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1.1) These Terms apply to your use of the Service (as that term is defined below). By setting up an account
1.2) If you do not agree to these Terms, you are not authorised to access and use the Service, and you must immediately stop doing so.
2.1) We may change these Terms at any time by notifying you of the change by email or by posting a notice on the Website. Unless stated otherwise, any change takes effect from the date set out in the notice. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Service from the date on which the Terms are changed, you agree to be bound by the changed Terms.
2.2) These Terms were last updated on 28th April 2017.
In these Terms:
Blerb Limited Software means the software owned by us (and our licensors) that is used to provide the Service.
Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Service. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the Blerb Limited Software. Your Confidential Information includes the Data.
Data means all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Service.
Fees means the applicable fees set out on our pricing page on the Website at http://blerbhq.com/pricing or as agreed otherwise in writing between you and us, as may be updated from time to time in accordance with clause 7.5.
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
including and similar words do not imply any limit.
Intellectual Property Rights includes copyright and all rights 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.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
a party includes that party’s permitted assigns.
Permitted Users means your personnel who are authorised to access and use the Service on your behalf in accordance with clause 5.3.
a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
personal information means information about an identifiable, living person.
personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.
Service means the service having the core functionality described on the Website, as the Website is updated from time to time.
Start Date means the date that you set up an account
Underlying Systems means the Blerb Limited Software, IT solutions, systems and networks (including software and hardware) used to provide the Service, including any third party solutions, systems and networks.
We, us or our means Blerb Limited, company number 6274287.
Website means the internet site at http://blerbhq.com, or such other site notified to you by us.
Year means a 12-month period starting on the Start Date or the anniversary of that date.
You or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
Words in the singular include the plural and vice versa.
A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
4.1) We must use reasonable efforts to provide the Service:
4.2) Our provision of the Service to you is non-exclusive. Nothing in these Terms prevents us from providing the Service to any other person.
4.3) Subject to clause 4.4, we must use reasonable efforts to ensure the Service is available during normal business hours in New Zealand. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. We must use reasonable efforts to publish on the Website advance details of any unavailability.
4.4) Through the use of web services and APIs, the Service interoperates with a range of third party service features. We do 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, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.
5.1) You and your personnel must:
5.2) When accessing the Service, you and your personnel must:
5.3) Without limiting clause 5.2, no individual other than a Permitted User may access or use the Service. You may authorise any member of your personnel to be a Permitted User, in which case you must provide us with the Permitted User’s name and other information that we reasonably require in relation to the Permitted User. You must procure each Permitted User’s compliance with clauses 5.1 and 5.2 and any other reasonable condition notified by us to you.
5.4) A breach of any of these Terms by your personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of these Terms by you.
5.5) You are responsible for procuring all licences, authorisations and consents required for you and your personnel to use the Service, including to use, store and input Data into, and process and distribute Data through, the Service.
6.1) You acknowledge that:
6.2) You must arrange all consents and approvals that are necessary for us to access the Data as described in clause 6.1.
6.3) You acknowledge and agree that to the extent Data contains personal information, in collecting, holding and processing that information through the Service, we are acting as your agent for the purposes of the Privacy Act 1993 and any other applicable privacy law. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.
6.4) While we will take standard industry measures to back up all Data stored using the Service, you agree to keep a separate back-up copy of all Data uploaded by you onto the Service.
6.5) You agree that we may store Data (including any personal information) in secure servers in Australia and USA and may access that Data (including any personal information) in New Zealand from time to time.
6.6) You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our 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.
7.1) You must pay us the Fees.
7.2) We will provide you with valid GST tax invoices on a monthly basis prior to the due date for payment.
7.3) You must pay the Fees:
7.4) We may increase the Fees by giving at least 30 days’ notice. If you do not wish to pay the increased Fees, you may terminate these Terms and your right to access and use the Service on no less than 10 days’ notice, provided the notice is received by us before the effective date of the Fee increase. If you do not terminate these Terms and your right to access and use the Service in accordance with this clause, you are deemed to have accepted the increased Fees.
8.1) Subject to clause 8.2, title to, and all Intellectual Property Rights in, the Service, the Website, and all Underlying Systems is and remains the property of us (and our licensors). You must not dispute that ownership.
8.2) Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant us 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 our rights and performance of our obligations in accordance with these Terms.
8.3) To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
8.4) If you provide us with ideas, comments or suggestions relating to the Service or Underlying Systems (together feedback):
8.5) You acknowledge that the Service may link to third party websites or feeds that are connected or relevant to the Service. Any link from the Service does not imply that we endorse, approve or recommend, or have responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, we exclude all responsibility or liability for those websites or feeds.
9.1) Each party must, unless it has the prior written consent of the other party:
9.2) The obligation of confidentiality in clause 9.1a does not apply to any disclosure or use of Confidential Information:
10.1) Each party warrants that it has full power and authority to enter into, and perform its obligations, under these Terms.
10.2) To the maximum extent permitted by law:
10.3) You agree and represent that you are acquiring the Service, and accepting these Terms, for the purpose of a business and that the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Service or these Terms.
10.4) 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, our liability for any breach of that condition or warranty is limited, at our option, to:
11.1) Our maximum aggregate liability under or in connection with these Terms or relating to the Service, 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 relating to the Service in the previous Year (which in the first Year is deemed to be the total Fees paid by you from the Start Date to the date of the first event giving rise to liability). The cap in this clause 11.1 includes the cap set out in clause 10.2a.
11.2) Neither party is liable to the other under or in connection with these Terms or the Service for any:
11.3) Clauses 11.1 and 11.2 do not apply to limit our liability under or in connection with these Terms for:
11.4) Clause 11.2 does not apply to limit your liability:
11.5) 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.
11.6) 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 or the Service.
12.1) Unless terminated under this clause 12, these Terms and your right to access and use the Service:
12.2) Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use the Service if the other party:
12.3) You may terminate these Terms and your right to access and use the Service in accordance with clause 7.5.
12.4) Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.
12.5) On termination of these Terms, you must pay all Fees for the provision of the Service prior to that termination.
12.6) No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.
12.7) Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of these Terms but subject to clause 12.8, 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.
12.8) At any time prior to one month after the date of termination, you may request:
To avoid doubt, we are not required to comply with clause 12.8a to the extent that you have previously requested deletion of the Data.
12.9 Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Service and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have:
13.1) Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.
13.2) No person other than you and us has any right to a benefit under, or to enforce, these Terms.
13.3) For us to waive a right under these Terms, that waiver must be in writing and signed by us.
13.4) Subject to clause 6.3, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
13.5) If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications.
13.6) These Terms, and any dispute relating to these Terms or the Service, 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 or the Service.
13.7) Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 6.6, 8, 9, 11, 12.4 to 12.8 and 13.6, continue in force.
13.8) If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.
13.9) Subject to clauses 2.1 and 7.5, any variation to these Terms must be in writing and signed by both parties.
13.10) These Terms set out everything agreed by the parties relating to the Service, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986.
13.11) You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.