Terms & Conditions

Synapse Search Terms and Conditions

About these Terms
- These Terms and Conditions (Terms) form a legally binding agreement between Umbrellar Limited t/a Synapse Search (we or us) and you, as our subscribing customer. These Terms govern your use and our provision of the various services included in your Campaign (Services) and apply to you from the Commencement Date and continue until terminated by you or us in accordance with clause 13 (Term).
- By engaging us to provide the Services, you warrant and acknowledge that you have read and understood these Terms and have the authority to act on behalf of any person on whose behalf you are requesting the Services (e.g., your employer). You are deemed to have agreed to these Terms on behalf of any entity for whom the Services are provided.
- It is likely that these Terms will need to change over time as we add features to the Services. We may change these Terms at any time, effective upon the posting of modified terms at https://synapsesearch.nz/terms/ and we will make every effort to communicate these changes to you via email or notification on our website. It is your responsibility to read, understand and agree to the most recent Terms available. Ongoing use of the Services following any modification to the Terms will constitute your acceptance of the modified Terms. If you don’t accept any modified Terms, then you can terminate this agreement in accordance with clause 13 below.
Definitions
- In this Agreement, unless the context requires otherwise:

Adwords means the online advertising service developed by Google (for more information, see https://adwords.google.com/intl/en_nz/home/).

Agreement means these Terms and the Campaign.

Business Day means any day other than a Saturday, a Sunday or a public holiday in Auckland, New Zealand.

Commencement Date means the date specified in the Campaign.

Confidential Information means information disclosed by a party under this Agreement that is marked as confidential or which might reasonably be expected to be confidential in nature.

Disbursements means all third party related costs incurred by us, as outlined in an Campaign, in providing the Services, including, by way of example, Adword campaign expenses or other costs in connection with the purchase of media and advertising.

Intellectual Property Rights means all intellectual property rights whether conferred by statute, at common law or in equity, including all copyright, rights in relation to inventions, trade secrets and know how, rights in relation to designs, rights in relation to trademarks, business names and domain names.

Related Company has the meaning given in section 2(3) of the Companies Act 1993 except that “company” shall mean a company or other body corporate wherever incorporated.

Campaign means the separate plan agreed between us that sets out the services that we will provide to you and the fees payable for those services.

Service Fee means the monthly fee (excluding any taxes) plus third party Disbursements payable by you in respect of the Service, as specified in your Campaign or as otherwise agreed by us in writing.

Interpretation: In this Agreement, unless the context requires otherwise:

(a) references to clauses are to clauses of this Agreement;

(b) derivations of any defined word or term shall have a corresponding meaning;

(d) the headings to clauses are inserted for convenience only and shall be ignored in interpreting this Agreement;

(e) the word including and other similar words do not imply any limitation;

(f) a reference to a party includes its personal representatives, successors and permitted assigns;

(g) a person includes any individual, company, corporation, firm, partnership, trust, unincorporated body of persons or Government Agency;

(h) the plural includes the singular and vice versa;

(i) a reference to a statute includes all regulations and other subordinate legislation made under that statute. A reference to any legislation (including subordinate legislation) includes that legislation as amended or replaced from time to time;

(j) the contra proferentum rule shall not apply in the interpretation of this Agreement;

(k) a document (however described and including this Agreement) includes that document as amended or replaced from time to time;

(l) an obligation not to unreasonably withhold agreement, consent or approval (or any similar obligation) includes an obligation not to unreasonably condition or delay such agreement, consent or approval (or other similar obligation);

(m) any obligation falling due for performance on or by a day other than a Business Day shall be performed on or by the Business Day immediately following that day;

(n) an obligation not to do something includes an obligation not to allow or cause that thing to be done;

(o) all amounts payable under this Agreement are expressed exclusive of GST and in New Zealand dollars. If GST is payable on any amount it will be added to that amount and will be payable at the time the amount itself is payable;

Synapse Search Services
- Provision of Services: We agree to provide the Services to you in accordance with these Terms. All Services provided by us are on a non-exclusive and non-transferable basis during the Term solely for your internal business purposes.
- Changes: We may make changes to the Services from time to time, which may include the removal or discontinuation of any element of the Services. If any change we make materially reduces the benefit of the Services or removes any material functionality, then you may terminate your subscription under clause 13.
Our rights and obligations
- Our authority: You agree to grant us all rights, powers and authorities necessary to provide you with, or procure the provision of, the Services.
- Adwords: If your campaign includes the use of Adwords as part of the Services:
  - we will run all such Adword campaigns through our own account and we will not be obliged to provide you access to that account;
  - we may (in our sole discretion) change the Adwords used in that campaign to allow us to comply with any applicable legal requirements, industry codes or good practice; and
  - if, after the Commencement Date, you request a change to the Adwords and/or Adwords campaign identified in your campaign, we may vary the Service Fees accordingly and will endeavour to notify you of:
    - the likely timeframe that it will take to implement the change;
    - any variations to our Service Fees that may be payable by you as a result of such change; and
    - any changes necessary to be made to your Campaign as a result of such change.
  - Analytics/tracking: If your campaign includes analytics or tracking as part of the Services, we may apply various tracking solutions, including:
    - call recording and the use of tracking phone numbers that will be displayed to the caller instead of your own phone numbers;
    - email address tracking, allowing us to track your emails (and those of your personnel);
    - click tracking code, enabling us to track those pages accessed as a result of those strategies implemented under the campaign and
    - placing a frameset on your website with the tracking phone numbers and tracking email addresses,

together with links to your website or other information we consider appropriate in relation to the campaign.

Credit checks: We may undertake credit checks (in our sole discretion) in relation to you.
Additional charges: If you request a change to your Campaign, whether in relation to the use of AdWords or otherwise, we may charge you for any reasonable costs incurred (including time spent at a rate as agreed between the parties at the time) in assessing and responding to that request, whether you proceed with that change or not. We will notify you at the time if we think any additional costs will be incurred as a result of us acting on your request.
Subcontracting: We may, in our sole discretion, subcontract any of our obligations under these Terms to any other person, provided that we will remain liable to you for all acts or omissions of each subcontractor as if they were our own acts or omissions.

Your obligations
- Responsibilities: You agree to use the Services solely for your own internal and lawful business purposes and in accordance with these Terms and all applicable laws (including privacy and electronic marketing laws). In addition, you are responsible for:
  - paying all Service Fees in accordance with these Terms and as agreed with us;
  - providing all reasonable support to us, including responding promptly to our requests for information, in order to enable us to provide you with the Services;
  - not offering any products or services, via your website or otherwise, that will or will be likely to undermine the Campaign and/or the Services; and
  - performing your obligations as described elsewhere in these Terms.
- Indemnity: You indemnify us for all losses, liabilities, costs and expenses (including but not limited to legal costs) suffered or incurred by us which arise directly or indirectly from any breach by you of these Terms.
Privacy and security
- Privacy Policy: Please see our Privacy Policy at https://synapsesearch.nz/privacy/ for information on how we handle personal information. By using the Service and accepting these Terms, you are taken to have accepted that Privacy Policy.
- Security: We use all reasonable efforts to keep information secure, through technical and organisational measures. However, it is your responsibility to ensure that those security measures are appropriate in the context of your information and data. In the event of any unauthorised access or other security breach, our liability will be limited in accordance with clause 12 of these Terms.
Service Fees
- Service Fees: In consideration for our provision of the Services, you agree to pay the Service Fees to us. Unless other arrangements are agreed, we will invoice you for payment of the Service Fees monthly in advance using the payment information you’ve provided.
- Method of payment: All Service Fees payable under this Agreement must be paid by you:
  - By either credit card (if we add that payment mechanism in the future), direct debit (if we add that payment mechanism in the future) or direct credit (payment details will be provided to you via our invoicing procedure);
  - by the due date recorded on the sales invoice;
  - in same day cleared funds; and
  - free and clear of any set-off, restriction, condition, deduction or withholding.
- Disbursements: You agree at all times during the Term to pay for all invoices as and when they fall due by paying us via direct credit into our designated bank account, which may change from time to time and will be presented to you on your sales invoice, to cover the costs of all Disbursements.
- Suspension: In addition to rights available to us elsewhere under these Terms or at law, if payment of any Service Fees are not made by the due date we may (in our sole discretion) suspend the Services until payment is made in full.
Availability of the Services
- Availability: At times we may need to withdraw, limit the availability of or suspend the Services where the Services (or the infrastructure used to host or deliver them) are unavailable for reasons outside our control. Where possible, we will endeavour to provide you with reasonable notice in advance of such withdrawal or limitation of availability. We do not warrant that we can provide the Services at all times or that the Services will be fault free.
Intellectual Property
- Service: All Intellectual Property Rights in the Services (including any software used to provide it, the web client and/or API through which it is accessed, all documentation relating to the Services, and the branding, look and feel and any trade marks associated with it) remain owned by us (or our licensors) and you will not dispute such ownership.
- Third party accounts: All accounts with third party providers used by us to provide the Services, including Google in respect of Adwords, will be our property and we are under no obligation to provide you with access to such accounts.
- New IP: You agree that all new Intellectual Property Rights that are generated, or will be generated in connection with the Services, including but not limited to new marketing techniques, will be owned by us exclusively. To the extent such ownership does not so vest in us, you irrevocably assign such Intellectual Property Rights to us.
Confidentiality
- No disclosure: Except as permitted by the “Exceptions” below, neither party will disclose the other party’s Confidential Information to any person, or use such Confidential Information for any purpose other than to perform this Agreement.
- Exceptions: Notwithstanding the “No disclosure” requirement above, either party may disclose any of the other party’s Confidential Information:
  - with the other party’s prior written consent;
  - if and to the extent disclosure is required by law (provided that the disclosing party gives the other party notice of the requirement as soon as practicable before such disclosure is made); and
  - to:

(i) its Related Companies, directors, employees or contractors who need to know such information for the purpose of these Terms; or

(ii) its professional advisers, auditors or bankers for a proper purpose,

provided that party ensures that each such person complies with the restrictions in this clause as if such person were a party to these Terms.

Warranties
- Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under this Agreement.
- Your warranties: You represent, warrant and acknowledge that:
  - you are authorised to use the Services, and that you have obtained all necessary consents and permissions to do so;
  - you are solely responsible for determining whether the Services are suitable for your purposes and business needs; and
  - you are acquiring the right to receive 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 (e.g., in New Zealand, the Consumer Guarantees Act 1993) does not apply to the supply of the Services or this Agreement.
- No warranties: You acknowledge that, given the nature of the Services, we do not warrant or guarantee that the Services will deliver results as expected or anticipated by you for your business. The Services, are therefore provided on an “as is” basis and at your risk. Except as expressly set out in this Agreement, and to the maximum extent permitted by law, we expressly exclude all representations, warranties, obligations and liabilities in connection with the Services, including warranties of merchantability, accuracy, completeness, non-infringement, title, fitness for a particular purpose, and any warranties arising by statute or otherwise in law or from course of dealing.
Liability
- Cap: Our maximum aggregate liability to you under or in connection with these Terms or the Services, whether arising in contract, tort (including negligence) or otherwise, shall in no event exceed the amount equal to the total Service Fees paid by you under this Agreement for the six month period immediately before the date the claim arose.
- Time bar: You cannot bring any claim against us under these Terms at any time after:
  - the date falling six (6) months after the alleged liability arose; or
  - 3 months after the date of termination of these Terms,

whichever is earlier.

Exclusions: Subject to the “Exceptions” below, neither party will be liable to the other party for:
- loss of profit, loss of revenue, loss of or damage to data, loss of business opportunity, any business interruption or damage to goodwill;
- any indirect, consequential or special loss or damage,

and we will not be liable to you:

for any interference or restriction in the access to Adwords and/or for the content of, or images and graphics on, your advertisements; or
if you are subject to any internet fraud, cyber warfare, cyber attacks or cyber sabotage, spam attack and/or any other malicious activities.

Exceptions: Nothing in this clause 12 shall limit either party’s liability:
- to pay any Service Fees under clause 7;
- in connection with any indemnity provided in this Agreement;
- for death or personal injury caused to any person; or
- for fraud or fraudulent misrepresentation.

Termination
- Breach: Either party may terminate these Terms by notice to the other party if the other party commits a material or persistent breach of this Agreement which is incapable of remedy and the other party fails to remedy that breach within five (5) Business Days after receipt of notice by that party requiring the breach to be remedied. For the avoidance of doubt, a material breach includes, but is not limited to, your failure to pay any Service Fees under clause 7.
- No-fault termination: Either Party may terminate these Terms at any time by giving notice to the other party. Termination by us under this clause will take effect five (5) Business Days after receipt of notice by you. Termination by you under this clause will take effect at the end of your then-current (prepaid) subscription period, unless a shorter notice period is otherwise agreed by us in writing (in our sole discretion). You will be entitled to a refund of any prepaid Service Fees for Services not yet performed by us if we terminate under this clause, however you will not be entitled to a refund of any prepaid Service Fees if you terminate under this clause.
- Consequences of termination: On termination or expiry of these Terms for any reason:
  - the termination or expiry shall be without prejudice to either party’s accrued rights and remedies;
  - all licenses and other rights of use granted (including your right to continue using any aspect of the Services) under these Terms will immediately terminate;
  - each party must return to the other party all property, documents and materials belonging to the other party that is in that party’s possession or control;
  - you must pay all Service Fees owed by you up to the date of termination or expiry, to be paid within five (5) Business Days (to the extent not already paid in advance); and
  - clauses 7, 9, 10, 12, 13, 14, 15 and 16, together with other provisions that are by their nature intended to survive, will remain in effect.

Dispute Resolution
- Dispute notice: If there is a dispute between the parties in relation to these Terms, either party must give the other party notice of the nature and details of the dispute.
- Negotiation: Within ten (10) Business Days of receipt of the notice of dispute, senior managers of the parties shall meet to endeavour to resolve the dispute.
- Mediation: If the dispute is not resolved within twenty (20) Business Days of receipt of the notice of dispute, either party may by notice to the other party refer the dispute to mediation. The mediation will be in Auckland and conducted under the LEADR New Zealand Incorporated (LEADR) standard mediation agreement. If the parties do not agree on a mediator or the mediator’s fees within ten (10) Business Days of receipt of the notice of mediation, the mediator shall be appointed or the fees set by the chair of LEADR (or his/her nominee) at the request of either party.
- Urgent relief: Neither party may initiate or commence court or arbitration proceedings relating to a dispute without first complying with the procedure set out in this clause 14. However, nothing in this clause 14 will preclude a party from seeking urgent interlocutory relief before a court.
- Dispute confidentiality: For the avoidance of doubt, the fact and any details of a dispute between the parties shall be regarded as Confidential Information for the purposes of these Terms.
Notices
- Notices: Each notice or other communication given under this Agreement (each a notice) shall be in writing and delivered personally or sent by post or email to the address of the relevant party from time to time designated by that party in writing to the other party for such purpose.
- Receipt: A notice under these Terms is deemed to be received if:

(a) Delivery: delivered personally, when delivered;

(b) Post: posted, three (3) Business Days after posting or, in the case of international post, ten (10) Business Days after posting; and

(c) Email: sent by email, one hour after the time on the Business Day it actually comes to the recipient’s attention in readable form,

provided that any notice deemed received after 5 pm or on a non-Business Day shall be deemed to have been received on the next Business Day.

General
- Assignment: You may not assign or transfer any or part of these Terms without our prior written consent (not to be unreasonably withheld). The rights provided to you under these Terms are personal to you and are not granted to any of your Related Companies, unless otherwise agreed in writing.
- Entire agreement: These Terms and any separate agreement, including any current Campaign, and agreements regarding pricing and/or subscription type constitute the entire agreement of the parties and supersedes all prior agreements, arrangements, understandings and representations (whether oral or written) given by or made between the parties, relating to the matters dealt with in these Terms.
- Force majeure: A party shall not be liable for any breach of these Terms to the extent such breach is due to an event or circumstance beyond the reasonable control of a party, such as an act of God (but excluding lack of funds).
- Further assurances: Each party shall, at its own expense, promptly sign and deliver any documents, and do all things, which are reasonably required to give full effect to the provisions of these Terms.
- Relationship: The parties are independent contractors, and these Terms do not create any partnership, agency or employment relationship between them.
- Severance: If any provision of these Terms is illegal, invalid or unenforceable, that provision shall be read down to the extent necessary to make it legal, valid and enforceable.
- Waiver: A waiver of a right under these Terms is ineffective unless it is in writing.
- Governing law and jurisdiction: These Terms are governed by New Zealand law and the parties irrevocably submit to the non-exclusive jurisdiction of the New Zealand courts.

Last updated 16^th April 2018

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