Member Subscription Terms and Conditions

1) Our Agreement

1.1 We provide an online community (The Sticky Handshake) to businesses and other persons that meet our criteria and sign up to our Membership terms (each a Member). The Sticky Handshake provides a collaborative, online community designed, primarily to assist small and medium enterprises (SME’s) to promote themselves and help other similar businesses to do the same.

1.2 By subscribing for The Sticky Handshake and meeting our criteria, you are a Member governed by our Member agreement, comprising these Membership Terms and our Privacy Policy (each as amended from time to time) (agreement). If you do not agree to the terms and conditions of the agreement, please refrain from using The Sticky Handshake.

2) Your Account

2.1 You may register for a The Sticky Handshake account

2.2 by completing and submitting the membership registration form on our website, and complying with our other requirements under this agreement and as we notify you from time to time.

2.3 You will be asked to choose a user ID and password. Your user ID must not be liable to mislead and must comply with the content rules set out in this Section 2.

2.4 Your right to use The Sticky Handshake is personal to you. You acknowledge and agree that you are responsible for all activity under or arising out of Your Account. Without limiting the foregoing:

1. You may not authorise others to use Your Account.
2. You must notify us via email to support@thestickyhandshake.com.au immediately if you become aware of any unauthorised use of Your Account or any unauthorised disclosure of your user ID, password or any other details of Your Account.
3. You must not use any other person’s The Sticky Handshake account, unless you have that person’s express permission to do so.
4. You must not use Your Account or your user ID for or in connection with the impersonation of any other person.
5. You agree not to disrupt, modify or interfere with The Sticky Handshake, our website or any associated software, hardware and servers in any way and you agree not to impede or interfere with others’ use of The Sticky Handshake. You further agree not to alter or tamper with any information or materials on, or associated with, The Sticky Handshake.
6. You must treat your user ID, password and all other information associated with Your Account as confidential, and you must not disclose it to any third party.

3) Your Content

3.1 You confirm that all works and materials (including text, graphics, images, and files) that you submit to us or our website for storage or publication under Your Account (your content), and
the use of your content by us in accordance with this agreement, will not:

1. be libellous or maliciously false;
2. be obscene or indecent;
3. infringe any copyright, moral right, database right, trademark right, design right, right in passing off, or other intellectual property right;
4. infringe any right of confidence, right of privacy or right under data protection legislation;
5. constitute negligent advice or contain any negligent statement;
6. constitute an incitement to commit a crime or an instruction for the commission of a crime or the promotion of criminal activity;
7. be in contempt of any court, or in breach of any court order;
8. be blasphemous;
9. be in breach of any contractual obligation owed to any person;
10. depict violence, in an explicit, graphic or gratuitous manner;
11. be pornographic, lewd, suggestive or sexually explicit;
12. be untrue, false, inaccurate or misleading;
13. consist of or contain any instructions, advice or other information which may be acted upon and could, if acted upon, cause illness, injury or death, or any other loss or damage;
14. constitute an unsolicited electronic message;
15. be offensive, deceptive, fraudulent, threatening, abusive, harassing, anti-social, menacing, hateful, discriminatory or inflammatory;
16. cause annoyance, inconvenience or needless anxiety to any person;
17. be otherwise contrary to law; or
18. be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).

3.2 You may edit your content to the extent permitted using the editing functionality made available on our website.

3.3 You grant to us a worldwide, irrevocable, non-exclusive, royalty-free licence to reproduce, store,adapt, publish, and distribute your content under or in respect of Your Account.

3.4 Without prejudice to our other rights under these terms and conditions, if you breach any provision of this agreement in any way, or if we reasonably suspect that you have breached this
agreement in any way, we may delete, unpublish or edit any or all of your content without liability to you.

4) Ownership and branding

4.1 As between the parties, we own all Intellectual Property Rights in every aspect of The Sticky Handshake, including in respect of the Trade Marks, the The Sticky Handshake website, the Collateral and any documents or materials we may provide (The Sticky Handshake Materials).

4.2 We hereby grant to you a non-exclusive, sub-licensable, perpetual, royalty free licence to use our Intellectual Property Rights to the extent necessary for the sole purpose of using The Sticky Handshake in accordance with this agreement. Other than as expressly granted by this agreement, you acquire no rights in or to The Sticky Handshake.

4.3 You must use reasonable endeavours to prevent any infringement of our Intellectual Property Rights and you must promptly report to us any such infringement that comes to your attention.

4.4 You consent to us referring to you and this agreement in any publicity or advertising material. You hereby grant to us a non-exclusive, sub-licensable, perpetual, royalty free licence to use your business name and trade marks in the The Sticky Handshake Material.

5) Confidentiality and Publicity

5.1 Each party undertakes not to use the other party’s Confidential Information other than to exercise and perform its rights and obligations under this agreement (Permitted Purposes).

5.2 In relation to your Confidential Information:

1. we will treat as confidential all of your Confidential Information supplied under this agreement. We will not divulge any such Confidential Information to any person, except to our own employees and then only to those employees who need to know it for the Permitted Purposes. We will ensure that our employees are aware of, and comply with, this clause 5; and
2. we may provide any subcontractor with such of your Confidential Information as it needs to know for the Permitted Purposes, provided that such subcontractor has first entered into a written obligation of confidentiality owed to us in terms similar to clause 5.

5.3 In relation to our Confidential Information:

1. you must treat as confidential all of our Confidential Information (wherever it may be contained or embodied, and however it may be supplied to you);
2. you must not, without our prior written consent, divulge any part of our Confidential Information to any person other than your employees who need to know it for the Permitted Purposes;
3.  you undertake to ensure that the persons mentioned in clause 5.3(b) are made aware, before the disclosure of any part of our Confidential Information, that the same is confidential and that they owe a duty of confidence to you in terms similar to clause 0 (which you must ensure is adhered to).

5.4 The restrictions imposed by this clause 5 shall not apply to the disclosure of any Confidential Information which:

1. is now in, or subsequently comes into, the public domain other than as a result of a breach of this clause 0;
2. before any negotiations or discussions leading to this agreement, was already known by the receiving party and was not obtained or acquired in circumstances of confidentiality; or
3. is required by law or regulation to be disclosed to any person authorised to receive the same (after consultation, if practicable, with the disclosing party to limit disclosure to the extent necessary).
4. You will be added to The Sticky Handshake newsletter subscriber list so we can send you updates from time to time. However, you will have the ability to unsubscribe from this newsletter  then you receive it.

6) Pricing and Payment

6.1 We are committed to respecting your privacy. We will always adhere to our obligations under Applicable Privacy Law as we collect, store, use and disclose personal information. However, we have also put in place our Privacy Policy to protect personal information you submit or we collect.

6.2 The personal information we collect may include information about people who are Members, employees, directors or principals of yours. We ask you to help us to make sure that these
people are aware that our arrangements with you may involve collection of personal  information about them.

7) Privacy

7.1 We are committed to respecting your privacy. We will always adhere to our obligations under Applicable Privacy Law as we collect, store, use and disclose personal information. However, we have also put in place our Privacy Policy to protect personal information you submit or we collect.

7.2 The personal information we collect may include information about people who are Members, employees, directors or principals of yours. We ask you to help us to make sure that these people are aware that our arrangements with you may involve collection of personal information about them.

8) Suspension and termination

Material default by a party

8.1 A party will be in material default under this agreement if it:

1. fails to properly or promptly perform any material obligation under this agreement that is incapable of remedy;
2. fails to properly or promptly perform any material obligation under this agreement that is capable of remedy, but fails to remedy that failure within 10 working days of receiving written notice (inclusive of the date of receipt) from the other party requiring the failure to be remedied;
3. suspends or ceases its primary, or all of its, business activities for more than five consecutive working days;
4. it:(i) goes into receivership or has a receiver, trustee and manager (or either of them)
   (including a statutory manager) appointed in respect of all or any of its property;
   (ii) is unable to pay its debts as they fall due, or is presumed to be unable to pay its debts as they fall due, in terms of Applicable Companies Law (whether or not that party is incorporated under that Applicable Companies Law); or
   (iii) makes an assignment for the benefit of, or enters into or makes any arrangement or composition with, its creditors;
5. any resolution is passed or any proceeding is commenced for its winding up or liquidation (whether on a voluntary or involuntary basis); or
6. any event analogous to those listed in paragraphs 8.1(d)(i), (d)(ii) or (d)(iii) occurs.

Right to suspend or terminate

8.2 If a party is in material default as specified in clause 0, the other party may terminate this
agreement by written notice.

8.3 Without prejudice to our other rights under this agreement, if you breach this agreement in any
way, or if we reasonably suspect that you have breached this agreement in any way, we may:

7. send you one or more formal warnings;
8. temporarily suspend your access to our website or Your Account;
9. permanently prohibit you from accessing our website or Your Account;
10. block computers using your IP address from accessing our website or Your Account;
    contact any or all of your internet service providers and request that they block your access to
    our website;
11. commence legal action against you, whether for breach of contract or otherwise; and/or
12. suspend or delete Your Account.

8.4 Where we suspend or prohibit or block your access to our website or Your Account, you must not take any action to circumvent such suspension or prohibition or blocking (including creating and/or using a different The Sticky Handshake account).

8.5 If a Force Majeure Event under clause 12.1 continues for more than 15 consecutive working days, or for an aggregate of 30 working days in any six month period, then the party not claiming the benefit of the Force Majeure Event will be entitled to terminate this agreement.

8.6 Either party may cancel Your Account and/or terminate this agreement at any time, for any or no reason. Where you wish to cancel Your Account, you may do so by notifying cancellation by email to support@thestickyhandshake.com.au. We will aim to process your cancellation request within 2 working days following receipt of your email notification.
Consequences of termination

8.7 On lawful termination of this agreement:

13.  you will cease using the The Sticky Handshake Materials and all other Intellectual Property Rights of ours;
14.  each party will promptly return to the other party all other property and items provided to that party for the purposes of this agreement; and
15. you must not solicit any Members for any purpose that may be adverse to our business interests.

Survival of rights and remedies

8.8 Termination of this agreement will not affect:

13. any party pursuing whatever rights and remedies that may be available to it under this agreement, at law or in equity as a result of such termination which accrued up to and including the termination date; and
14.  the provisions of this agreement which expressly, or by their nature, survive termination, including clause 3 (your content), clause 4 (intellectual property), clause 5 (confidentiality and publicity), clause 8 (termination), clause 0, clause 100 (our liability) and clause 12 (general).

9) Important Confirmations

9.1 You represent and warrant to us that:

18.  you have full power and capacity to execute, deliver and perform your obligations under this
    agreement;
19. you have not taken any action, nor have any other steps been taken or legal steps been
    commenced or threatened against you, for your liquidation, dissolution or re-organisation;
20. you are not a party to any agreement, arrangement or other understanding with any person
    which is materially inconsistent with the terms of this agreement;
21.  no action or administrative proceeding of or before any court or agency has been commenced or
    threatened against you; and
22.  you will at all times comply with all applicable laws and regulations with respect to your
    activities.

9.2 You hereby indemnify us against all liabilities, costs, expenses, damages and losses suffered or
incurred by us arising out of any non-compliance by you with clause 9.1.

10) Our liability

10.1 We do not warrant or make any representation regarding the use or promotion, or the results of
the use or promotion, of The Sticky Handshake. Except as otherwise set out in this agreement, we
expressly disclaim all other warranties, express and implied to the fullest extent permitted by law.
Without limiting the foregoing, although efforts are made to ensure material on our website is
current, complete and accurate, to the extent permitted by law:

1. The Sticky Handshake and its content is provided without any guarantees, conditions or warranties, express or implied;
2. we exclude all representations and warranties relating to the subject matter of this agreement, The Sticky Handshake, our website and the use of our website;
3. we reserve the right to discontinue or alter any or all of our The Stick Handshake website services, at any time in our sole discretion without notice or explanation. Save to the extent that this agreement expressly provides otherwise, you will not be entitled to any compensation or other payment upon the discontinuance or alteration of The Sticky Handshake website services or our website.

10.2 We will not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for any loss (whether direct or indirect) of profits, business, business opportunities, data, information, revenue, turnover, reputation, goodwill, anticipated savings or wasted expenditure (including management time), provided always that nothing in this agreement will limit or exclude any liability:

1. for death or personal injury resulting from negligence;
2. for fraud or fraudulent misrepresentation; or
3. to the extent that such limitation or exclusion is not permitted under applicable law.

10.3 Subject to clause 10.2, our total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement or any collateral contract shall be limited to AU$50.

10.4 You acknowledge and accept that we have an interest in limiting the personal liability of our officers and employees and, having regard to that interest, you acknowledge and agree that:

1.  we are a limited liability entity;
2. you will not bring any claim personally against our officers or employees in respect of any losses you suffer in connection with this agreement (other than in respect of any liability that we may have for the acts and omissions of our officers and employees).

11) Disputes
Negotiation

11.1 If any dispute arises between the parties out of or in connection with this agreement (Dispute), either party may, by written notice to the other party, summon a meeting of the parties to the Dispute. Each party will promptly designate a representative with authority to settle the Dispute to attend the meeting(s). The authorised representatives will meet promptly as many times as necessary to discuss the matter and to negotiate in good faith to resolve the Dispute.
Arbitration

11.2 If the Dispute is not resolved within 10 working days of a written notice first being given pursuant to clause 11.1, the Dispute will be referred to arbitration before an arbitrator under the Arbitration Act 1996.
Condition precedent

11.3 Nothing in this clause 11 prevents a party seeking urgent relief in a court of competent jurisdiction.

12) General

12.1 Force Majeure: Notwithstanding any other provision of this agreement, neither party will be liable for any failure or delay in complying with any obligation imposed on such party under this agreement if:

1. the failure or delay is due to a Force Majeure Event;
2.  that party, on becoming aware of the Force Majeure Event, promptly notifies the other party in writing of the nature of, the expected duration of, and the obligation(s) affected by, the Force
   Majeure Event; and
3. that party uses its best endeavours to mitigate the effects of the Force Majeure Event and perform that party’s obligations on time despite the Force Majeure Event,

in each case without limiting clause 0.

12.2 No partnership: Nothing in this agreement shall establish any partnership or joint venture between any of the parties, constitute a party the agent of the other party or authorise a party to make or enter into any commitments for the other party, except as expressly authorised by you or us (as the case may be).

12.3 Enforceability: If any part of this agreement is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable, that determination shall not impair the enforceability of the remaining parts of this agreement.

12.4 Notices: All notices to be given under this agreement may be in writing and delivered by hand, registered mail or e-mail (provided the notice is attached to the e-mail as a pdf document) to  the relevant party at the addresses specified on the front page of this agreement. Receipt will be deemed to have occurred:

1. for hand delivery, at the time of actual delivery to the recipient’s address;
2. for registered mail, 3 working days after posting;
3. for e-mailed pdf documents, the earlier of the sender’s receipt of confirmation of successful delivery, or one day after the e-mail first leaves the sender’s network for delivery to the recipient’s address (provided the sender does not receive any indication of failure or delay in delivery within one day after that dispatch).

12.5 Compliance with laws: Each party will, in performing its obligations under and in connection with this agreement, comply with all relevant legislation and other laws.

12.6 Costs: Each party will pay its own costs of and incidental to the negotiation, preparation, execution and enforcing, or attempting to enforce, this agreement.

12.7 Further assurances: Each party will make all applications, execute all documents and do all acts and things reasonably required to implement and to carry out its obligations under this
agreement.

12.8 Assignment: This agreement is personal to you. You must not (directly or indirectly) assign, novate, transfer or otherwise dispose of any of your rights under or interest in, or any of your obligations or liabilities under, or in connection with, or arising out of, this agreement except with our prior written consent.

12.9 Entire agreement: This agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes and cancels all previous agreements. By using The Sticky Handshake or otherwise acknowledging these terms and conditions, you agree to be bound by this agreement.

12.10 Variation: We may revise this agreement at any time (with immediate effect) by amending the Member Terms or our Privacy Policy (or both) on our website and will not be required to notify you of any such change. Please do not make any assumption that these terms and conditions of this agreement will apply to your future use of The Sticky Handshake. We recommend you regularly visit our website and check whether any aspect of this agreement has changed. If you do not agree with any such changes (including as altered, modified or updated) you must not continue to use The Sticky Handshake. Some of the provisions contained in this agreement may also be superseded by provisions or notices published elsewhere on our website.

12.11 Rights cumulative: All rights and remedies of the parties, under this agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy is not an election of that remedy to the exclusion of other remedies.

12.12 Counterpart execution: This agreement may be executed in any number of counterparts (including facsimile copies) and, provided that both parties have executed a counterpart of this agreement, the counterparts together will constitute a binding and enforceable agreement.

12.13 Governing law: This agreement is governed by, and construed in accordance with, the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the New Zealand  courts.

12.14 Statutory and Regulatory Disclosures: The Sticky Handshake Limited is registered in New Zealand.

12.15 Our Details: You can contact us by writing to support@thestickyhandshake.com.au

12.16 Definitions and interpretation

12.17 Definitions: The following definitions apply in this agreement –

Applicable Companies Law means in New Zealand the Companies Act 1993 and in Australia the Corporations Act 2001 (Cth).
Applicable GST Law means in New Zealand the Goods and Services Tax Act 1985 and in Australia the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Applicable Privacy Law means in New Zealand the Privacy Act 1993 and in Australia the Privacy Act 1988 (Cth).
Collateral means our promotional materials and marketing collateral relating to The Sticky Handshake.
Confidential Information means information of commercial value, in whatever form or medium, which has been kept confidential by the party from whom the information originates and  which has not come into the public domain during the term of this agreement in breach of any obligation of confidence, including information relating to the terms of this agreement, the The  Sticky Handshake programme or any of its constituent parts, or any such parts, commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to Members, pricing and marketing.

Dispute has the meaning set out in clause 11.1.

Force Majeure Event means an event or occurrence:

1. which is beyond our or your (as the case may be) reasonable control; and
2. which we or you (as the case may be) could not have taken reasonable measures to prevent, but will not include strikes, lock-outs or any other form of labour dispute or any other form of delay caused by contractual or labour relations with personnel or suppliers, or inability to perform due to lack of funds.

GST means goods and services tax, payable in accordance with Applicable GST Law.

Intellectual Property Rights means trademarks, rights in domain names, copyright, patents, registered designs, circuit layout, rights in computer software, databases and lists, rights in inventions, confidential information, know-how and trade secrets and all other intellectual property, in each case whether registered or unregistered (including applications for the grant of any of the foregoing) and all rights or forms of protection having equivalent or similar effect anywhere in the world, including the goodwill associated with the foregoing and all rights of action, powers and benefits in respect of the same.
our website means the The Sticky Handshake website located at www.The StickyHandshake.com.au and www.Thestickyhandshake.co.nz
Permitted Purpose has the meaning set out in clause 5.1.
Privacy Policy means our privacy policy (which are on the bottom menu on our web site) as updated from time to time;
Your Account has the meaning set out in clause 2

your content has the meaning set out in clause 3.1.

Trade Marks means our trademarks used in connection with The Sticky Handshake, including the words “THE STICKY HANDSHAKE” and associated logos and devices.
working day means a day other than a Saturday, Sunday or public holiday in New Zealand or Australia when banks are open for business.
The Sticky Handshake has the meaning set out in the recitals on the front page of this agreement.
The Sticky Handshake Materials has the meaning set out in clause 4.1.

12.18 Interpretation: In this agreement, unless the context indicates otherwise:

1. Words in the singular include the plural and those in the plural include the singular.
2. References to including or includes shall be deemed to have the words “without limitation”
   inserted after them.
3.  Except where a contrary intention appears, a reference to a clause, Schedule or annex is a reference to a clause of, or Schedule or annex to, this agreement.
4. Writing or written includes faxes but neither e-mail nor any other form of electronic communication, except where expressly provided to the contrary.