By accessing or otherwise using the Website or Service you are deemed to have accepted these Terms of Use, which shall form a binding agreement between you and us.

In these Terms of Use:

Dazzly, we, us and our means Dazzly USA Trading Limited (operating as Dazzly), a company incorporated in Auckland, New Zealand (the provider of the Service), and

Customer, you or your means the person who uses the Service and/or the Website and is the holder of an Account.

All other capitalised terms not otherwise defined have the meaning given to them in clause 21

1. Service

1.1

Subject to your compliance with the Terms of Use, we grant you a limited, non-exclusive, non-transferable licence to access and use the Service strictly in accordance with these Terms of Use.

1.2

If you wish to access and use the Service, you must become a registered user and activate an Account.

1.3

Only your Authorised User may access the Service on your behalf. You may authorise any of your employees, contractors or representatives to be your Authorised User.

1.4

You must notify each Authorised User of the terms of the Terms of Use and ensure that each of them strictly comply with such terms. You shall be responsible (and liable) for any failure of any Authorised User to comply with the Terms of Use (as if it were a breach by you of the Terms of Use).

2. Fees

2.1

If you use the Service, you must pay the associated Fees and any transaction fees referred to in clause 2.3. You will be prompted, within the Service to make payment of the relevant Fees, and any applicable transaction fees will be deducted automatically by Stripe from End Customer Transaction payments. All Fees are as detailed on the Website, unless otherwise expressly agreed in writing between you and us.

2.2

Credit card transactions (including credit card payments from End Customers Transactions) are securely processed by Stripe, a third party payment processor, and are subject to Stripe’s Terms of Service (available at stripe.com/us/legal). Stripe is solely responsible for such transactions and we exclude all liability for such transactions to the extent not restricted by law. Stripe maintains administrative, technical, and physical procedures to protect information stored on its servers, as outlined within its privacy policy (available at stripe.com/us/privacy). You must provide notice of such matters to your End Customers in your Customer Website Terms.

2.3

In addition to the Fees, transaction fees will apply and be payable by you, including, a payment processing fee, equal to 5% of the value of each End Customer Transaction processed through your Customer Website. The transaction fees will be deducted automatically by Stripe from End Customer Transaction payments.

2.4

The Service may contain links to third-party websites which are operated and owned by independent providers or retailers. Such third-parties may charge for use of certain content or services provided on their website. Therefore, you should make appropriate inquiries before proceeding with any transaction with any third party to determine whether a charge will be incurred.

3. Restrictions

3.1

You agree:

3.1.1

to use (and ensure your Authorised user uses) the Website and Service (including any trial service) strictly in the manner anticipated by the Website and these Terms of Use;

3.1.2

not to (and to ensure that your Authorised User and End Customers do not) modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell the Service or its Content;

3.1.3

not to use (and to ensure that your Authorised User and End Customers do not use) the Service or your Customer Website for any illegal purpose;

3.1.4

not to (and to ensure that your Authorised User and End Customers do not) distribute through the Service or any Customer Website any attachments, documents, data or files that: (i) infringe on any copyright, patent, trade secret, trademark or other third party proprietary rights; (ii) violate any law (including any Data Privacy Law), statute, ordinance or regulation; or (iii) are defamatory, libellous or obscene;

3.1.5

to ensure that any information you (and your Authorised User) provide in connection with your Account and use of the Service and Customer Website is accurate and current, and that you will promptly notify us of any change in such information;

3.1.6

to keep (and ensure your Authorised User keeps) your Account details and passwords strictly confidential and not share your Account password with any other person;

3.1.7

to use (and ensure your Authorised User and End Customers use) the Service or your Customer Website in accordance with the Fair Use Policy and otherwise in a way that does not damage, disable, overburden, or impair the Service;

3.1.8

not to attempt to modify, translate, adapt, edit, decompile, disassemble, reverse engineer or undermine the security or integrity of any software programs used by us in connection with the Service or the Website.

3.2

You may not access the Service if you are a direct competitor of ours, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

4. Trial Service

4.1

We may offer you a free trial of the Service. Any free trial offered by us will commence on the day that we make the trial service available to you and will end on the last day of the trial period specified on the Website.

4.2

Within 14 days of the end of a trial period, we will automatically disable your access to the Service and your trial Customer Website (and, subject to clause 4.3, will delete your Customer Data), unless you become a registered user of the Service on a paid basis.

4.3

We may retain your name and email address for the purposes of contacting you regarding our products and services, but only if you have previously consented to receiving marketing messages from us. You may unsubscribe to any email marketing message at any time by following the unsubscribe instructions contained in the message.

4.4

Services provided during any trial period are supplied on an “as is – where is” basis, and as such any warranties given by us in these Terms of Use do not apply.

5. Changes

5.1

You accept that the Service and Website may evolve and change over time. We reserve the right at any time to modify, adapt, suspend or discontinue, whether temporarily or permanently, the Service (or any part of it) and/or the Website with or without notice to you. To the extent permissible at law, we will not be liable to you or to any third party for any modification, adaptation, suspension or discontinuance of the Website or Service.

6. Disruption of Service

6.1

We will take all reasonable steps to ensure that the Service functions as intended. However, you acknowledge that your access to the Service and your Customer Website may be disrupted as a result of a malfunction, updating, maintenance or repair of the Website or Service or for any other reason within or outside our control.

6.2

To the extent permissible at law, we shall not be liable for any loss or damage caused or suffered (by you, your Authorised User or any End Customer) as a result of any partial or total breakdown of, or inability to use, the Website, the Service or your Customer Website. Subject to our Fair Use Policy, we will use reasonable endeavours to promptly address (during normal business hours in New Zealand) technical issues that arise in relation to the Website or the Service.

6.3

You agree that use of the Service is at your own risk and that we do not warrant that the Service or your Customer Website will meet your specific requirements, or that use of the Service or your Customer Website will be uninterrupted, timely, secure, or error-free. Our obligation in clause 6.1 is in lieu of all other warranties in respect of the Website, the Service and your Customer Website. To the maximum extent permitted under applicable law, all other warranties, condition and representations, whether express, implied or verbal, statutory or otherwise, and whether arising under these Terms of Use or otherwise, are excluded (including, without limitation, the implied warranties of merchantability, non-infringement and fitness for a particular purpose).

6.4

We cannot guarantee that the Service or your Customer Website will be free from viruses, trojan horses, worms, time bombs, or similar harmful programming routines.

6.5

You agree the Service is acquired for the purposes of a business, and as such, the guarantees provided under the New Zealand Consumer Guarantees Act 1993 (and/or any other applicable consumer legislation in the jurisdiction in which the Service is being accessed) do not apply

7. End Customer Transactions

7.1

You acknowledge and agree that we take no part in and have no responsibility for, or liability in respect of, any End Customer Transaction (including any products or services sold or purchased via your Customer Website), and you agree (and shall ensure that your End Customers agree, via your Customer Website Terms) that:

7.1.1

all communications and transactions between you and End Customers via your Customer Website (including each End Customer Transaction) shall be undertaken by you and the relevant End Customer at your own risk;

7.1.2

we have no responsibility for, and no liability in respect of, any End Customer Transaction undertaken via your Customer Website;

7.1.3

we make no warranties or representations in any way whatsoever in respect of:
(a) any End Customer Transaction performed (or not performed, as the case may be) via your Customer Website; or
(b) any payment made (or not made, as the case may be) for any End Customer Transaction.

7.1.4

any dispute relating to an End Customer Transaction shall be a matter for resolution between you and the relevant End Customer (in accordance with appropriate dispute resolution procedures).

7.2

You agree to act reasonably and in good faith and in accordance with all applicable laws in connection with all End Customer Transactions you enter into.

7.3

Your Customer Website must contain legally binding (and compliant) website terms of use, including a privacy policy (Customer Website Terms) that, without limitation:

7.3.1

allocate risk, responsibility and liability in respect of End Customers (and End Customer Transactions) in the manner specified in these Terms of Use;

7.3.2

expressly obtain the consents and approvals of End Customers required by these Terms of Use and as otherwise required by applicable laws (including all Data Privacy Laws); and

7.3.3

prohibit any claim by an End Customer directly against us, in respect of any End Customer Transaction or any other interaction that an End Customer may have with the Customer Website.

You must ensure that each End Customer accepts your Customer Website Terms before sharing any Personnel Information with you or the Customer Website or otherwise undertaking any Customer Transaction.

8. Customer Data

8.1

As between you and us, all Customer Data will be (and will remain) owned by you. However, you grant to us a licence to access, use and disclose all Customer Data for the purposes of providing the Service and otherwise exercising our rights under these Terms of Use, enhancing and developing the Website, the Service, your Customer Website and communicating with you about the Service and any other matters that may be of interest. We may also disclose Customer Data (including Personal Information) in connection with a proposed purchase or acquisition of our business or assets, where required by an applicable law or any court, or in response to a request by a legitimate law enforcement agency.

8.2

You also grant to us a non-exclusive irrevocable license to copy, anonymize, aggregate, process and display Customer Data to derive anonymous statistical and usage data, and data about the functionality of the Service and your Customer Website, provided such data cannot be used to identify you, your Authorised User or End Customers (Anonymous Data), for the purposes of combining or incorporating such Anonymous Data with or into other similar data and information available, derived or obtained from other clients, licensees, users, or otherwise (when so combined or incorporated, referred to as Aggregate Data). We will own all right, title and interest in Aggregate Data.

8.3

You warrant and represent that:

8.3.1

you have the right to grant the licences in clauses 8.1 and 8.2 in respect of all of your Customer Data, and inputting, using and disclosing your Customer Data in the manner anticipated by these Terms of Use and the Service; and

8.3.2

use of your Customer Data by us, you or any other Authorised User in connection with the Service (and as otherwise anticipated by the Terms of Use) will not breach any laws or the rights (including intellectual property rights) of any person.

8.4

You are solely responsible for maintaining a copy of all of your Customer Data. We have in place for our own purposes policies and procedures to prevent data loss (and recovery), but do not make any guarantee around loss or corruption of Customer Data and, as such, we expressly exclude any liability (to you, your Authorised User and your End Customers) for any loss or corruption of Customer Data. You acknowledge and agree that the internet is inherently insecure and that, in particular, technical issues and system maintenance issues may result in the loss or corruption of Customer Data.

8.5

You acknowledge that the operation of the Service and your Customer Website depends on the entry by you, Authorised User and End Customers of accurate and up to date Customer Data.

9. Ownership

9.1

Title, copyright and all other proprietary rights in the Website, the Service, the Content any software or intellectual property used by us to develop and provide the Service, and any associated updates or documentation (and all parts and copies thereof) will remain with us.

9.2

If you provide us with ideas, comments or suggestions relating to the Website, the Service and/or your Customer Website (together feedback):

9.2.1

we may use or disclose the feedback for any purpose; and

9.2.2

all 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 us.

10. Confidentiality

10.1

We will make every reasonable effort to keep your Customer Data secure. We will not disclose your confidential information except:

10.1.1

to our personnel and any service providers that we work with where necessary to operate the Website, the Service and/or your Customer Website;

10.1.2

in accordance with the Terms of Use;

10.1.3

if required or permitted by law; or

10.1.4

where you (or your Authorised User or End Customers) otherwise give us permission to do so, including via any End Customer Website.

10.2

Nevertheless, because internet transmissions cannot be guaranteed to be 100% secure in all aspects (including in relation to unauthorised use and disclosure of Customer Data) and accidental disclosure of data can occur as a consequence of system maintenance and/or other technical issues outside our reasonable control, you acknowledge and agree that you use the Website, the Service and your Customer Website at your own risk, and you should only proceed to use the Website, the Service and/or your Customer Website if you accept this condition.

10.3

You shall be liable for all action taken by any person that has obtained access to your Account or Customer Website (whether they have authorised such access or otherwise) and agree to notify us immediately of any unauthorised use of your Account or Customer Website, or other breach of privacy or security.

11. Privacy

11.1

We collect and process your personal information and the personal information of your Authorised User and End Customers when you (or your Authorised User or End Customers, as applicable) access or use the Website, the Subscription Service and/or your Customer Website. In order to provide you with the Services (and improve on them), we may also collect certain information about the performance of the Services, your Customer Website, and your (and your Authorised User’s and End Customers’) use of the Services and Customer Website.

11.2

By agreeing to these Terms of Use, you also agree to the way we handle your (and your Authorised User’s and End Customers’) Personal Information under our Privacy Policy. Our Privacy Policy forms part of these Terms of Use.

11.3

You must:

11.3.1

comply (and ensure compliance by your Authorised User) with all Data Privacy Laws in connection with the collection, use and disclosure of any Personal Information of any person. This may include entering into a data processing agreement with us (as your data processor) if applicable;

11.3.2

not (and will ensure your Authorised User and End Customers do not) use the Website, the Service or your Customer Website in a way that violates (or may be considered inconsistent with) the privacy, rights or civil liberties of any person (including in a way that prevents the exercise of them);

11.3.3

not (and will ensure your Authorised User and End Customers do not) share another person’s Personal Information without that person’s explicit permission;

11.3.4

obtain all consents from all End Customers necessary under applicable laws (including Data Privacy Laws), for us to process and/or disclose End Customer Personal Information as necessary to perform the Service and otherwise comply with our obligations under the Terms of Use, and ensure that such consent is obtained from the correct person;

11.3.5

notify us without undue delay if any End Customer or Authorised User withdraws his or her consent, or any part of their consent, or objects to any processing of his or her Personal Information. This shall include any withdrawal of consent, or objection received by you (or your Authorised User) from a person to whom the Personal Information relates;

11.3.6

upon becoming aware of any unauthorised access, use or disclosure of Personal Information, or any other breach, or suspected breach, of your (or our) security safeguards, notify us without undue delay and provide timely information relating to the incident as it becomes known or as is reasonably requested by us; and

11.3.7

not upload or transfer (or enable your Authorised User or End Customer to upload or transfer) “sensitive data” (as that term is defined in applicable Data Privacy Laws) to the Service or any Customer Website.

12. Indemnity

12.1

You agree to indemnify, and keep indemnified, us, our affiliated companies and our respective directors, officers, employees, agents, representatives, contractors, licensees and successors against any and all liabilities, costs (including legal fees), claims, demands or damages incurred or suffered as a result of or in connection with any:

12.1.1

breach of these Terms of Use (including, for the avoidance of doubt, the Privacy Policy) by you or your Authorised User;

12.1.2

your (or your Authorised User or End Customers’) use of the Website, the Service, any Content and/or your Customer Website;

12.1.3

any End Customer Transaction or other End Customer claim relating to the Customer Website; or

12.1.4

violation of any privacy, intellectual property rights or other rights of a third party (including any End Customer) by you, your Authorised User, End Customers, or any person using your Account.

13. Limitation of liability

13.1

In no event or circumstances shall we be liable to any person, whether under contract, tort, strict liability, negligence or otherwise at law for any special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, or for any loss of profit, use, content, data, opportunity, revenue or business, whether caused by us, our employees, agents or any other persons acting on our behalf.

13.2

To the extent permissible at law our total liability for any loss arising from or in connection with these Terms of Use, the Website, the Service, Content and/or your Customer Website, will not in any circumstances exceed (in aggregate) the Fees paid by you under these Terms of Use in the first 12 months of the term of your agreement with us.

14. Cancellation and suspension

14.1

You may cancel your Account (and your Customer Website) at any time by following the prompts within the Website or the Service.

14.2

We may (but shall not be obliged to) suspend or terminate your Account (and access to your Customer Website) at any time if we reasonably suspect you have breached these Terms of Use (including, for the avoidance of doubt, the Privacy Policy) or we consider it necessary or desirable to do so to protect our interests or reputation or the interests of any other person.

14.3

Subject to clause 14.5, upon termination of your Account (for any reason):

14.3.1

you acknowledge and agree that no Fees (paid in advance and which relate to the period following termination) will be refunded to you;

14.3.2

you must immediately cease (and ensure your Authorised User immediately ceases) to access or use the Service and the Customer Website, and destroy all access codes or passwords related to the Service, Customer Website and our Confidential Information in your possession or under your control;

14.3.3

all of your Customer Data, other than Anonymous Data or Aggregate Data, shall be deleted from the Website;

14.3.4

your Account and Customer Website shall be removed from the Website;

14.4

Any termination will be without prejudice to any prior breaches by you of these Terms of Use; and, any provision of these Terms of Use intended to survive termination shall survive.

14.5

You must ensure that there are no active End Customer Transactions at the date of termination.

15. Suspension

15.1

We may suspend access to the Website and the Service (including your Customer Website) at any time:

15.1.1

for such time as is necessary to carry out maintenance we consider to be necessary or desirable;

15.1.2

to reduce or prevent interference with the Website or the Service, or a breach of any applicable law; or

15.1.3

if required to do so as a result of a direction by any Government, law enforcement or other authority.

16. Use of third parties

16.1

You agree that we may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Website, the Service and/or your Customer Website, and store and manage Content.

17. Links

17.1

The Website and Service may provide links to other sites or resources. Because we have no control over such sites and resources, you acknowledges and agree that we:

17.1.1

are not responsible for the availability of such external sites or resources, and do not endorse and are not liable for any content, advertising, products or other materials on or available from such sites or resources; and

17.1.2

will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.

18. Amendments

18.1

These Terms of Use may be amended or replaced from time to time, with or without prior notice to you, by posting updated Terms of Use on the Website. Any updated Terms of Use become effective as soon as they are posted.

18.2

If updated Terms of Use constitute a material change to these Terms of Use, we will endeavour to post an announcement on the Website. Your continued use of the Website Service and/or Customer Website following any amendment constitutes your acceptance of the updated Terms of Use.

18.3

If you do not agree to the updated Terms of Use you must cease to use the Service and cancel your Account (and Customer Website).

19. Disputes

19.1

You will not commence any court or arbitration proceedings relating to a question, difference or dispute relating to these Terms of Use or the Services (Dispute) unless you have first complied with this section.

19.2

Where any Dispute arises, you (or your representative) and Dazzly will negotiate in good faith in an attempt to resolve the Dispute amicably.

19.3

Where the Dispute cannot be resolved by way of good faith negotiations within 14 days (or such longer period agreed by you and us) of negotiations commencing, either you or we can elect to mediate any dispute in terms of the New Zealand Resolution Institute standard mediation agreement.

19.4

If the Dispute cannot be resolved by way of mediation then either party may initiate arbitration or litigation in New Zealand.

19.5

Nothing in this section will preclude a party from taking immediate steps to seek urgent injunctive relief before an appropriate court.

20. General

20.1

These Terms of Use shall be governed by and construed in accordance with the laws of New Zealand, and the parties submit to the exclusive jurisdiction of the New Zealand courts for any matter arising under or relating to these Terms of Use. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

20.2

We may transfer, assign or sub-license our obligations under these Terms of Use and our rights and obligations without your consent.

20.3

If any provision of these Terms of Use is found to be unenforceable or invalid, that provision shall be limited or removed to the minimum extent necessary so that these Terms of Use shall otherwise remain in full effect.

21. Definitions

21.1

In these Terms of Use, the following terms have the following meanings:

Account means an account within the Service registered by a Customer and enabling the Customer to use the Service.

Authorised User means the member of your personnel that you have authorised to access the Website and Services on your behalf.

Content means content, materials, data or other information made available to you (or your Authorised Users or End Customers) via the Service, but excludes any Customer Data.

Customer Data means any data or information that you (or any of your Authorised User or End Customers) upload into (or otherwise make available via) the Service, the Website, your Customer Website, or any other interactions that you or any such person has with us or you.

Data Privacy Laws means the data protection and privacy laws applicable to the processing of Personal Information that we are committed to comply with, including:

(a) the Privacy Act 2020 (New Zealand);

(b) where we are dealing with persons based in the European Union, Switzerland and the United Kingdom, the European Union General Data Protection Regulation (GDPR); and

(c) any other applicable privacy laws.

End Customer means any person who accesses your Customer Website (whether or not that person undertakes an End Customer Transaction via your Customer Website).

End Customer Transaction means any transaction undertaken by an End Customer on your Customer Website. For example, the purchase of a good or service from your e-commerce Customer Website by an End Customer.

Fair Use Policy means that the use of the Services must be fair, reasonable and not excessive as determined by us (acting reasonably) and by reference to usage by other users, and usage will be considered excessive and unreasonable where it materially exceeds the average and/or estimated use patterns over all of our users.

Fees means the fees payable by you to access and use the Service, as detailed on the Website.

Customer Website means the personalised end customer-facing website (including any e-commerce website) you create (and subsequently operate) using the Service and which will be hosted by us as part of the Service.

Personal Information means information about an identifiable individual, or an individual whose identity can be reasonably ascertained, from that information.

Privacy Policy means our privacy policy as updated from time to time and published on the Website.

Service means the online website creation service made available to you via the Website, and includes any associated implementation, hosting, maintenance and support services provided by Dazzly (to Customers and End Customers) as part of the service, as detailed on the Website and otherwise agreed in writing by Dazzly with you.

Terms of Use means these terms of use and the Privacy Policy.

Website means the website at www.dazzly.co and app.dazzly.co through which the Service may be accessed by you (or in the case of the trial services, https://username.dazzlysite.co), including parts or features of that website that can be used or accessed without requiring registration or logging into.