1 Our Agreement
1.1 We provide an online referral networking community described in clause 2 below (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) a collaborative, online community designed, primarily to assist small and medium enterprises (SME’s), consultants and freelancers to promote themselves and help other similar businesses to do the same;
(b) a range of free services (as described in the Table describing level of memberships) to those Members that register for The Sticky Handshake basic account;
(c) a range of additional services, features and functionality (as described in the Table describing level of membership) to those Members that register and pay for a “Sticky Plus” account (Premium Account).
2 The Sticky Handshake
2.1 The Sticky Handshake comprises the forums, advertising, communications and other features and services we make available to Members on our website from time to time. Currently, these features include the forums, videos, advertising pages, lead generation and other notifications and communications, and other benefits and features available within our website to Members. We may change, alter or discontinue any component of The Sticky Handshake at any time in our sole discretion without notice or explanation.
2.3 We reserve the right to limit your use of The Sticky Handshake including your points or rewards or other benefits associated with Your Account, your ability to contact other Members or your number of connections. We also reserve the right to restrict, suspend or terminate Your Account if we believe that you may be in breach of this agreement or law or are otherwise misusing The Sticky Handshake.
3. Your Account
3.1 You may register for a The Sticky Handshake account (Your Account) 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.
3.2 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 clause 3.
3.3 The Sticky Handshake is only available for use by persons that are of Minimum Age.
3.4 To use the Sticky Handshake, you agree and confirm that:
(a) you are of Minimum Age;
(b) you will only have one Your Account; and
(c) you are not already restricted by us from using The Sticky Handshake.
3.5 Your right to use The Sticky Handshake is personal to you – that means as between you and others (including your employer) Your Account belongs to you. You acknowledge and agree that you are responsible for all activity under or arising out of Your Account. Without limiting the foregoing:
(a) You may not authorise others to use Your Account.
(b) You must notify us via email to firstname.lastname@example.org 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.
(c) You must not use any other person’s The Sticky Handshake account, unless you have that person’s express permission to do so.
(d) You must not use Your Account or your user ID for or in connection with the impersonation of any other person.
(e) 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.
(f) 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.
3.6 If you purchase any of our paid services (Paid Services), you agree to pay us the applicable fees and taxes specific to those Paid Services. Failure to pay amounts due will result in the termination of your Paid Services and we will have no liability to you in that regard. Also, you agree that:
(a) Your purchase may be subject to foreign exchange fees or differences in prices based on location.
(b) We may store and continue billing your payment method (such as your credit card) even after it has expired, to avoid interruptions in the Paid Services we provide to you and to use to pay for other Paid Services you may purchase from us from time to time.
(c) If you purchase any Paid Services that are subject to recurring payment (such as a Premium Account), your payment method will be charged automatically at the start of each subscription period for the fees and taxes applicable to that period. To avoid future charges, cancel your recurring Paid Service before the renewal date.
(d) All of your purchases are subject to our refund policy. We apologise for any inconvenience, but we do not provide refunds on any fees or charges, including partially used periods or bank/merchant fees.
(e) We may calculate taxes payable by you based on the billing information that you provide us at the time of purchase.
3.7 If you purchase a Premium Account you acknowledge and agree that, if your Premium Account is cancelled for any reason, then:
(a) We will end corresponding billing at the end of your current billing cycle.
(b) You will only be able to delete your payment method at the end of your current billing cycle.
(c) Your Account will return to a free basic account which – unless we notify you otherwise – will enable you to retain your profile, connections and other data that we host. However, you will lose access to all of the Premium Account features and services as soon as the cancellation takes effect at the end of your current billing cycle.
(d) If you cancel your Premium account, and do not return to a free basic account, access to all accumulated Sticky Points, Sticky Coins and other points and credits accrued to Your Account will be lost at the end of your billing cycle and cannot be granted back to you.
(e) If you were on a plan, promotion or price that is no longer offered, you may not be able to re-purchase that same plan again or re-purchase a Premium Account at the same promotional price.
3.8 To cancel your Premium Account:
(a) Where you wish to cancel Your Account, you may do so by notifying cancellation by email to email@example.com. We will aim to process your cancellation request within 2 working days following receipt of your email notification.
3.9 To cancel any other Paid Service (that is not a Premium Account):
(a) You may do so by notifying cancellation by email to firstname.lastname@example.org. We will aim to process your cancellation request within 2 working days following receipt of your email notification.
4 Your Content
4.1 Our Acceptable Use Policy sets out some important guidelines and rules regarding your content, advertisements and communications that utilise any of the services we offer from time to time. It is important that you read our Acceptable Use Policy and watch for each update to that policy, to ensure that your use of The Sticky Handshake complies with your obligations to us. 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) will always comply with our Acceptable Use Policy.
4.2 You may edit your content to the extent permitted using the editing functionality made available on our website.
4.3 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.
4.4 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. We may also moderate any or all of your content, as we determine appropriate in our sole discretion.
4.5 You must also comply at all times with our Acceptable Use Policy, which sets out some important guidelines and rules regarding your content, advertisements and communications that utilise any of the services we offer from time to time.
5 Other content, sites and apps
5.1 By using The Sticky Handshake, you may encounter content or information that might be inaccurate, incomplete, delayed, misleading, illegal, offensive or otherwise harmful. We generally do not review content provided by our Members or others. You agree that we are not responsible for others’ (including other Members’) content or information. We cannot always prevent this misuse of our services, and you agree that we are not responsible for any such misuse.
5.2 You are responsible for deciding if you want to access or use third party apps or sites that link from our website. Third party apps and sites have their own legal terms and privacy policies, and you may be giving others permission to use your information in ways we would not. Except to the limited extent it may be required by applicable law, we are not responsible for these other sites and apps – use these at your own risk.
6 Ownership and branding
6.1 As between the parties, we own all Intellectual Property Rights in every aspect of The Sticky Handshake, including in respect of the Trade Marks, our website, and any documents or materials we may provide (The Sticky Handshake Materials).
6.2 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.
6.3 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.
6.4 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.
7 Confidentiality and Publicity
7.1 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).
7.2 In relation to your Confidential Information:
(a) 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 7; and
(b) 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 7.2.
7.3 In relation to our Confidential Information:
(a) 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);
(b) 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;
(c) you undertake to ensure that the persons mentioned in clause 7.3(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 7.3 (which you must ensure is adhered to).
7.4 The restrictions imposed by this clause 7 shall not apply to the disclosure of any Confidential Information which:
(a) is now in, or subsequently comes into, the public domain other than as a result of a breach of this clause 7;
(b) 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
(c) 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).
8.2 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.
8.3 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 when you receive it.
8.4 You agree that we will provide notices to you in the following ways: (1) a notice within The Sticky Handshake website or services, or (2) a message sent to the contact information you provided us (e.g., email, mobile number, physical address).
8.5 The Sticky Handshake allows messaging and sharing of information in many ways, such as your profile, links to news articles, deals and job postings, blogs, leads and referrals. Information and content that you share or post may be seen by other Members or visitors to our website. Where we have made settings available, we will honor the choices you make about who can see content or information.
9 Suspension and termination
Material default by a party
9.1 A party will be in material default under this agreement if:
(a) it fails to properly or promptly perform any material obligation under this agreement that is incapable of remedy;
(b) it 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;
(c) it suspends or ceases its primary, or all of its, business activities for more than five consecutive working days;
(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;
(e) any resolution is passed or any proceeding is commenced for its winding up or liquidation (whether on a voluntary or involuntary basis); or
(f) any event analogous to those listed in paragraphs 9.1(d)(i), (d)(ii) or (d)(iii) occurs.
Right to suspend or terminate
9.2 If a party is in material default as specified in clause 9.1, the other party may terminate this agreement by written notice.
9.3 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:
(a) send you one or more formal warnings;
(b) temporarily suspend your access to our website or Your Account;
(c) permanently prohibit you from accessing our website or Your Account;
(d) block computers using your IP address from accessing our website or Your Account;
(e) contact any or all of your internet service providers and request that they block your access to our website;
(f) commence legal action against you, whether for breach of contract or otherwise; and/or
(g) suspend or delete Your Account.
9.4 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).
9.5 If a Force Majeure Event under clause 13.1 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.
9.6 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 email@example.com. We will aim to process your cancellation request within 2 working days following receipt of your email notification.
Access to all accumulated Sticky Points, Sticky Coins and other points and credits accrued to Your Account will be lost on termination of your Account and cannot be granted back to you.
Consequences of termination
9.7 On lawful termination of this agreement:
(a) you will cease using the The Sticky Handshake Materials and all other Intellectual Property Rights of ours;
(b) 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
(c) you must not solicit any Members for any purpose that may be adverse to our business interests.
Survival of rights and remedies
9.8 Termination of this agreement will not affect:
(a) 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
(b) the provisions of this agreement which expressly, or by their nature, survive termination, including clause 4 (Your Content), clause 5 (Ownership and branding), clause 7 (Confidentiality and Publicity), clause 8.3 (Suspension and termination), clause 11 (Our liability) and clause 13 (General).
10 Important Confirmations
10.1 You represent and warrant to us that:
(a) you have full power and capacity to execute, deliver and perform your obligations under this agreement;
(b) 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; and
(c) you will at all times comply with all applicable laws and regulations with respect to your activities.
10.2 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 10.1.
11 Our liability
11.1 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 or regarding the acts or omissions of Members. Except as otherwise set out in this agreement, we expressly disclaim all warranties, express and implied to the fullest extent permitted by law. Without limiting the foregoing, although efforts are made to ensure The Sticky Handshake Material on our website is current, complete and accurate, to the extent permitted by law:
(a) The Sticky Handshake and The Sticky Handshake Material is provided without any guarantees, conditions or warranties, express or implied;
(b) 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, and the acts or omissions of Members;
(c) 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.
11.2 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:
(a) for death or personal injury resulting from negligence;
(b) for fraud or fraudulent misrepresentation; or
(c) to the extent that such limitation or exclusion is not permitted under applicable law.
11.3 Subject to clause 11.2, 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.
11.4 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:
(a) we are a limited liability entity;
(b) 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).
12.1 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.
12.2 If the Dispute is not resolved within 10 working days of a written notice first being given pursuant to clause 12.1, the Dispute will be referred to arbitration before an arbitrator under the Arbitration Act 1996.
12.3 Nothing in this clause 12 prevents a party seeking urgent relief in a court of competent jurisdiction.
13.1 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:
(a) the failure or delay is due to a Force Majeure Event;
(b) 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
(c) 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 9.5.
13.2 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).
13.3 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.
13.4 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:
(a) for hand delivery, at the time of actual delivery to the recipient’s address;
(b) for registered mail, 3 working days after posting;
(c) 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).
13.5 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.
13.6 Costs: Each party will pay its own costs of and incidental to the negotiation, preparation, execution and enforcing, or attempting to enforce, this agreement.
13.7 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.
13.8 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.
13.10 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.
13.11 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.
13.12 Statutory and Regulatory Disclosures: The Sticky Handshake Limited is registered in New Zealand.
13.13 Our Details: You can contact us by writing to firstname.lastname@example.org
14 Definitions and interpretation
14.1 Definitions: The following definitions apply in this agreement –
Acceptable Use Policy means our acceptable use policy found here (and also linked at the bottom menu on our website), as updated from time to time.
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).
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 12.1.
Force Majeure Event means an event or occurrence:
(a) which is beyond our or your (as the case may be) reasonable control; and
(b) 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.
Minimum Age means 16 years old (or such other minimum age as the law requires in order for us to provide the Sticky Handshake to you without parental consent) or older.
our website means the The Sticky Handshake website located at TheStickyHandshake.com.au and TheStickyHandshake.com.au
Paid Service has the meaning set out in clause 3.6.
Permitted Purpose has the meaning set out in clause 7.1.
Premium Account has the meaning set out in clause 1.1(c).
Your Account has the meaning set out in clause 3.1.
your content has the meaning set out in clause 4.1.
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 6.1.
14.2 Interpretation: In this agreement, unless the context indicates otherwise:
(a) Words in the singular include the plural and those in the plural include the singular.
(b) References to including or includes shall be deemed to have the words “without limitation” inserted after them.
(c) 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.
(d) Writing or written includes faxes but neither e-mail nor any other form of electronic communication, except where expressly provided