisions of the Sales Order shall take priority, over any conflict that may uprise between the provisions of this agreement and any Sales Order.
47. The following terms used in this agreement have the following meanings:
a) Business Day means any day in Auckland other than a Saturday, Sunday or Public Holiday.
b) Content includes text, graphical or other data in any form, and also includes logos, other designs, photos, sound and video recordings.
c) Digital Products means the SaaS software, apps, online tools and templates, and other digital products, or other Content or Intellectual Property which we (or our licensors) own, and which we allow you to use in accordance with the terms of this agreement.
d) Intellectual Property includes copyright, trademarks, designs, patents, know-how, confidential information or any other intellectual property as exists anywhere in the world at any time.
e) Personal Information has the meaning as given in the Privacy Act 1993.
f) Price means our price and other charges for supplying one or more Services to you, as set out in a Sales Order.
h) Production Specifications means the various Service production requirements (e.g. Content form or layout) for each particular Service which we specify from time to time.
i) Purchased Content means Content which you request us to create or otherwise generate for you as part of one or more of the Services and which is described or referenced in a Sales Order, but excludes all Digital Products.
j) Services means any Specific Services purchased by you from time to time.
k) Sales Order means an electronic (or paper) sales order generated by us (either by one of our Account Managers or Sales Reps). Sales Orders are also done over the telephone via a Verbal Agreement that is recorded and kept on file (The Verbal Contract takes around 1 minute to complete).
l) Term means the duration of this agreement as determined in accordance with clauses 19 to 25 (inclusive).
m) “We”, ”our” or ”us” means Sky Media Limited.
n) Website means our website at Skymedia.nz or any other websites that we may create and make available to you from time to time.
o) “You”, ”your” or ”Client” means the person, company, partnership or other legal entity accessing or using our website, Digital Products and Services, and includes their executors, administrators, successors and permitted assigns.
p) Your Content means Content which you or your nominated third party provider creates, generates or otherwise sends to us for use as part of any of the Services.
C. Service Specific Terms Important
The provisions set out in this Part C are in addition to those set out in Parts A and B above. If you haven’t already, you should read and consider Parts A and B carefully. We may want to amend the terms in Part C from time to time, so keep an eye out, as we will publish our updated terms and conditions on our website. Continuing to use or receive our products and services will mean that you acknowledge and agree to our changes.
Sky Media websites
Note: The terms below are in addition to those terms in Parts A and B above: What we’ll provide:
• Our Mobile Phone Responsive Websites are built on WordPress with 2-50 pages (depending on the agreement). You can add an unlimited number of additional pages yourself via the content management system (CMS). Any extra functionality or plugins may incur an additional charge and will need to be reviewed initially by Sky Media. Websites will be fully customised using a wide range of photos, content, colours and layout. Sky Media uses an extensive range of templates to find the one best suited to your business.
• Website hosting: Sky Media use a 3rd party Website Hosting company, all website hosting agreements are on a minimum 12-month plan.
• Editor access to a password protected content management system (CMS) to help you update your website. You may add, delete and edit the content as well as pages and posts on your website. Adding or editing plugins, themes and custom functionality to your website can cause technical issues and may be considered a breach of agreement to terms of trade. • A one-off 20-minute tutorial on how to use the CMS is available on request.
What you need to do:
• Sky Media may require Client logos, trademarks, copy, website images for use in creating landing pages, and other such uses as deemed necessary by Sky Media. Please provide these resources in a prompt manner as requested by us (stock photography can be sourced at an additional cost.)
• After our Copy Writer has completed the Websites content we offer two rounds of alterations or ‘tweaks’. Any subsequent changes will incur an additional charge.
• Provide details/instruction regarding the domain name in a prompt manner as requested by Sky Media.
• If you wish to end your website contract (on conclusion of the 12-month Website Hosting term) and have your website transferred to you, Sky Media can provide you with a zipped copy of your website files free of charge, which can be used by your developer to enable a new website.
• All plugins and themes used on your website are licensed directly to Sky Media and cannot be transferred.
Google Advertising (Google AdWords Search, Google AdWords Display) Note: The terms below are in addition to those terms in Parts A and B above:
What we’ll provide:
• We’ll set up your Google AdWords and/or Google Display campaigns.
• Once your advertising campaign is up and running, we’ll then modify and optimise it as the campaign runs, to try to deliver the best traffic for your spend. Traffic projections are based on search engine estimates. These figures cannot be guaranteed, and actuals may vary.
• We’ll do our best to keep you notified of any changes or instructions from Google that may affect you, but you agree that we’re not responsible for any of Google’s decisions or the way Google runs the Google AdWords programme. While we will do our best to optimise your results, we cannot guarantee your Google AdWords search position or the number of clicks, impressions or leads that a campaign delivers and actuals may vary. Sky Media has no control over the policies of Google in terms of the type of sites and/or content they accept currently or in the future.
What you need to do:
• Google’s terms state that you are only allowed one Google AdWords account (which includes AdWords search, AdWords display) at any one time. So you can’t sign up to our service if you already have a Google AdWords account that is currently active.
• You need to be aware of and agree that we need to pass certain information about you on to Google. This includes the information in the signup form, as well as your name, email, address and other contact information that we already hold about your business. By signing up, you agree that we can do this. We’ll also keep a copy of this information in accordance with our privacy and security policy.
• You need to comply with Google’s terms and conditions available online at https:// billing.google.com/payments/termsandconditionsfinder as if you were a “Customer”. This includes things like:
a. not advertising anything illegal.
b. granting Google the right to use your name and trademarks to advertise your business. c. complying with Google’s Editorial Guidelines, Trademark Guidelines and other policies (these are also available at https://support.google.com/adwordspolicy/). This includes Google’s rules on advertising alcohol, gambling, fireworks and other restricted products and Services.
• You need to be aware Google also has rules about the content of any advertisement and has a general right to reject or remove any advertisement and update or change the Google AdWords programme at any time. If Google tells us to do something, we will comply, and make the appropriate changes on behalf of you our client.
If your Google AdWords or Google Display campaign is being run on the Sky Media’s Master MCC Account then Sky Media own and have full control and rights over all data and information in the campaign however if you choose to cancel your service with Sky Media we will send you a final report with your campaigns performance, Key Words, Clicks, Impressions etc (On request).
• While we make best efforts to manage the campaign in line with your budget, the exact spend with Google over any month will vary according to market conditions and the number of days in a month. In the event of over/underspend, we will endeavour to adjust the spend accordingly to compensate. This spending adjustment will only have a short-term impact on performance.
Facebook Advertising Note:
The terms below are in addition to those terms in Parts A and B above:
What we’ll provide:
• Sky Media will place advertisements for your business on the Facebook platform on your behalf.
• Once your Sky Media Facebook Advertising campaign is up and running, we’ll then modify and optimise it to try to deliver the best traffic and interaction for your spend. While we will do our best to optimise your results, we cannot provide any guarantees or warranties regarding the results of your Sky Media Facebook Advertising campaign.
• Campaign performance updates on request.
What you need to do:
• Sign off content and images (where needed) in a prompt manner as requested by Sky Media.
• Please be aware each social media site is governed by its own terms and conditions, which change from time to time. When we create an account for you on Facebook we are acting as your agent and accept those terms and conditions on your behalf. Here are links to the terms and conditions of Facebook for your information:
• You agree to Sky Media using your password(s) for Facebook as your agent to the extent required to carry out the Sky Media Social services and agree to make us admin of and give us access to your page.
Important information you need to know:
• When you cancel your Sky Media Facebook Advertising we will then remove your advertisements from the Facebook Advertising programme as soon as reasonably possible after we get your termination notice and have verified that it is genuine.
• Sky Media may not be able to provide your Facebook Advertising campaign for the full fixed term. For example, Facebook might terminate the programme partially through a term. If this happens, we’ll refund you the proportional amount of the management fee for your Facebook Advertising that you have already paid.
• You don’t “own” your Facebook Advertising, advertisements or keywords. If you no longer want a Facebook advertising campaign from Sky Media, we can transfer your Facebook advertisements, targeting lists or keywords to you. There is a packaging fee for this ($100- $250 + GST) depending on the time it takes.
• Your products include the advertising spend paid to Facebook, and a management fee that we keep for setting up and managing your Facebook advertising campaign.
• The management fee is paid to Sky Media and the Facebook portion is paid via your credit card directly to Facebook.
• It is your responsibility to ensure the credit card linked to your Facebook campaign is maintained and to update us if the credit card is cancelled. The Sky Media Management fee for the campaign will still apply if the credit card is not maintained.
• Facebook will deduct your monthly spend off your credit card at the end of each month according to its terms and conditions.
Charges (Legacy product)
• Your fixed budget covers the fees we pay to Facebook and a management fee that we keep for setting up and managing your Sky Media Facebook Advertising campaign. In accordance with this agreement typically 60% of your fixed budget will be spent on advertising with Facebook unless we agree with you otherwise.
• While we make best efforts to manage the campaign in line with your budget, the exact spend with Facebook over any month will vary depending on the market conditions and the number of days in a month. In the event of over/underspend, we will endeavour to adjust the spend accordingly to compensate. This spending adjustment will only have a short-term impact on performance.