Service Terms of Use

Date 19 October 2021

The Website Guardians agrees to provide, and you agree to buy, The Website Guardians website security and maintenance services, on these Terms of Use.  These Terms are binding on any use of the Services and apply to you from the time that The Website Guardians provides you with access to the Services.

By registering to use the Services you acknowledge that you have read and understood these Terms and have the authority to act on behalf of any person for whom you are using the Services. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Services.

  1. SERVICES
    1. Grant: The Website Guardians grants you the right to use the Services according to your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to these Terms.
    2. General:  The Website Guardians must use reasonable efforts to provide the Services:
      1. in accordance with these Terms and New Zealand law;
      2. exercising reasonable care, skill and diligence; and
      3. using suitably skilled, experienced and qualified personnel.
    3. Availability and performance:
      1. Uptime: Subject to clause 1.3(b), The Website Guardians will use reasonable efforts to ensure the Services are available on a 24/7 basis or during business hours, depending on the nature of the Services.  However, it is possible that on occasion the Services may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure.  The Website Guardians will use reasonable efforts to notify you by email with advance details of any unavailability.
      2. Third party features: Through the use of web services and APIs, the Services interoperate with a range of third party services features.  The Website Guardians 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, The Website Guardians may cease to make available that feature to you.  To avoid doubt, if The Website Guardians exercises its right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.
      3. Security and Updates: The Website Guardians will use best efforts to ensure the Services are effective it will not always be possible to prevent security breaches and malware installation. 
  2. CLIENT OBLIGATIONS
    1. General use:  You and your personnel must:
      1. use the Services in accordance with these Terms solely for:
        1. your own internal business purposes; and
        2. lawful purposes;  and
      2. not resell or make available the Services to any third party, or otherwise commercially exploit the Services.
    2. Client Account: By creating an account with us you:
      1. Consent to us conducting verification and security procedures in respect of the information provided during the registration process; and
      2. Agree to keep any login and account details confidential and secure.
      3. You confirm that all information and details you provide us are true, accurate and up to date in all respects and at all times.  You can update and correct your details at any time via your dashboard.
    3. Access to your website: you will allow The Website Guardians to have the necessary access to your website that it can provide the Services. This includes the ability to install plug-ins, monitoring tolls and an internal dashboard.
    4. Client access conditions:  When accessing the Services, you and your personnel must:
      1. not impersonate another person or misrepresent authorisation to act on behalf of others or The Website Guardians;
      2. correctly identify the sender of all electronic transmissions;
      3. not attempt to undermine the security or integrity of the Underlying Systems; 
      4. not use, or misuse, the Services in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Services;
      5. not attempt to view, access or copy any material or data other than: 
        1. that which you are authorised to access; and
        2. to the extent necessary for you and your personnel to use the Services in accordance with this Agreement;
      6. neither use the Services 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
      7. comply with any terms of use on the Website, as updated from time to time by The Website Guardians.
    5. Personnel:  
      1. You may authorise any member of your personnel to be a Permitted User, in which case you will provide The Website Guardians via your The Website Guardians Partner with the Permitted User’s name and other information that The Website Guardians reasonably requires in relation to the Permitted User.
      2. You must procure each Permitted User’s compliance with clauses 2.1 and 2.2 and any other reasonable condition notified by The Website Guardians to you.
      3. A breach of any term of these Terms by your personnel is deemed to be a breach of these Terms by you.
    6. Authorisations:  You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services. 
  3. DATA 
    1. Supplier access to Data:  
      1. You acknowledge that:
        1. The Website Guardians may require access to the Data to exercise its rights and perform its obligations under these Terms; and
        2. to the extent that this is necessary but subject to clause 6, The Website Guardians may authorise its personnel to access the Data for this purpose. 
      2. You must arrange all consents and approvals that are necessary for The Website Guardians to access the Data as described in clause 3.1(a).
    2. Analytical Data:  You acknowledge and agree that:
      1. The Website Guardians may:
        1. use Data and information about your use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); and
        2. use Analytical Data for The Website Guardians’ internal research and product development purposes and to conduct statistical analysis and identify trends and insights.
      2. The Website Guardians’ rights under clause 3.2(a) above will survive termination of expiry of these Terms; and
      3. title to, and all Intellectual Property Rights in, Analytical Data is and remains The Website Guardians’ property.
    3. Agent:  
      1. You acknowledge and agree that to the extent Data contains Personal Information, in collecting, holding and processing that information through the Services, The Website Guardians is acting as your agent for the purposes of the Privacy Act 220 and any other applicable privacy law.
      2. You must obtain all necessary consents from the relevant individual to enable The Website Guardians to collect, use, hold and process that information in accordance with these Terms.
    4. Backups of Data:  While The Website Guardians will take standard industry measures to back up all Data stored using the Services, you agree to keep a separate back-up copy of all Data uploaded by you onto the Services.
    5. Third Party Services: In some cases the Services require The Website Guardians to implement third-party services. In relation to the third-party services you agree that:
      1. As a result of the implementation the third-party services may access certain information about your account with The Website Guardians. 
      2. The Website Guardians does not send, receive or store your passwords for The Website Guardians Software or any third-party services.
      3. That you are responsible for any Data may be shared with the third-party services and the purposes for which the third-party services require access. The Website Guardians will not be responsible for any use, disclosure, creation, modification or deletion of Data that is transmitted to, accessed or enacted by, a third-party services.
    6. International storage of Data:  You agrees that The Website Guardians may store Data (including any Personal Information) in secure servers in Australia, New Zealand and the European Union and may access that Data (including any Personal Information) in Australia, New Zealand and the European Union from time to time.
    7. Indemnity:  You indemnify The Website Guardians against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by The Website Guardians’ 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.
  4. FEES
    1. Fees:  You must pay the Fees. Fees are in New Zealand dollars and exclude Goods and Service Tax (GST).
    2. Payment: Fees are to be paid either by credit card or bank deposit, as we may require.  “Credit Card payments are processed via Stripe and are subject to Stripes Terms and Conditions. By signing up to the Service you authorise us to collect ongoing payments via Stripe from the Credit Card you provide. Agreement, as the same may be modified by Stripe from time to time. As a condition of the Website enabling payment processing services through Stripe, you agree to provide to the us accurate and complete information about you, and you authorise us to share it and transaction information related to your use of the payment processing services provided by Stripe.
    3. Increases: The Website Guardians and your The Website Guardians Partner (as applicable) may increase the Fees as follows:
      1. By giving at least 30 days’ notice, The Website Guardians may increase the Fees once each Year (but not the first Year) at its discretion.  Fees updated under this clause are deemed to be the Fees.
      2. If you do not wish to pay the increased Fees, you may terminate these Terms on no less than 30 days’ notice to us or your The Website Guardians Partner (as applicable).  If you do not terminate these Terms in accordance with this clause, you are deemed to have accepted the increased Fees.
  5. INTELLECTUAL PROPERTY 
    1. Ownership:  
      1. Subject to clause 5.1(b), title to, and all Intellectual Property Rights in, the Services, the Website, and all Underlying Systems is and remains the property of The Website Guardians (and its licensors).  You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
      2. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property.  You grant The Website Guardians 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. 
    2. Know-how:  To the extent not owned by The Website Guardians, you grant The Website Guardians a royalty-free, transferable, irrevocable and perpetual licence to use for The Website Guardians’ own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by The Website Guardians in the provision of the Services.
    3. Feedback:  If you provide The Website Guardians with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
      1. 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 The Website Guardians; and
      2. The Website Guardians may use or disclose the feedback for any purpose.
  6. CONFIDENTIALITY
    1. Security:  Each party must, unless it has the prior written consent of the other party:
      1. keep confidential at all times the Confidential Information of the other party; 
      2. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
      3. 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 6.1(a) and 6.1(b).
    2. Permitted disclosure:  The obligation of confidentiality in clause 6.1 does not apply to any disclosure or use of Confidential Information:
      1. for the purpose of performing these Terms or exercising a party’s rights under these Terms;
      2. required by law (including under the rules of any stock exchange);
      3. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
      4. which was rightfully received by a party to these Terms from a third party without restriction and without breach of any obligation of confidentiality; or
      5. by The Website Guardians 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 The Website Guardians enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 6.
  7. WARRANTIES
    1. Mutual warranties:  Each party warrants that it has full power and authority to enter into and perform its obligations under these Terms which, when signed, will constitute binding obligations on the warranting party.
    2. No implied warranties:  To the maximum extent permitted by law:
      1. The Website Guardians’ 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 six months’ Fees applicable to you; and
      2. The Website Guardians makes no representation concerning the quality of the Services and does not promise that the Services will:
        1. meet your requirements or be suitable for a particular purpose; or  
        2. be secure, free of viruses or other harmful code, uninterrupted or error free.
    3. Consumer Guarantees Act:  You agree and represent that you are acquiring the Services, and entering these Terms, for the purposes of trade.  The parties agree that:
      1. 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
      2. it is fair and reasonable that the parties are bound by this clause 7.3.
    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 The Website Guardians for any breach of that condition or warranty is limited to the Fees paid by you in the previous 6 months.
  8. LIABILITY
    1. Maximum liability:  The maximum aggregate liability of The Website Guardians 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 Year exceed an amount equal to the Fees paid by you under these Terms in the previous six month period.  The cap in this clause 8.1 includes the cap set out in clause 7.2(a).
    2. Unrecoverable loss:  Neither party is liable to the other under or in connection with these Terms or the Services for any: 
      1. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
      2. consequential, indirect, incidental or special damage or loss of any kind.
    3. Unlimited liability:  
      1. Clause 8.2 does not apply to limit your liability:
        1. to pay the Fees; or
        2. under the indemnity in clause 3.7.
    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.
    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.
  9. TERM, TERMINATION AND SUSPENSION
    1. Termination for convenience:  You may terminate this Agreement on at least 30 days’ prior written notice to us or to your The Website Guardians Partner (as applicable). 
    2. Termination rights:  
      1. We may terminate this Agreement at any time at our complete discretion if we do not wish to support your website. If we have not provided you with any of the Services we will refund any Fee payment you have made. 
      2. Either of us may, by notice to the other party, immediately terminate this Agreement if the other party:
        1. breaches any material provision of the Agreement and the breach is not:
          • remedied within 14 days of the receipt of a notice from the first party requiring it to remedy the breach; or
          • capable of being remedied;
        2. 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; or
        3. is unable to perform a material obligation under this Agreement for 30 days or more due to Force Majeure.
    3. Consequences of termination or expiry:
      1. On termination or expiry of this Agreement we will remove all the plug-ins and monitoring tools we installed on commencement.
      2. Termination or expiry of this Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.
      3. On termination or expiry of this Agreement, you must pay all outstanding Fees provided prior to that termination or expiry.
      4. 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 9.3(e), 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.  
      5. At any time prior to one month after the date of termination or expiry, you may request: 
        1. a copy of any Data stored using the Services, provided that you pay The Website Guardians’ reasonable costs of providing that copy.  On receipt of that request, The Website Guardians must provide a copy of the Data in a common electronic form.  The Website Guardians does not warrant that the format of the Data will be compatible with any software; and/or
        2. deletion of the Data stored using the Services, in which case The Website Guardians must use reasonable efforts to promptly delete that Data.  

To avoid doubt, The Website Guardians is not required to comply with clause 9.3(e)(i) to the extent that you previously requested deletion of the Data.

  1. Obligations continuing:  Clauses which, by their nature, are intended to survive termination or expiry of these Terms, including clauses 3.7, 5, 6, 8, 9.4, 9.4 and 10, continue in force.   
  2. Rights to restrict:  Without limiting any other right or remedy available to The Website Guardians, The Website Guardians may restrict or suspend your access to the Services if The Website Guardians considers that you (including any of your personnel) have:
    1. undermined, or attempted to undermine, the security or integrity of the Services or any Underlying Systems;
    2. used, or attempted to use, the Services:
      1. for improper purposes; or
      2. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Services; 
    3. 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
    4. otherwise materially breached these Terms including failed to pay the Fees.
  3. Process:
    1. The Website Guardians must notify you where it restricts or suspends your access under clause 9.5.
    2. Clause 9.3(e)(i) will not apply to the extent that it relates to Data deleted or removed under clause 9.5.
  1. GENERAL 
    1. Force Majeure:  Neither party is liable to the other for any failure to perform its obligations under this Agreement to the extent caused by Force Majeure, provided that the affected party:
      1. immediately notifies the other party and provides full information about the Force Majeure;
      2. uses best efforts to overcome the Force Majeure; and
      3. continues to perform its obligations to the extent practicable.
    2. Rights of third parties:  No person other than The Website Guardians and you have any right to a benefit under, or to enforce, this Agreement.
    3. Waiver:  To waive a right under these Terms, that waiver must be in writing and signed by the waiving party.
    4. Independent contractor:  Subject to clause 3.3, The Website Guardians is an independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
    5. Notices:  A notice given by a party under these Terms must be delivered to the other party via email using the email address notified by the other party for this purpose.  
    6. Severability:  
      1. 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.
      2. If modification under clause 10.6(a) 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.
    7. Variation:  Subject to clause 4.3, The Website Guardians may vary these Terms by written notice to you. The variations will be effect as from the date of the written notice.
    8. Entire agreement:  This Agreement 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 subject matter of these Terms 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 10.8.
    9. Subcontracting and assignment:  
      1. You may not assign, novate, subcontract or transfer any right or obligation under these Terms without the prior written consent of The Website Guardians, that consent not to be unreasonably withheld.  You remain liable for its obligations under these Terms despite any approved assignment, subcontracting or transfer.  Any assignment, novation, subcontracting or transfer must be in writing.
      2. Where you are a company any change of control of that company is deemed to be an assignment for which The Website Guardians’ prior written consent is required under clause 10.9(a).  In this clause change of control means any transfer of shares or other arrangement affecting you or any member of your group which results in a change in your effective control.
    10. 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.
  2. Definitions
    1. Agreement means your subscription for the Services, and these Terms and Conditions.
    2. 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, these Terms.  The Website Guardians’ Confidential Information includes Intellectual Property owned by The Website Guardians (or its licensors), including The Website Guardians Software.  Your Confidential Information includes the Data.
    3. Data means all data, content, and information (including Personal Information) owned, held, used or created by you or on behalf that is accessed using the Services.
    4. Fees means the monthly fees payable by you as set out in your agreement with us or your The Website Guardians Partner.
    5. Force Majeure means an event that is beyond the reasonable control of a party, excluding:
      1. an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
      2. a lack of funds for any reason.
    6. Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks 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.
    7. Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
    8. Payment Terms means the payment terms notified to you from time to time.
    9. Permitted Users means those of your personnel who are authorised to access and use the Services on your behalf in accordance with clause 2.5.
    10. Services means The Website Guardians’ website security and maintenance services.  Included in the Services are:
      1. Ongoing backups, monitoring, malware scans and removal and other services as stated in your subscription agreement;
      2. Reasonable use of technical support and support communications as stated in your subscription agreement.
    11. Start Date and End Date mean the dates stated in your agreement with your The Website Guardians Partner.
    12. The Website Guardians Partner means the third party who administers your access to the Services (as applicable).
    13. The Website Guardians Software means the software owned by The Website Guardians (and its licensors) that is used to provide the Services.
    14. Underlying Systems means The Website Guardians software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
    15. Year means a 12 month period starting on the Start Date or the anniversary of that date.