Welcome to Pop That, the multi-disciplinary and collaborative agency designed for small businesses, startups, agencies and departments within enterprises. These Terms of Business are intended to explain our obligations as a service provider and Your obligations as a customer. Please read them carefully.
These Terms are binding on any use of the Service and apply to You from the time that Pop That provides You with access to the Service.
By signing up to use the Service 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 Service. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Service.
These Terms were last updated on 1 August 2017.
"Pop That" means Pop That Limited, which is a registered New Zealand company.
Apps Add-ons" means the Pop That or third-party sites, software, apps and other services that incur a monthly or regular cost payable by You.
"Confidential Information" includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
"Customer" means the person who signs up to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
"Data" means any data inputted by You or with Your authority into the Website.
"Fee" means the monthly fee (excluding any taxes and duties) payable by You in accordance with the fee schedule set out in our agreement or on the Website (which Pop That may change from time to time on notice to You).
"Intellectual Property Right" means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
"Invited User" means any person or entity, other than the Customer, that uses the Service with the authorisation of the Customer from time to time.
"Sealed Services" means the proprietary selection of sites, software, apps and other services we use to provide our Website and Services.
"Service" means the online and offline sales and marketing management services made available (as may be changed or updated from time to time by Pop That) in person or via the Website.
"You" means the Customer, and where the context permits, an Invited User. "Your" has a corresponding meaning.
"Website" means the Internet sites at the domain www.popthat.nz or any other sites operated or used by Pop That.
Use of Software and Service
Pop That grants You the right to access and use the Service via the Website and in person with the particular user roles available to You according to Your contract type. This right is non-exclusive, non-transferable, and limited by and subject to this Agreement. You acknowledge and agree that, subject to any applicable written agreement between the Customer and the Invited Users, or any other applicable laws:
the Customer determines who is an Invited User and what level of user role access to the relevant organisation and Service that Invited User has;
the Customer is responsible for all Invited Users’ use of the Service;
the Customer controls each Invited User’s level of access to the relevant organisation and Service at all times and can revoke or change an Invited User’s access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be;
if there is any dispute between a Customer and an Invited User regarding access to any organisation or Service, the Customer shall decide what access or level of access to the relevant Data or Service that Invited User shall have, if any.
An invoice for the Service will be issued each month starting in the month You first signed up for a Service. All invoices will include the Fees for the current period one month of use. Pop That will continue invoicing You monthly until this Agreement is terminated in accordance with clause 8.
All Pop That invoices will be sent to You, or to a Billing Contact whose details are provided by You, by email or Xero.com Network. You must pay or arrange payment of all amounts specified in any invoice by the due date for payment and are payable within 10 days of the invoice date. You are responsible for payment of all taxes and duties in addition to the Fee. Please note we cannot finance your credit; therefore, late payments will accrue an interest charge of 12.5% per annum compounding per month.
Preferential pricing or
You may from time to time be offered preferential pricing or discounts for the Fees as a result of the number of organisations that You have added to the Service or that have been added with Your authority or as a result of Your use of the Service ('Organisations'). Eligibility for such preferential pricing or discounts is conditional upon Your acceptance of responsibility for payment of any Fees in relation to all of Your Organisations. Without prejudice to any other rights that discounts: Pop That may have under these Terms or at law, Pop That reserves the right to render invoices for the full (non-discounted) Fees due or suspend or terminate Your use of the Service in respect of any or all of Your Organisations in the event that any invoices for those Fees are not paid in full by the due date for payment.
You must only use the Service and Website for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by Pop That or condition posted on the Website. You may use the Service and Website on behalf of others or in order to provide services to others but if You do so you must ensure that You are authorised to do so and that all persons for whom or to whom services are provided comply with and accept all terms of this Agreement that apply to You.
Automated data delivered into Your Pop That account:
Where available, automated account data feeds are generally provided to You free of charge where Pop That incurs no charges. However, Pop That reserves the right to pass on any charges related to the provision of third party data on a case-by-case basis at Pop That's sole discretion. Pop That would first inform You via email to indicate what those charges are likely to be (as such charges may vary depending on Your Third Party Provider and Your volume and complexity of feeds). You have the option to decide to discontinue use of automated feeds at any time. To exercise this option, you must give Pop That sufficient prior notice of which automated data feeds you want to discontinue. Upon receiving such notice Pop That will arrange for such feeds to be terminated in accordance with each Third Party Provider usual practices.
Where you elect to use charged for third party App Add-ons these will be passed on to You at a rounded up rate to the nearest dollar. We do this to avoid time-consuming foreign exchange rate conversions.
1. You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify Pop That of any unauthorised use of Your passwords or any other breach of security and Pop That will reset Your password and You must take all other actions that Pop That reasonably deems necessary to maintain or enhance the security of Pop That's computing systems and networks and Your access to the Services.
2. As a condition of these Terms, when accessing and using the Services, You must:
i. not attempt to undermine the security or integrity of Pop That's computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
ii. not use, or misuse, the Services in any way which may impair the functionality of the Services or Website, or other systems used to deliver the Services or impair the ability of any other user to use the Services or Website;
iii. not attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
iv. not transmit, or input into the Website, any: files that may damage any other person's computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
v.not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs, systems or processes used to deliver the Services or to operate the Website and Services except as is strictly necessary to use either of them for normal operation.
Use of the Service may be subject to limitations, including but not limited to monthly activity volumes and the number of calls You are permitted to make against Agencies application programming interface and use of Third Party Providers. Any such limitations will be advised.
As a condition of these Terms, if You use any communication tools available through the Website or any Online or Offline site (such as any forum, chat room or message centre), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Services, including (but not limited to): offers of goods or services for sale, unsolicited commercial e-mail, files that may damage any other person's computing devices or software, content that may be offensive to any other users of the Services or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).
When You make any communication on the Website or any Online or Offline site, You represent that You are permitted to make such communication. Pop That is under no obligation to ensure that the communications on the Website or any Online or Offline site are legitimate or that they are related only to the use of the Services. As with any other web-based forum, You must exercise caution when using the communication tools available on the Website or any Online or Offline site. However, Pop That does reserve the right to remove any communication at any time in its sole discretion.
You indemnify Pop That against all claims, costs, damage and loss arising from Your breach of any of these Terms or any obligation You may have to Pop That, including (but not limited to) any costs relating to the recovery of any Fees that are due but have not been paid by You.
Confidentiality and Privacy
Unless the relevant party has the prior written consent of the other or unless required to do so by law:
1. Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
2. Each party's obligations under this clause will survive termination of these Terms.
3. The provisions of clauses 4.1.1 and 4.1.2 shall not apply to any information which:
i. is or becomes public knowledge other than by a breach of this clause;
ii. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
iii. is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
iv. is independently developed without access to the Confidential Information.
General: Title to, and all Intellectual Property Rights in the Services, the Website and any documentation relating to the Services remain the property of Pop That (or its licensors).
Ownership of Data: Title to, and all Intellectual Property Rights in, the Data remain Your property. However, Your access to the Data is contingent on full payment of the Pop That Fees when due. You grant Pop That a licence to use, copy, transmit, store, and back-up Your information and Data for the purposes of enabling You to access and use the Services and for any other purpose related to the provision of services to You.
Backup of Data: You must maintain copies of all Data inputted into the Service. Pop That adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of Data. Pop That expressly excludes liability for any loss of Data no matter how caused.
Third-party applications and your Data: If You enable third-party applications for use in conjunction with the Services, You acknowledge that Pop That may allow the providers of those third-party applications to access Your Data as required for the interoperation of such third-party applications with the Services. Pop That shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
Warranties and Acknowledgements
You warrant that where You have registered to use the Service on behalf of another person, You have the authority to agree to these Terms on behalf of that person and agree that by registering to use the Service You bind the person on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
You acknowledge that:
You are authorised to use the Services and the Website and to access the information and Data that You input into the Website, including any information or Data input into the Website by any person you have authorised to use the Service. You are also authorised to access the processed information and Data that is made available to You through Your use of the Website and the Services (whether that information and Data is Your own or that of anyone else).
Pop That has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You. If You use the Services or access the Website on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise) you agree that:
i. You are responsible for ensuring that You have the right to do so;
ii. You are responsible for authorising any person who is given access to information or Data, and you agree that Pop That has no obligation to provide any person access to such information or Data without Your authorisation and may refer any requests for information to You to address; and
iii. You will indemnify Pop That against any claims or loss relating to:
i. Pop That's refusal to provide any person access to Your information or Data in accordance with these Terms,
ii. Pop That making available information or Data to any person with Your authorisation.
The provision of, access to, and use of, the Services is on an "as is" basis and at Your own risk.
Pop That does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including third party providers, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Services. Pop That is not in any way responsible for any such interference or prevention of Your access or use of the Services.
It is Your sole responsibility to determine that the Services meet the needs of Your business and are suitable for the purposes for which they are used.
You will not approach, attempt to "poach", hire or use Pop That staff and contractors. In the event you do this, a recruitment fee equal to 20% of the annualised costs or salary of that person will be paid by You as liquidated damages to Pop That within 30 days of the person completing any work for you.
You remain solely responsible for complying with all applicable laws. It is Your responsibility to check that storage of and access to your Data via the Services and the Website will comply with laws applicable to you (including any laws requiring you to retain records).
Pop That gives no warranty about the Services. Without limiting the foregoing, Pop That does not warrant that the Services will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
You warrant and represent that You are acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services, the Website or these Terms.
Limitation of Liability
To the maximum extent permitted by law, Pop That excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.
If You suffer loss or damage as a result of Pop That's negligence or failure to comply with these Terms, any claim by You against Pop That arising from Pop That's negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Fees paid by You in the previous 1 month.
If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with Clause 8.
These Terms will continue for the period covered by the Fee paid or payable under clause 3.1. At the end of each billing period, these Terms will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Fee when due. Either party can terminate the Agreement and these Terms by giving written notice of termination to the other party. If You terminate these Terms You shall be liable to pay all relevant Fees for the then current period and the next two periods.
1. breach any of these Terms (including, without limitation, by non-payment of any Fees) and do not remedy the breach within 14 days after receiving notice of the breach if the breach is capable of being remedied;
2. breach any of these Terms and the breach is not capable of being remedied (which includes (without limitation) any breach of clause 3.4 or any payment of Fees that are more than 30 days overdue); or
3. You or Your business become insolvent or Your business goes into liquidation or has a receiver or manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction,
Pop That may take any or all of the following actions, at its sole discretion:
1. Terminate this Agreement and Your use of the Services and the Website;
2. Suspend for any definite or indefinite period of time, Your use of the Services and the Website;
3. Suspend or terminate access to all or any Data.
4. Take either of the actions in sub-clauses (1), (2) and (3) of this clause 8(4) in respect of any or all other persons whom You have authorised to have access to Your information or Data.
For the avoidance of doubt, if payment of any invoice for Fees due in relation to any of Your Billing Contacts, Billing Plans or any of Your Organisations (as defined in clause 3) is not made in full by the relevant due date, Pop That may: suspend or terminate Your use of the Service, the authority for all or any of Your Organisations to use the Service, or Your rights of access to all or any Data.
You don’t “own” your Pop That built websites:
1. If we provide You with a business website then we can provide you with a Migration Pack for a fee of no less than $2,967+GST. Where You need a Migration Pack You will give notice of this at the notice of termination.
2. All links from our Website and Services and related systems to any third party sites such as Facebook and Google will immediately stop.
3. You must immediately stop using our Website and Services, and we will immediately stop your access.
4. Upon Termination of this Agreement: Service such as FaceBook or GoogleAdWords advertisements or keywords. Therefore we do not transfer the Website or Services. For example for Facebook or Google AdWords advertising campaigns, we do not transfer your Facebook ads or Google AdWords advertisement, targeting lists or keywords to You.
5. As Pop That Websites and Services are provided as Sealed Services the software, apps and other services we use is confidential information. You will not be given the names, logins or access to these. At no time during or after this Agreement terminates will you obtain any proprietary interest in relation to any of these. You merely obtain a limited, non-exclusive license to use those our Websites and Services which we allow you to purchase the right to use as part of the Services. You must not attempt to copy in any way, replicate, or reverse engineer, decompile, or otherwise misuse our Website or Services at any time. You must not use our name, trademarks, brands or logos in any way without our prior written consent.
6. Should you wish a transfer of the portion of the Website and Services provided to You, You can request this in writing. We are under no obligation whatsoever to accept or deliver this to you. If we mutually agree to this in writing then the fee shall not be less than $2,967+GST.
7. Backup of Your Data: Due to limitations of third party providers, social media sites and other limitations it is not possible to create a full backup of your data. On termination of this Agreement, we will take reasonable measures to provide you with data for the last month. We recommend you copy or backup your data as you go if this is important to you.
Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will:
1. remain liable for any accrued charges and amounts which become due for payment before or after termination; and
2. immediately cease to use the Services and the Website.
Expiry or termination:
Clauses 3.1, 3.7, 4, 5, 6, 7, 8 and 10 survive the expiry or termination of these Terms.
1. Technical Problems:
In the case of technical problems, You must make all reasonable efforts to investigate and diagnose problems before contacting Pop That. If You still need technical help, please check the support provided online by Pop That on the Website or failing that email us at firstname.lastname@example.org.
2. Service availability:
Whilst Pop That intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable due to third party providers or to permit maintenance or other development activity to take place.
If for any reason Pop That has to interrupt the Services for longer periods than Pop That would normally expect, Pop That will use reasonable endeavours to publish in advance details of such activity on the Website.
1. Entire agreement:
If either party waives any breach of these Terms, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause beyond its reasonable control. This clause does not apply to any obligation to pay money.
4. No Assignment:
You may not assign or transfer any rights to any other person without Pop That's prior written consent.
5. Governing law and jurisdiction:
No matter where the information or Data You are accessing using the Services and the Website is at the time that You accept these terms and New Zealand law governs this Agreement and You submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement.
If any part or provision of these Terms is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of this Agreement will be binding on the parties.
Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Pop That must be sent to email@example.com (with the subject containing "Official Notice") or to any other email address notified by email to You by Pop That. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
8. Rights of Third Parties:
A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.