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Gopher Terms

Terms of Use - Users

GOPHER GENERAL TERMS OF ADVERTISING
July 2013

These terms and conditions apply to all products the Client purchases from Gopher now and in the future. Not only do these terms give you certainty as to your rights and obligations, they also ensure we can focus on delivering the best possible service to you.

Each purchase incorporates these terms (“General Terms”) and any specific terms (“Specific Terms”) relating to each product.

Please read through the General Terms carefully to ensure you understand the terms that apply to your purchases. Thanks for jumping on board.

GENERAL TERMS

Interpretation

In these General Terms and any relevant Specific Terms, unless the context otherwise requires:

Charges - means the sums payable by the Client for the relevant Services, and any additional work done by Gopher from time to time, and may include additional administration fees, management fees, and non-refundable establishment fees together with any payment processing fees. All Charges are quoted exclusive of GST unless expressly stated otherwise.

Client - means the person, firm or company acquiring Services under these General Terms and any relevant Specific Terms.

General Terms – means the terms and conditions set out in this document, which govern the overall relationship between the Client and Gopher.

Gopher – means Gopher Limited, a company incorporated in New Zealand.

Intellectual Property Rights – means any patent, trademark, service mark, copyright, moral rights, right in a design, know-how, confidential information and all or any other intellectual or industrial property rights whether or not registered.

Services – means the products and services to be delivered by Gopher to the Client, as agreed from time to time.

Specific Terms – means the specific terms of delivery relating to one or more of the Services posted on Gopher’s website together with the payment terms in any relevant invoices.

Basis of Gopher's Service Delivery

  1. Gopher agrees to deliver the Services to the Client, as provided in clauses 12 to 17 below, and the Client agrees to pay the Charges, in accordance with these General Terms and any relevant Specific Terms.
  2. Where Services are acquired free of Charges via the submission of information and content online:
    • The person submitting the form and/or content warrants that they have the full power and authority of the Client to enter into these General Terms on behalf of the Client.
    • The person submitting the form agrees to be bound in the same manner as the Client, jointly and severally, for all the warranties, indemnities and obligations (not relating to Charges or payment) of the Client, and to be bound by the limitations of liability, in these General Terms.
    • For the avoidance of doubt, such Services will remain subject to these General Terms and any relevant Specific Terms.
  3. The Client agrees and acknowledges that:
    • Delivery of the Services may depend on the operation, rules and terms of conditions of service of a number of third party providers (for example, but without limitation, social media platforms such as Facebook, search engines, such as Google, and the like) and all Services are ultimately delivered subject to those constraints. The Client agrees that Gopher will not be under any obligation to deliver Services where and to the extent that such third party providers’ constraints render Gopher unable to deliver them.
    • Gopher uses the services of a number of third parties. They have their own terms and conditions, and the Client acknowledges that they have familiarised themselves with and agreed to all third party terms referred to in any Specific Terms.
    • Telecommunications systems may sometimes require downtime outside of Gopher’s control, and some or all of the Services may be unavailable from time to time for such reasons.
    • Gopher may refuse, reject or remove any content provided by the Client at any time from the Services, without prior notice, if Gopher reasonably believes the content, or use of the content, contravenes any law, infringes or is likely to infringe any rights of a third party or is misleading, inappropriate, unsuitable, offensive, obscene, defamatory or indecent.
    • Gopher cannot and does not make any warranty as to the consumer response to the Services, nor that the Client’s business, or the Services/results from them, will appear in any particular manner within any third party websites or services.
    • Gopher, in its absolute discretion, may determine the presentation of the Services and cannot guarantee the presentation of the Services in all the methods by which the content within them may be accessed (for example, without limitation, depending on the computers or other devices, operating systems, applications and browsers in use). Gopher will not be responsible for the incorrect appearance of any content within the Services, including without limitation:
      • the duration, nature, size, design and placement of any page, site or application;
      • the classification of business categories, keywords, regions and search criteria.
    • Gopher may use the Client’s content, including but not limited to its name, phone number, address and business description, for any of the Services including websites, mobile listings and applications, available from time to time and that Gopher may develop in the future. Gopher may include its trade marks and other proprietary content of Gopher within the Services, but Gopher does not endorse the Client’s goods or services. The Client authorizes Gopher to continue to use the Client’s content in such a manner following the expiry or termination of the relevant Services, unless the Client gives notice to Gopher to cease such use, and grants to Gopher all necessary licence and consent to any Intellectual Property Rights in the content necessary.
  4. All Intellectual Property Rights in any content produced by Gopher for the Client, except for those in any logos, designs, names and other material originally supplied by the Client, will vest absolutely in and remain the exclusive property of Gopher.
  5. The Client may not assign any of its rights under these General Terms or any relevant Specific Terms without the prior written consent of Gopher.
  6. These General Terms will apply to all Services in conjunction with any relevant Specific Terms. In case of any conflict or ambiguity between the General Terms and relevant Specific Terms, those Specific Terms shall prevail.
  7. Term

  8. Unless otherwise agreed, these General Terms apply from the time that the Client first agrees to purchase any Services by written, electronic or verbal means.
  9. Unless otherwise agreed, each of the Services will be provided for an initial period of 12 months from the date the Client agrees to purchase them.
  10. All warranties, indemnities or other provisions of these General Terms affecting the liability of the Client to Gopher, or the liability of Gopher or any other person to the Client or to any third party shall continue in force despite the expiry or termination of the Services, for whatever reason.
  11. Changes to the General Terms and Specific Terms

  12. Gopher may vary all or any part of the General Terms or the Specific Terms at any time by written notice to the Client.
  13. The Client’s continued use of the Services following a variation referred to in any notice under clause 10 becoming effective, or 7 calendar days after receipt of such notice, whichever is the later, will be deemed to constitute acceptance of the variation.
  14. Gopher’s Obligations

  15. Gopher will provide the Services to the Client.
  16. Gopher will use reasonable commercial endeavours to commence the Services within 4 weeks of receipt of payment or confirmation of a secure payment arrangement for the relevant Services, unless a different timescale is agreed between the parties.
  17. Gopher is not obliged to collect or create content for the Client, but may use existing content the Client has provided to Gopher or generate content from the Client’s website or (with the Client’s approval) a third party website for the Services. If Gopher cannot generate content from the Client’s website or a third party website and no content is provided to Gopher by the Client, Gopher will not be obliged to upload any content as part of the Services. The Specific Terms for the particular Services may define further requirements for content to be provided by the Client.
  18. Any content generated by the Client for use within the Services may be subject to Gopher’s approval process before that content is published. Gopher will use reasonable commercial endeavours to undertake any approval process within a reasonable time. Gopher is not obliged to provide proofs or mock-ups of the content for or appearance of the Services to the Client before they are published.
  19. Gopher will use reasonable commercial endeavours to ensure the Services accurately embody the approved content provided by the Client, or published on the Client’s website or a third party website (approved by the Client). Gopher will not be responsible for any errors that are within content approved by the Client or which arise from material provided by the Client or any third party, and will not be obliged to rectify any errors in any content posted or any other material within the Services unless the Client gives notice of them to Gopher.
  20. The Client may request that Gopher change any content within the Services at any time after they are first delivered, and Gopher will use reasonable commercial endeavours to comply with those requests. Gopher may levy reasonable additional Charges for such work in addition to the particular Charges for the Services.
  21. The Client’s Obligations

  22. The Client will pay the Charges in accordance with clause 23.
  23. The Client will:
    • provide Gopher with such text, artwork, information, logos, designs and any other material requested, and will do so in such formats and at such time or times, as may be reasonably required for Gopher to deliver the Services. The Client will be solely responsible for ensuring that such material is accurate and complete.
    • provide Gopher with accurate and complete answers to business profile questions in a timely manner to enable Gopher to deliver the Services.
    • obtain all necessary licences or consents that are required in connection with the use of names, logos, artwork and other material or content supplied by the Client for use within the Services.
  24. To the extent that the Client supplies Gopher with any original material in which the Client holds relevant Intellectual Property Rights, the Client grants a worldwide, perpetual, royalty-free licence to Gopher to publish, reproduce, adapt, and otherwise deal with and use without limitation any such material for the purposes of delivering the Services.
  25. Except in relation to content provided by the Client, the Client will not (and will not permit others to) reproduce the Services, any unused material prepared by Gopher, or other material in which Gopher holds Intellectual Property Rights, without Gopher’s prior written consent.
  26. The Client will not use a robot, spider, crawler, scraper or other unauthorised automated means of whatever nature to access the Services or Gopher’s website for any purpose.
  27. Payment

  28. The Client will pay the Charges in full, in advance, and free of any deduction or setoff whatsoever, in accordance with any relevant Specific Terms, by the due dates specified on the relevant invoices.
  29. Failure to Pay

  30. If the Client fails to pay Gopher any Charges owed by the relevant due date, or if any payment the Client has made to Gopher is declined or otherwise not received by Gopher, Gopher may do any of or all of the following:
    • charge interest on the unpaid amounts due (at the monthly rate of 2.5%) from the date the amount became due until it is paid in full;
    • charge any reasonable debt collection and legal costs incurred as a result of the Client’s failure to pay the amounts due;
    • charge a late payment administration fee of $15 per month for any month or part thereof that a due payment remains outstanding under any invoice;
    • suspend the relevant Services or terminate them in accordance with clause 30.b.; and
    • on-charge to the Client any dishonour or other fees arising from the Client’s failure to pay.
  31. Gopher will be under no obligation to continue to deliver any Services to the Client whilst there remain any Charges or other sums due from Client but unpaid in respect of those Services.
  32. Termination of Services

    General

  33. The termination or expiry of the Services shall not affect any rights or liabilities of the parties already accrued, except to the extent necessary, and these General Terms will continue to apply.
  34. Termination by the client

  35. In addition to any statutory or other legal rights of the Client, the Client may terminate any or all of the Services by giving Gopher Notice within 7 calendar days of the date on which the Client agrees to purchase the relevant Services. If the Client terminates Services in accordance with this clause, any Charges for the relevant Services paid to Gopher will be refunded to the Client.
  36. The Client will not otherwise be entitled to any refund and will remain liable for any Charges incurred, for the full term of the Services, if the Client decides to cancel any Services after the expiration of the 7 calendar day period in clause 27.
  37. If the Client terminates any Services for any reason prior to the expiry of the relevant term, then Gopher will not be obliged to remove any content, cease delivery of the those Services, except where notice has been given as set out in clause 3.f.
  38. Termination by Gopher

  39. Gopher may terminate all or any of the Services with immediate effect on notice to the Client, if the Client:
    • ceases or threatens to cease to carry on its business or becomes insolvent, has a receiver or administrator appointed, makes any arrangement for the benefit of its creditors, goes into liquidation or enters into any other insolvency process; or
    • commits a material breach of these General Terms or any relevant Specific Terms and (in the case of a breach capable of remedy) fails to remedy it within 7 calendar days of receipt of notice from Gopher specifying the breach and recording an intention to terminate if the breach is not remedied.

    Warranties, Indemnities and Liability

  40. The Client warrants and represents that:
    • it has not relied on any representations made by or on behalf of Gopher save as contained in these General Terms or any relevant Specific Terms;
    • any name, logo, specification, design, instruction or other material supplied by it to Gopher and its use within the Services will not infringe any Intellectual Property Rights or other any other rights of any third party, nor will it be defamatory or otherwise unlawful in any way; and
    • all the information, claims and offers given or made by the Client are accurate and in no way misleading and the terms of any offers made by the Client will be honoured.
  41. The Client agrees to indemnify Gopher, its directors, officers, employees, contractors and agents, and any other related body corporate, against all claims, demands, damages, costs, penalties, suits and liabilities of any nature caused directly or indirectly by the Client’s act or omission or any breach of any provision of these General Terms or any relevant Specific Terms.
  42. Gopher shall not be liable in contract, tort or otherwise for any consequential, indirect or pure economic loss suffered by the Client that arises in any way from the Services, these General Terms or any Specific Terms, even if such loss was, or should have been, within Gopher’s contemplation.
  43. The liability of Gopher’s directors, officers, employees, contractors and agents, and any other related body corporate of Gopher in contract, tort or otherwise is excluded to the maximum extent permitted by law.
  44. Without restricting any other provision of these terms limiting any person’s liability, to the maximum extent permitted by law, Gopher’s total aggregate liability for any claim or claims in any 12 month period, whether in contract, tort or otherwise that arises in any way from the Services, these General Terms or any Specific Terms, shall be limited to no more than an amount equal to the GST-exclusive amount actually paid by the Client to Gopher in respect of the relevant Services in the 12 month period prior to the event or events giving rise to the claim or claims.
  45. Miscellaneous

  46. The Gopher Mobile website at app.gopher.co.nz is an extension of the Gopher website at www.gopher.co.nz and is designed to provide the same Gopher benefits and user experience, for mobile devices. To use the mobile website users must have a compatible handset with general location tracking, and in doing so the Client acknowledges that:
    • location tracking does not provide the user’s precise location, and instead provides the location of the mobile phone tower being used by the user's mobile phone.
    • users will be charged for data usage as per their data pricing plan which is governed by the relevant carrier; and
    • banner advertising may appear during use of the Gopher mobile website.
  47. Facebook administrative privileges enable Gopher to facilitate the operation of the social media Services (including Facebook competitions). These privileges are granted at the behest of the page owner, and the Client agrees that the Client will grant Gopher (using the Facebook profile Go Pher) such privileges. The Client acknowledges that Gopher may use their administration privileges to grant further privileges to additional Gopher accounts where necessary in the provision of Services. The Client further acknowledges this may lead to a number of different profiles holding administration privileges and a number of Gopher associated ‘likes’ on the Client’s Facebook page.
  48. A party may suspend its obligations under the General Terms and any relevant Specific Terms if and to the extent that it is unable to perform such obligations as a direct result of an act of God, fire, wind, flood, riot, war, industrial action or defaults by third parties or other circumstances of a similar nature beyond its reasonable control (force majeure event). Where a party claims a force majeure event has occurred it must give notice to the other party giving all available information in relation to the event and estimating the period of time required to remedy the event and end the suspension. The existence of a force majeure event will not relieve a party from any obligation to the extent that it is not affected by the force majeure event or related to the period up the occurrence of the force majeure event, or in particular, the Client’s obligation to pay Charges falling due prior to the force majeure event. Where a party’s obligations have been suspended pursuant to this clause for a period of 30 calendar days or more, the other party may immediately terminate the delivery of all Services under these General Terms by notice to the other party.
  49. Where any notice is to be given under these General Terms or any Specific Terms, such notice must be given in writing and:
    • delivered by hand or post to the normal place of business of the relevant party or an alternative address provided by that party; or
    • by email to the address nominated by the party.
    • Unless otherwise advised, notice can be given to Gopher -

      By hand or courier to:
      Level 2, 18 Stanley Street, Parnell, Auckland 1011

      By post to:
      PO Box 37996, Parnell, Auckland 1151

      By email to:
      customerservice@gopher.co.nz

  50. No delay or failure by Gopher to exercise any of its powers, rights or remedies under these General Terms or any relevant Specific Terms will operate as a waiver of them and any waiver, to be effective, must be in writing.
  51. If any part of these General Terms or any Specific Terms is found by a court or other competent authority to be invalid, unlawful or unenforceable then such part will be severed from the remainder of those terms will continue to be valid and enforceable to the fullest extent permitted by law.
  52. The headings or titles used in these General Terms or in any relevant Specific Terms are to facilitate reference and shall not be referred to or relied upon in the construction of any provision of these General Terms or any relevant Specific Terms.
  53. Both parties shall keep confidential all material concerning the business affairs of the other disclosed in the course of performance of these terms, save for any information in the public domain.
  54. Gopher shall be entitled to set-off against any monies payable to Gopher by the Client, any monies which may be payable by Gopher to the Client, whether under these General Terms and any relevant Specific Terms or otherwise.
  55. These General Terms and any relevant Specific Terms are the complete and exclusive statement of the agreement between the parties relating to their subject matter and they supersede all previous communications, representations and other arrangements, whether written or oral. These General Terms and any relevant Specific Terms may only be varied in writing.
  56. The guarantees contained in the Consumer Guarantees Act 1993 are expressly excluded where the Client acquires or holds itself out as acquiring goods or services from Gopher for the purposes of a business.
  57. These General Terms and any relevant Specific Terms will be governed by the laws of New Zealand and will be construed in all respects as a contract entered into in New Zealand. The parties hereby submit to the exclusive jurisdiction of the New Zealand courts.
  58. Dispute Resolution

  59. Gopher is committed to providing the highest level of customer service. However, if for any reason the Client is unhappy with the Services or experience it has received from Gopher, in the first instance the Client agrees to direct its complaint to Customer Care who will investigate the Client’s concerns fairly and within a reasonable time.
  60. If Customer Care are unable to resolve the Client’s complaint, it will be referred to the General Manager for an independent review in accordance with internal policy and resolution methods. The General Manager will acknowledge receipt of the Client’s complaint within 7 calendar days, and will respond to and attempt to resolve the complaint within a reasonable time, having regard to the complexity of the complaint.
  61. If the complaint remains unresolved, or if the Client is dissatisfied with Gopher’s response, provided the Client has completed the steps set out in clauses 48 to 49 above, then the Client may take steps relating to the matter in an appropriate New Zealand court or tribunal.