terms

 

Terms of Service

These terms and conditions comprise the terms on which we will provide services and platform access to you (Terms of Service).

1 Term

1.1 A legally binding agreement will be formed on the date you accept the Terms of Service by marking “Accept T&C’s” during sign up and will remain in full force and effect until the agreement is terminated in accordance with these Terms of Service.

2 Accepting the terms

2.1 By engaging us to provide the Service and registering for access to the Platform, you accept and agree to be bound by these Terms of Service between you and Vesta eCommerce Limited of Auckland, New Zealand (“we”, “us”, “our” and other similar expressions).

2.2 You acknowledge that these Terms of Service are between you and us only.

3 Defined terms

3.1 In these Terms of Service the following words have the following meanings:

Brand” means your brand and includes trade marks and names;

Intellectual Property Rights” has the meaning given in clause 13.2;

Platform” means the Vesta product data distribution platform as further described on the Website;

Product Data” has the meaning given in clause 8;

Service” has the meaning given in clause 5.1;

Support Services” has the meaning given in clause 5.1(b);

your Site or App” means you online store, website, web or mobile application or e-commerce facility, and excludes the Website;

Website” means https://www.vesta-central.com/.

4 Variation

4.1 We may at any time vary the Terms of Service by publishing the varied Terms of Service on our Website and/or Platform. You accept that by doing this, we have provided you with sufficient notice of the variation and agree to be bound by the most current version of the Terms of Service published on the Website and/or Platform.

5 Service

5.1 The Service means:

(a) utilisation of the tools, systems and various engines included in the Platform; and

(b) provision of ongoing support for the Platform (“Support Services”).

5.2 Your access to, and continued use of, the Platform and Service are contingent on, and at all times subject to, payment of the monthly fees for the Service.  Except as otherwise expressly stated in these service terms, no other right, title or interest in the Platform are granted to you.

6 Fees and Payment

6.1 The fees payable for the Platform are set out under the My Account > Usage & Plan.  The fees payable may vary from time to time by notice being published on our website.  Changes to the fees will take effect in the month immediately following the date of the change.

6.2 Unless otherwise agreed, payment terms are that our fees will be billed monthly in advance to the credit card on file on your monthly anniversary date.

6.3 For the avoidance of doubt, you must still pay the monthly fees in accordance with this clause even if you have chosen not to use data provided by the platform.

6.4 All pricing excludes applicable Tax and will be charged in USD/AUD/NZD depending on your currency selection (Tax includes sales tax, VAT, GST and taxes of a similar nature).  You must pay all our fees without deduction or set off.

7 Content provided by You

7.1 If the plan that you choose allows for data customisation, you may do so using the tools provided within your portal at no additional cost to you. 

7.2 All content that you submit should be copies and not originals and should be of a high quality standard. 

7.3 We reserve the right, in our sole discretion, to refuse to use any content we believe is objectionable, defamatory, obscene, harassing, threatening, or unlawful or which may infringe on the intellectual property or privacy rights of a third party. 

7.4 Unless we have otherwise expressly agreed, we will not return any content to you and you are responsible for maintaining back-up copies of all submitted content.  Under no circumstances will we be responsible or liable for any loss or damage to any of your content.

7.5 We claim no ownership over your content.  You expressly grant us a worldwide, perpetual, irrevocable, non-exclusive, royalty-free licence to cache the entirety of the data including your content. You agree that any such caching is not an infringement of any of your Intellectual Property Rights or any third party’s Intellectual Property Rights.

7.6 Where data is used for purposes such as, but not limited to, your Site or App, we are not responsible for any content (including, but not limited to the Product Data) contained on your Site or App. You are solely responsible for ensuring that your Site or App complies with all applicable laws and regulations and does not infringe any third party’s rights at all times, and that all information on your Site or App is accurate and complete.

7.7 Before using our integration tools to make any changes to your data it is strongly recommended you have appropriate back-ups. Under no circumstances will we be responsible or liable for any loss or damage to any of your content.

7.8 You represent and warrant to us that:

(a) you have full rights to use, broadcast and distribute any content that you supply;

(b) the content that you supply is truthful and not misrepresentative or misleading and does not plagiarise, libel, defame, or harm any party;

(c) your use of the Platform will not invade the rights of privacy of any third party or otherwise infringe on or violate the rights or property interests of any third party.

8 Product Data supplied by us

8.1 For the purposes of this agreement, “Product Data” means the visual and written materials in relation to products offered for sale or supply by suppliers and manufacturers (and any updates to those materials from time to time) made available to you by us, including, but not limited to, photographs, descriptions, attributes, hyperlinks, screen shots, sizing, dimensions, pricing, weights for shipping calculations. 

8.2 Subject to clauses 8.3 and 8.6, we may make Product Data available to you for utilization in marketing materials and digital mediums.  For this purpose, we grant you a royalty-free, non-exclusive, revocable, worldwide licence to make use of that Product Data for the term of this agreement.

8.3 Prior to us providing any Product Data, you must first provide us with a schedule setting out each of the products that you wish to stock and sell in your business. This is done using the upload and synchronisation tools found within your portal.  

8.4 You warrant that all information that you provide in accordance with clause 8.3 is true and correct and not misleading.

8.5 We will only make Product Data that relates to products set out in your Product Schedule available for display.

8.6 You may not distribute, decompile, sell, rent, sublicense or translate any Product Data or grant any other person or entity the right to do so.  Ownership of all Product Data will remain at all times ours or our supplier’s (or the relevant third party).

8.7 We gather the required Product Data in one of two ways:

(a) Product Data is provided directly by a supplier and placed within Vesta Central in order to make it available to you; or

(b) a Supplier gives us permission to gather, via our integration services, the Product Data directly from an existing website, digital asset management system, product information management system  or marketing resource owned by that Supplier.

8.8 If you request particular Product Data that we do not currently hold, we will contact the relevant supplier directly and request the Product Data and/or permission to use Product Data from the supplier’s existing marketing resources on your behalf.

8.9 If a supplier is unable to provide Product Data on a specific product for any reason this will be recorded, and we will provide you with a list of any products in relation to which Product Data cannot be obtained. This can be viewed at any time through your portal.

8.10 You acknowledge that while we use our reasonable endeavours to gather Product Data on every product requested by you we do not guarantee that information will be available or provided in a timely manner. Data is provided entirely at a supplier’s discretion as their time allows.

8.11 You acknowledge that while we use our reasonable endeavours to gather Product Data on every product requested by you, information on spare and/or replacement/service parts may be limited and only provided at the supplier’s discretion.  Accordingly, we do not guarantee that information on spare and/or replacement/service parts will be available.

8.12 You consent to us disclosing details of your name and key contact details to the supplier if requested by the supplier for the purpose of verifying that you are a distributor of the supplier’s products.

8.13 We expressly disclaim all liability to you or any third party for any infringement of intellectual property or proprietary rights and that we will be responsible for, or provide any advice or guidance in respect of, any potential Intellectual Property Rights issues which may arise from your use of the Product Data.

9 Ownership and Use of Product Data

9.1 You acknowledge that:

(a) we do not own, or have exclusive rights to use, the Product Data;

(b) we do not warrant that the Product Data is accurate, complete or current or that it does not infringe the Intellectual Property Rights of any third party;

(c) we do not verify the content of the Product Data;

(d) a supplier may add to or change Product Data, or request for Product Data to be returned to it and withdrawn from the Platform without prior notice;

(e) we are not liable for any loss that you may suffer as a result of any Product Data being inaccurate, incomplete or out of date or being withdrawn by a supplier;

(f) we will not edit, change or otherwise manipulate any Product Data other than necessary formatting or customisation to ensure that the Product Data is able to be displayed legibly;

(g) the Product Data is supplied ‘as is’ and is subject to any changes, alterations or additions the supplier may require from time to time; or

(h) any Product Data provided by a supplier remains the property of that supplier at all times.

9.2 Product Data can only be changed using the tools provided through your portal.

9.3 If we form the view (acting reasonably) that certain Product Data breaches the Intellectual Property Rights of any third party or has been plagiarised, we reserve the right to remove such Product Data from the Platform and without notice to you.

9.4 Where a supplier is not willing to provide its Product Data, it may be willing to provide a ‘Link back’ to the product page of their Site or App.  In this event, the provisions of clause 11 will apply.

9.5 If, during the term of this agreement, you are dissatisfied with the quality of any of the Product Data being provided, notify us in writing and we will use reasonable endeavours to contact the supplier and obtain a replacement of the affected Product Data. It is suggested that before doing so you discuss this issue with the relevant supplier directly.

10 Hyperlinks

10.1 You may elect to include links that gives a user access to the communications, content, products, services or websites of a third party (“Third-Party Content”) over which we have no control. 

10.2 We do not monitor, investigate, sponsor, endorse, adopt, confirm, guarantee or approve the Third Party Content. We do not control and make no representation about the accuracy, integrity, or quality of Third-Party Content.

10.3 Your access to and use of Third-Party Content is at your sole discretion and risk. We have no liability to you in connection with your access to and use of the Third-Party Content.

11 Analytical data

11.1 You acknowledge that, subject to clause 9.2, we may:

(a) generate analytical data as a result of, or about, the use of the Platform and Product Data (including the use of the Product Data in your Site or App) by you and the end users of your Site or App (“Analytical Data”);

(b) use the Analytical Data for our internal research, analytical and product development purposes, and to conduct statistical analysis and identify trends and insights; and

(c) supply the Analytical Data to third parties.

11.2 You may, using the tools provided through your portal:

(a) opt out of the collection of Analytical Data;

(b) opt out of us supplying the Analytical Data to any third party;

(c) require us, when supplying the Analytical Data to any third party, to only do so an anonymised and aggregated basis; or

(d) authorise us to provide identifiable details about you to another person (which may include providing your contact details to suppliers on our Platform, in which case you consent to that supplier contacting you to discuss the Analytical Data).

12 Support Services

12.1 We will supply the Support Services to you in consideration for payment of the monthly fees in accordance with clause 6.2.

12.2 If you do not pay the monthly fees, we will immediately cease providing the Support Services.

12.3 The nature of the Support Services will vary depending on plan that you choose.

13 Your obligations

13.1 You must provide us with such co-operation and support as we may reasonably request to perform the Service including by:

(a) providing accurate and prompt responses to our requests for any information or documentation reasonably required by us to perform the Service.

(b) ensuring that all information that you provide to us including, without limitation, when creating any account must be accurate, current and complete and must be maintained by you on an ongoing basis.

13.2 You must not, nor cause or permit a third party to:

(a) use the Platform in a manner or for a purpose which is improper, immoral or fraudulent, which infringes any person’s rights (including all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, trademarks, know-how, confidential information, patents, inventions and discoveries and all other rights (including moral rights) resulting from intellectual activity in the industrial, scientific, literary or artistic fields (Intellectual Property Rights”)) or which restricts or interferes with our provision of the Service to any other customer or user;

(b) reverse engineer, disassemble or decompile all or part of the Platform or attempt to derive the source code or structure of the Platform (except as and only to the extent any foregoing restriction is prohibited by applicable law);

(c) modify, reproduce, or create derivative works of the Platform;

(d) remove any copyright or other proprietary notices contained in the Platform;

(e) directly or indirectly export or re-export the Platform; or

(f) remove, circumvent, or interfere with any digital rights management or security tools or other similar technologies available on or in the Platform.

13.3 You agree that you will not use the Platform to:

(a) upload or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data;

(b) attempt to gain unauthorised access to, or interfere with, servers or networks connected to or used with the Platform or violate the policies of such networks, through hacking, or any other means; or

(c) use the Platform or the Service to engage in any illegal or unlawful activity, whether intentionally or unintentionally.

13.4 You agree that you are solely responsible for the backup of any data, websites or information (including without limitation email files, databases, hosted files etc) which may be replaced pursuant to the provision of the Service (including, without limitation as a result of the publishing of the data).

13.5 Other than in respect of any Product Data provided, you are solely responsible for ensuring that you have all requisite rights and licences to the content you publish and use. 

14 Authorisations

14.1 You grant us a worldwide, perpetual, royalty-free and sub-licensable licence to create, publish and use screen shots or depictions of your Site or App and your Brand (including any content) for our marketing activities.  You may withdraw consent to this use by notifying us in writing and we will take reasonable steps to process your removal request.

14.2 You agree you are responsible for obtaining agreement and/or consents required of any third parties in connection with the grant of any licences to us under these Terms of Service. 

15 Intellectual Property

15.1 Nothing in this agreement transfers to either party any Intellectual Property Rights owned by the other party existing prior to the commencement of the Service. 

15.2 All Intellectual Property Rights in the Platform and any content provided, other than those pre-existing Intellectual Property Rights are and will remain owned by us and you hereby assign such Intellectual Property Rights in the Platform (both present and future) to us. 

16 Limitation of liability

16.1 Nothing in these Terms of Service is or should be interpreted as an attempt to modify, limit or exclude terms, condition, warranties and guarantees which are imposed by any applicable law and which cannot be modified, limited or excluded (including statutory rights under any applicable consumer protection legislation) (a Non-Excludable Provision).  To the fullest extent permitted by law, we exclude all other terms, conditions, warranties and guarantees which might be implied into these Terms of Service.

16.2 Other than any Non-Excludable Provision, you do not rely on any representation, term, warranty, condition, guarantee or other provision made by us or on our behalf which is not expressly stated in these Terms of Service.  In particular, the Service and the Platform are provided on an “as-is” and “as available” basis and we make no warranty or representation that:

(a) the Platform and/or Service will meet your requirements;

(b) the Platform will be compatible with your mobile device or computer;

(c) the Platform and/or your use of the Product Data and other services provided by us will lead to an increase in sales for your business;

(d) the Platform or the Product Data will be available on an uninterrupted, timely, secure, or error-free basis;

(e) the Platform or the Product Data will not infringe the Intellectual Property Rights of any person;

(f) the Platform or the Product Data will be accurate, reliable, complete, legal, or safe; or

(g) the Platform or the Product Data is appropriate for use in your specific country, state, region or jurisdiction.

16.3 If we are prohibited from modifying, limiting or excluding your remedy for a breach of the Non-Excludable Provision, then our total liability for breach of the Non-Excludable Provision is limited, at our option, to the supplying of the Service again

16.4 Subject to clauses 16.1 and 16.3, we disclaim any liability under these Terms of Service or in connection with the Service, arising out of any breach of contract, breach of warranty, tort (including negligence and strict liability), breach of statutory duty, under an indemnity or any other theory, including but not limited to any liability arising out of or caused by:

(a) any computer virus, trojan horse or other damage caused by malware or hackers;

(b) any malfunction or failure of our or your software, system, hardware or connectivity;

(c) improper or unauthorised use of the Platform;

(d) your use of the Platform in breach of these Terms of Service;

(e) any reasons beyond our reasonable control or predictability;

(f) any loss of business, loss of revenues, loss of profits, loss of goodwill, loss of content, loss of data, or any other indirect, special, consequential, exemplary or punitive damages.

17 Security

17.1 You must make your own precautions to ensure that the process which you use for accessing the Platform and using the Service does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your computer or mobile device.

18 Availability and support

18.1 While we intend to make the Platform available 24 hours a day, seven days a week, we may temporarily limit or suspend the availability of all or part of the Platform if it is necessary for reasons of public safety, security or maintenance of the Platform, interoperability of Platform, data protection or to perform work that is necessary for operational or technical reasons.

19 Ownership

19.1 We (and our licensors, where applicable) own all right, title and interest, including all related Intellectual Property Rights, in and to the Platform.  No rights of ownership in or related to the Platform, are conveyed to you.  The Vesta name and related logos belong to us (and our licensors, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. We (and our licensors, where applicable) reserve all rights not granted in these Terms of Service.

19.2 In the event of any third party claim that the Platform or your possession and use of the Platform infringes that third party’s Intellectual Property Rights, we will be solely responsible for the investigation, defence, settlement and discharge of any such claim.

20 Privacy

20.1 Each of us (i.e. you and we) must comply with all applicable laws and codes dealing with an individual’s privacy.

20.2 We collect, store, use and disclose personal information in accordance with our privacy policy – available here https://www.vesta-central.com/Privacy.

21 Indemnity and release

21.1 You indemnify and release us, our suppliers and each of our and our suppliers’ affiliates and their respective officers, agents, partners, directors, shareholders, suppliers and employees from and against any loss, damages, liabilities, claims, demands, suits, expenses, including reasonable legal fees which any such party may incur arising out of or relating to:

(a) content or your modification, display and use of the Platform;

(b) claims that the products and services offered on the Platform are defective, injurious or harmful or violate the rights of any third party; and

(c) claims arising as a result of a breach by you of the Terms of Service;

(d) our use of, or reliance on, any content (including but not limited to any image, trading names, prices, data, information, specifications, documentation, computer software or other materials) provided by you;

(e) our compliance with any directions or instructions by you in relation to the provision of the Service or your use of the Platform; or

(f) your breach of these Terms of Service.

21.2 We reserve the right, at your expense, to assume the exclusive defence and control of any matter for which you are required to indemnify us and you agree to cooperate with our defence of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

22 Suspension

22.1 We may without notice suspend your access to and use of the Platform and/or the Service if:

(a) you breach these Terms of Service; or

(b) we reasonably believe that your access and use of the Platform and/or the Service will cause technical incapacity to the Platform and/or the Service which will continue unless access or use is suspended.

22.2 You must not object to any delay in restoring access to the Platform or the Service when a suspension is lifted.  We will act promptly to restore access when we are satisfied that the reason for suspension has been removed.

23 Delivery and force majeure

23.1 Timeframes we provide for the performance of services are good faith estimates only.  We will use reasonable endeavours to comply with such time frames but time is not of the essence in the adherence to such time frames.

23.2 We are not responsible for any delay in performing or failure to perform any of our obligations under the contract to the extent that failure is due to an event or circumstance beyond our reasonable control (including any failure by you to perform any of your obligations under the agreement or any of your other wrongful acts or omissions).

24 Termination

24.1 In addition and without prejudice to any other rights or remedies, we may terminate the agreement and your access to the Platform at any time for any reason at our sole discretion with or without notice to you, including if we in good faith believe you have violated any other provision of these Terms of Service.

24.2 You may terminate this agreement at any time on written notice to us

24.3 This agreement will automatically terminate and your access to the Platform and Support Services will immediately cease should you fail to pay any of the fees that become due and payable to us under these Terms of Service.

24.4 On termination of this agreement:

(a) you will not be entitled to any refund of any fees already paid.

(b) your right to use the Platform will automatically terminate immediately.

(c) ongoing support services supplied by us will cease immediately;

(d) all licences granted to you under these Terms of Services will be terminated immediately.

24.5 Termination of the agreement does not affect any accrued rights or liabilities either you or we have under the agreement nor does it affect any provision these Terms of Service which is expressly or by implication intended to operate after termination.

24.6 In addition to any other obligation in these service terms, on cancellation or termination of this agreement, we may delete all data including any content, files (including without limitation email files if applicable) from our systems (including any storage media) without any liability to you whatsoever.

25 Notices

25.1 Notices given under these Terms of Service must be in writing and delivered by email.  The address for delivery of a notice to you is the email address linked to your account.  The address for delivery of a notice to us is:

Vesta eCommerce Limited

Email: support@vesta-central.com

26 General

26.1 These Terms of Service constitute the entire understanding between the parties and supersede all previous and contemporaneous communications, representations, or agreements with respect to your access and use of the Service and/or Platform.

26.2 Nothing in these Terms of Service will create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between you and us

26.3 No failure or delay of either party in exercising any right, power, or privilege under these Terms of Service (and no course of dealing between the parties) operates as a waiver of any such right, power of privilege. No waiver of any default on any one occasion constitutes a waiver of any subsequent default. No single or partial exercise of any right, power, or privilege precludes the further or full exercise of such right, power or privilege.

26.4 If any provision of these Terms of Service is held to be unenforceable, the parties agree to substitute the affected provision with an enforceable provision that approximates the intent and economic effect of the affected provision.

26.5 If any one or more of the provisions of these Terms of Service are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction or a panel of arbitrators, the remaining provisions of these Terms of Service will be unimpaired and will remain in full force and effect.

26.6 Your rights and obligations under these Terms of Service are personal and may not be assigned or dealt with in any way without our approval, which we may withhold in our absolute discretion. 

26.7 Each party must do everything reasonably required by the other to give full effect to these Terms of Service.

26.8 In the interpretation of these Terms of Service, the following provisions apply unless the context otherwise requires: (a) the singular includes the plural and vice versa; (b) a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa; (c) a reference to any gender includes all genders; (d) a reference to any party to these Terms of Service or any other document or arrangement includes that party’s executors, administrators, substitutes, successors and permitted assigns; (e) a reference to dollars or $ means USD; (f) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; (g) headings are for ease of reference only and do not affect interpretation; (h) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these Terms of Service or any part of it; and (i) unless expressly stated to be otherwise, the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar inclusive expressions.

26.9 These Terms of Service and all matters regarding the interpretation and/or enforcement of these Terms of Service, are governed exclusively by the laws in force in New Zealand and the parties submit to the exclusive jurisdiction of the courts of New Zealand.