Terms and Conditions of Service

  1. Definitions
    1. “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
    2. “Contractor” means Cirrus Hawke, Ltd, its successors and assigns or any person acting on behalf of and with the authority of Cirrus Hawke, Ltd.
    3. “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting the Contractor to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
      1. if there is more than one Client, is a reference to each Client jointly and severally; and
      2. if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
      3. includes the Client’s executors, administrators, successors and permitted assigns.
    4. “Services” means all Incidental Items (which includes any printed or virtual material, samples, Website, brands, designs, images, advertising, publications, documents, reports, designs, drawings, files, information, data, graphics, pictures, trademarks or materials supplied, consumed, created or deposited incidentally by the Contractor in the course of it conducting, or supplying to the Client, any Services) or Services (which includes any advice or recommendations, support, marketing, assessment and planning, graphic design of brands, designs, images, or advertising, brand integration or strategies, analysis, training, project management or service sourcing and the organisation of copyrighting such any Incidental Items (including, but not limited to third party applications and/or software) and/or Services) supplied by the Contractor to the Client at the Client’s request from time to time (where the context so permits the terms ‘Incidental Items’ or ‘Services’ shall be interchangeable for the other).
    5. “Software” means any branded Software produced by the Contractor and includes any Software required for operating each individual terminal or application (and where the context so permits shall include any supply of Incidental Items and/or Services as hereinafter defined).
    6. “Copy” shall mean any script, advertisement, general copy, graphics and other digital display material and/or Copy supplied by the Client for the provision of the Services.
    7. “SNT” means any Social Network Tool being a social media platform and/or application which is accessible on the internet through the World Wide Web and which provides multimedia content via a graphical user interface (including, but not limited to Facebook, Twitter, LinkedIn, Pininterest, etc.).
    8. “Website” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
    9. “Prohibited Content” means any content that:
      1. is, or could reasonably be considered to be, in breach of the broadcasting standards or any other applicable law or applicable industry code; or
      2. contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
      3. is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights.
    10. "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
    11. “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including personal information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Services via the website.
    12. “Fee” means the fee payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between the Contractor and the Client in accordance with clause 6 of this Contract. Unless otherwise stated, the Fee shall be in expressed in New Zealand dollars (NZD).

 

  1. Acceptance
    1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by the Contractor.
    2. In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
    3. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
    4. The Client acknowledges that the supply of Services on credit shall not take effect until the Client has completed a credit application with the Contractor and it has been approved with a credit limit established for the account.
    5. In the event that the supply of Services request exceeds the Clients credit limit and/or the account exceeds the payment terms, the Contractor reserves the right to refuse delivery.
    6. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
    7. The Client acknowledges and agrees that any expected or estimated outcomes concerning increased sales, market share or penetration achieved by the Client derived from marketing activities undertaken by the Contractor on the Client’s behalf, expressed in consultation or estimates, are speculative and in no way constitute a guarantee. In addition, where the Client makes changes to their Website, SNT or advertising campaign information without prior discussion with the Contractor, any such changes may negatively affect any costs and results.
    8. None of the Contractor’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Contractor in writing nor is the Contractor bound by any such unauthorised statements.
    9. Once accepted by the Client, the Contractor’s quotation, proposal or brief shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal or email instructions (or acceptance) only are received from the Client, the Contractor shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
    10. The Client acknowledges that:
      1. Services provided by the Contractor are subject to availability and only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade. The Contractor shall be entitled to change any distribution date at any time without notice;
      2. any advice, recommendation, information, assistance or service provided by the Contractor in relation to Services supplied is given in good faith, is based on the Contractor’s own knowledge and experience which shall not be deemed as specialist advice and shall be accepted without liability on the part of the Contractor and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services;
      3. where colour matching is required, the Client agrees to supply information and samples regarding the correct colour;
      4. the Contractor reserves the right not to undertake any Services, refuse to accept any Copy supplied by the Client, withdraw any advertisement or publication at any time for any reason (including where such, in the Contractor’s opinion is or may be unlawful, offensive, contains Prohibited Content, does not comply with clause 17.1(a), or is otherwise inappropriate), and the Contractor shall not be liable to the Client for any such action;
      5. the Contractor will endeavour to place any advertisement in the position requested by the Client; however, they cannot always do so and shall not be liable to the Client where any advertisement does not appear in the place requested;
      6. the Contractor does not guarantee the SNT’s performance;
      7. display on the SNT does not guarantee the availability of any particular goods; therefore, all orders placed through the Client’s Website as a result of any post or other communication posted shall be subject to confirmation of acceptance by the Client;
      8. the ability to post communications on a SNT may be unavailable from time to time due regularly scheduled maintenance and/or upgrades by the SNT provider;
      9. there are inherent hazards in electronic distribution, and as such the Contractor cannot warrant against delays or errors in posts appearing on any SNT.
    11. With changes in technology, changes in internet use and SNT visiting patterns, particular SNT availability/life cycle, the Contractor may suggest changes to the original proposal and recommend an alternative service. Any such suggestions and/or recommendations shall be communication to the Client prior to implementation of any changes.
    12. The Client acknowledges that:
      1. all SNT used in the provision of the Services are subject to the terms and condition of service of the third party provider and as such it is the Client’s responsibility to be familiar with those terms and conditions; and
      2. in the Contractor’s use of the Client’s SNT, the Contractor is acting as the Client’s agent and any liability arising from the use of the SNT account/s shall be the Client’s responsibility.
    13. The Client accepts and acknowledges that the Client shall be responsible for the accuracy of any statements in the advertisements made with regard to the Client’s products and/or services and that the Contractor is relying on the information supplied by the Client and as such the Contractor has not made any independent enquiry as to the accuracy of the information which the Client warrants as being true and correct.

 

  1. Authorised Representatives
    1. The Client acknowledges that the Contractor (for the duration of the Services) shall liaise directly with one (1) authorised representative, and that once introduced as such to the Contractor, that person shall have the full authority of the Client to order any Services and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to the Contractor for all additional costs incurred by the Contractor (including the Contractor’s profit margin) in providing any Services or variation/s requested thereto by the Client’s duly authorised representative.
    2. In the event that the Client’s duly authorised representative as per clause 3.1 are to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise the Contractor in writing of the parameters of the limited authority granted to their representatives.
    3. In the event that the authorised representative changes, the Contractor must be notified in writing of this change. Where an unauthorised representative gives the Contractor a direct instruction it will not be followed unless the authorised representative has given that unauthorised representative permission to request work. The permission must be in writing.

 

  1. Errors and Omissions
    1. The Client acknowledges and accepts that the Contractor shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      1. resulting from an inadvertent mistake made by the Contractor in the formation and/or administration of this Contract; and/or
      2. contained in/omitted from any literature (hard copy and/or electronic) supplied by the Contractor in respect of the Services.
    2. In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of the Contractor; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

 

  1. Change in Control
    1. The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone number/s, or business practice). The Client shall be liable for any loss incurred by the Contractor as a result of the Client’s failure to comply with this clause.

 

  1. Fee and Payment
    1. At the Contractor’s sole discretion the Fee shall be either:
      1. as indicated on any invoice provided by the Contractor to the Client; or
      2. the Fee as at the date of delivery of the Services according to the Contractor’s current price list; or
      3. the Contractor’s quoted price (subject to clause 7.1) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. If through the Client’s error, or omission, the Services have to be redone or alterations or additions to specifications are required, then the Contractor may make an additional charge. The Client acknowledges and agrees that the Fee is quoted on the condition that all sign work is ordered, manufactured and delivered/installed/uploaded at the same time.
    2. At the Contractor’s sole discretion a deposit may be required.
    3. Time for payment for the Services being of the essence, the Fee will be payable by the Client on the date/s determined by the Contractor, which may be:
      1. on completion of the Services;
      2. the date specified on any invoice or other form as being the date for payment; or
      3. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Contractor.
    4. Payment may be made by cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Contractor.
    5. The Contractor may in its discretion allocate any payment received from the Client towards any invoice that the Contractor determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Contractor may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Contractor, payment will be deemed to be allocated in such manner as preserves the maximum value of the Contractor’s Purchase Money Security Interest (as defined in the PPSA) in the Services.
    6. The Client shall not be entitled to set off against, or deduct from the Fee, any sums owed or claimed to be owed to the Client by the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.
    7. Unless otherwise stated the Fee does not include GST. In addition to the Fee, the Client must pay to the Contractor an amount equal to any GST the Contractor must pay for any supply by the Contractor under this or any other Contract for providing the Contractor’s Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Fee. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Fee except where they are expressly included in the Fee.

 

  1. Variations and Additional Costs
    1. The Contractor reserves the right to change the Fee where there is any variation to the accepted plan of scheduled Services, or instructions/specifications, which will be charged for on the basis of the Contractor’s standard hourly rates (and double such rate for any Services provided outside the Contractor’s normal business hours) and will be shown as variations on the invoice. The Client shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor to add the cost of the variation to the Fee. Payment for all variations must be made in full at their time of completion. Variations include:
      1. where quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other Copy, any extra work or cost caused by any variation by the Client of the original instructions or by the Copy being, in the Contractor’s opinion, poorly prepared, or by the Client’s requirements being different from those originally submitted or described;
      2. work done both within and outside the Contractor, such as art and design work, production (print, audio, video, etc.) and research;
      3. experimental work, preliminary sketches and designs and origination costs produced at the Client’s request, which will be charged for, even if the job does not proceed further;
      4. any tabulated work and/or non-English language included in the job but not contained in the Copy originally submitted;
      5. any fonts, or colour proofs, or artwork, specially bought at the Client’s request for the Services;
      6. any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Client, and deemed necessary by the Contractor to ensure correctly finished work;
      7. where the performance of any Contract with the Client requires the Contractor to obtain products and/or services from advisors, sub-contractors, third parties and/or agencies:
        1. the Contract between the Contractor and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to the Contractor (including, but not limited to registering the Client’s business and/or set up SNT accounts where required), and the Client shall be liable for the cost in full (including, where applicable, the Contractor’s margin of such products and/or services). Such products and services include travel and accommodation charges, bulk courier, postage, international telephone incurred directly for the Client’s purposes;
        2. it is the Contractor’s responsibility to liaise and manage work with advisors, sub-contractors and agencies. The Client agrees to communicate their requirements of advisors, sub-contractors and agents exclusively through the Contractor in order to avoid confusion and potential for incurring additional costs and delays;
      8. any variation as a result of:
        1. fluctuations in currency exchange rates or increases to the Contractor in the cost of taxes, levies, materials and labour;
        2. limitations to accessing the SNT, internet disruptions or limited access; or
        3. any increase to the Contractor in the cost of third party services.

 

  1. Nominated Advisors
    1. The Contractor may (if they consider it appropriate to do so) recommend the engagement of third-party advisors, who shall be engaged by the Client at the Client’s own expense. The Contractor does not warrant the accuracy or quality of the advisor’s work, or warrant that the recommendations of the advisors are appropriate or adequate, or are fit for their purpose, or that they are not given negligently. The Client agrees that they shall not make any demand on the Contractor or commence any legal proceedings against the Contractor, and the Contractor shall have no liability, whether in negligence or otherwise, to the Client in relation to any services performed by the advisors.

 

  1. Provision of Services
    1. At the Contractor’s sole discretion delivery of the Services shall take place when the Services are supplied to the Client at the Client’s nominated address.
    2. Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this Contract.
    3. The Contractor may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
    4. Delivery costs where applicable including courier fees shall be in addition to the Fee.
    5. The Contractor may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
    6. Any time specified by the Contractor for delivery of the Services is an estimate only and the Contractor will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that the Contractor is unable to supply the Services as agreed solely due to any action or inaction of the Client then the Contractor shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
    7. The Client acknowledges and accepts that where the Contractor packages and supplies Website files for transfer or taking down a Website will incur a costs which shall be payable by the Client. Furthermore, any costs involved in restoring the Client’s Website shall be at the Client’s expense.
    8. Where the Client’s budget is allocated to the provision of different components of a campaign or project, some components may experience a fluctuation in performance or completion and the time required for the components to recover to a satisfactory level shall be billed as extra points for the time taken to reach this level.
    9. The Client acknowledges and accepts that at the Contractor’s discretion, some of the Services either partially or wholly may be outsourced.
    10. Subject to clauses 18.4 and 27.1, the Client shall supply access to any usernames and passwords required to remove posts, data, SNT communications and/or sites for failure to comply with these terms and conditions.

 

  1. Samples, Proof Reading and Appraisal
    1. The Contractor is under no obligation to provide samples other than by virtual (computerised) sample. Whilst every effort will be taken by the Contractor to match virtual colours with physical colours, PMS or other industry standard colours ,the Contractor will take no responsibility for any variation between virtual samples due to substrates, half tones and/or detailed graphics between electronic or physical samples/proofs and the finished Services Should a physical sample be required, this will be provided on request by the Client and will be charged for as an extra in accordance with clause 7.
    2. Whilst every care is taken by the Contractor to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading and/or revision of the proposed Services of any media communications prior to posting of the same to any SNT and/or revision of the proposed Services including Website design, which will be sent to the Client and will be deemed accepted if no response is received from the Client within seven (7) days of the Contractor’s submission thereof. The Contractor shall be under no liability whatever for any errors not corrected by the Client in the final proof reading/revision and should the Client’s alterations require additional proofs this shall be invoiced as an extra in accordance with clause 7.
    3. Any changes and comments as a result of proof reading/revision undertaken by the Client shall be provided to the Contractor in one (1) complete brief and not multiple emails. Any extended revisions outside of this scope shall be charged at the Contractor’s hourly rate.
    4. At the Contractor’s sole discretion, the number of permissible revisions shall be stipulated in the Contractor’s proposal or quotation with any revisions performed over and above the stated number allowable shall be charged at the Contractor’s current standard hourly rate or as extra points and shall be performed during the Contractor’s normal working hours. Furthermore, the Client must approve in writing any changes made by the Contractor at the Client’s request before the Services can proceed to the next stage of the project.

 

  1. Risk and Limitation of Liability for Client Data
    1. The Contractor shall be entitled to rely on any instructions, specifications or information supplied to the Contractor which is to be used for the provision of, or incorporated in, the Services. The Client shall indemnify, and keep indemnified, the Contractor at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against the Contractor, or incurred or become payable by the Contractor, resulting or arising from the Client being in breach of clause 17.1(a)
    2. The Client acknowledges and agrees that the Contractor shall not be held responsible or liable for:
      1. anything related to the Services provided (including SNT), and (irrespective of whether the Contractor retains ownership of any Incidental Items) all risk for Incidental Items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as the Contractor may repossess the Incidental Items as per clause 19.3(f). The Client must insure all Incidental Items on or before delivery;
      2. the Contractor reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Client’s failure to insure in accordance with clause 11.2(a); and
      3. any supplied Copy breaching any Acts, legislation or regulations, unless due to the negligence of the Contractor.
    3. Any recommendations made by the Contractor in terms of marketing plans, shall be appropriate for the Client’s business and to all intent and purposes, shall not contravene any legislation, including, but not limited to containing prohibited content, the Unsolicited Electronic Messages Act 2007 (Anti-SPAM), or the Broadcasting Act 1989. However, the Contractor shall not be held liable for any costs, loss or damages arising where the Client operates outside the Contractor’s recommended guidelines and subsequently is found to be in breach of any legislative requirements.
    4. The Services are provided on an “as is, as available” basis. The Contractor specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.
    5. The Client understands that by placing information online, such information may be accessible to all internet users. The Contractor does not (unless expressly requested by the Client) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity. The Client assumes full responsibility for their use of the Services, and it is the Client’s sole responsibility to evaluate the accuracy, completeness and usefulness or all opinions, advice, services, and other information, and the quality and merchantability of all Services provided by the Contractor, or on the internet generally.
    6. It shall be the Client’s sole responsibility to back-up any data which they believe to be important, valuable, or irreplaceable prior to submitting Copy, property and/or material for the provision of the Services. The Contractor shall not be held liable for any loss, corruption, or deletion of files, media or data resulting from the Services provided by the Contractor. The Client accepts full responsibility for the Client’s Copy, property and/or materials, and the Contractor is not required to advise or remind the Client of appropriate backup procedures.
    7. All media releases and public announcements by either party relating to these terms and conditions, or the Services (including subject matter and related documents), shall be co-ordinated with the other party and approved jointly by the parties prior to release.
    8. The Contractor shall not be held responsible for the use of Services as referred to in by media, once information approved by the Client has been submitted to the media.
    9. When reactive public relations is required, the Client agrees that the Contractor can act on the Client's behalf, if required, in line with the provision of Services under these terms and conditions, based on information previously supplied by the Client and the Contractor’s understanding of the Client's instructions.
    10. The Client understands that by placing information on the SNT, such information may be accessible to all internet users. The Contractor does not (unless expressly requested by the Client) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity. The Client assumes full responsibility for their use of the Services, and it is the Client’s sole responsibility to evaluate the accuracy, completeness and usefulness or all opinions, advice, services, and other information, and the quality and merchantability of all Services provided by the Contractor, or on the internet generally.
    11. Responses to any SNT communications shall be measured by the Contractor and may include all forms of responses (clicks, likes, comments, etc.) to and from the SNT account.

 

  1. Client Relationship Management Software
    1. Where the Contractor requires access to the Client’s database, the Client shall provide such access and accepts that third parties (such as nominated advisors or outsources) may be given access to certain information. The Contractor will mitigate such access by the use of code names for the business within the Contractor’s system and engage strict password controls procedures.
    2. The Client accepts that from time to time a version of Client Relationship Management Software (“CRM”) may be retired, become obsolete or is replaced by a new or updated version. As such, the Contractor will supply the best suited CRM at the time and shall not be liable for any changes made to the CRM by it supplier.
    3. The Contractor shall not be liable where:
      1. data loss or issues arise from the setup or integration of the CRM with the Client’s existing software by the Contractor or a third party;
      2. however, where the Contractor makes an unforeseen error in the setup, integration or optimisation of the Client’s CRM:
        1. the Client acknowledges that a period of ‘downtime’ may be incurred while the Contractor endeavours to fix the error; and
        2. the Contractor is not responsible for any loss incurred as a direct or indirect result of this downtime.
      3. updates or crashes to the CRM which are beyond the Contractor’s control;
      4. the Client’s private customer data gets leaked in the transfer process due to a hack or situation outside of the Contractor’s control.

 

  1. Design Concepts and Projects
    1. The Contractor shall provide initial concepts as stated in the proposal for the Client’s consideration. Additional concepts if requested by the Client could be charged accordingly by the Contractor.
    2. When style, type or layout is left to the Contractor’s judgement and then the Client makes further alterations to the copy this will be invoiced as an extra.
    3. The Client acknowledges that any artwork provided by the Contractor may not be to scale. In addition, whilst the Contractor will endeavour to provide an accurate representation of any artwork, the Client accepts that some discrepancy may occur between on-screen and/or photographic views and the physical artwork when viewed in an electronic form.

 

  1. Graphic, Video, Website Design and Development
    1. The Client acknowledges and accepts that whilst the Contractor shall conduct an online image search on all graphics created, the Contractor shall not be liable for any loss, damage or costs incurred by the Client unless the Client can provide evidence that the creation was an exact replica of an existing graphic or video.
    2. Whilst the Contractor shall take all due and diligence, the Contractor cannot guarantee that a graphic or video may not be leaked to the internet prior to going live due to factors outside or beyond of the Contractor’s control.
    3. Upon acceptance of the Contractor’s quotation, and in accordance with this agreement, the Contractor will:
      1. use its best endeavours to develop the Website in accordance with the Client’s instructions and specifications; and
      2. to the extent specified in the Client’s instructions and specifications, negotiate and procure any third-party agreements on behalf of the Client.
    4. The Client will, in addition to any other obligations expressed in this agreement, have the following responsibilities:
      1. provision of all data to be incorporated into the Website;
      2. provision of logos, designs, graphic and related materials to be incorporated into the Website; and
      3. provision of any other information, ideas or suggestions which are to be expressly considered by the Contractor in developing the Website.
    5. It shall be the Client’s responsibility to ensure that any specific requirements they may have for mobile web browsers is included in the brief, as, unless otherwise specified therein, the choice of web browsers and technology used in the development of the Website shall be at the sole discretion of the Contractor. In the event that additional Services are requested, or required (as per clause 14.7), in order to meet any specific requirements for mobile web browsers, after the Contractor has commenced work on the Website, shall be treated as a variation to the Fee, and a strict estimation of further work required shall be submitted to the Client for approval before proceeding with the variation work.
    6. The Contractor will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Website which is attributable to:
      1. incorrect information provided by the Client, either pursuant to this clause or otherwise; or
      2. failure by the Client to provide relevant information, either pursuant to this clause or otherwise; or
      3. any third-party products and/or services used by the Contractor in creation of the Website.
    7. The Client acknowledges that the development of the Website by the Contractor is based upon current technology platforms (e.g. internet browsers, mobile, android, social media platform, etc.), and therefore the Contractor cannot guarantee that Website features and /or content will display correctly, and that the overall visual experience will be the same, for use by either superseded or presently undeveloped technology.
    8. Upon the Contractor receiving payment in full, the Contractor shall provide the Client with the last backup of the Website and associated data and ensure the Website is ‘live’ and visible on the internet and/or social media platform.
    9. The Contractor shall advise the Client of all third party software, platforms and/or social media platform that the Client is recommended to have in place to assist the Client in setting up those accounts with the Client’s details and billing information.
    10. All software and components not developed by the Contractor retain the original licence and terms associated with that software.
    11. The Client will ensure that the Contractor is given such information and assistance (including access to computer systems, hosting account, disk space, create databases and applications, and other locations to complete a branding or other project) as the Contractor reasonably requires to enable the Contractor to construct the Website.
    12. When approval is sought or required from the Client following completion of a development stage, the Client will not delay the approval of that development stage beyond fourteen (14) days (time being of the essence) of being requested unless otherwise agreed to by the Contractor in writing. In the event of delays beyond this time frame, then the Contractor shall be entitled to charge a “holding fee” of an amount to be determined by the Contractor.
    13. The Contractor will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Website which is attributable to any third-party products and/or services used by the Contractor in creation of the Website and/or social medial platform.
    14. The Contractor makes no guarantees that the Website will not be subject to hacking, spamming, phishing or the like as security measures such as software, plugins, firewalls and ongoing security checks are the responsibility of the Client.
    15. Any ongoing Website maintenance services shall be the Client’s responsibility to engage a provider for such services and shall be at the Client’s expense.
    16. The Contractor shall by process of best practice, advise all Clients of their obligations in relation to Personal Information and data collection under the EU Data Privacy Laws and GDPR requirements and it shall be the Client’s responsibility to perform any ongoing compliance activity as may be required.

 

  1. Content and Google AdWords Marketing
    1. The Client acknowledges and accepts that whilst the Contractor shall conduct a plagiarism check of text, the Contractor shall not be liable for any loss, damage or costs incurred by the Client for use of such text.
    2. Where an error occurs in the Copy created by the Contractor’s writers, the Contractor shall correct the error on posts created at no extra cost to the Client, however this error shall not be deemed to be a breach in terms of this Contract.
    3. Where blog content provided by the Client has errors which require the post to be removed from the Website, the Client acknowledges that such removal may:
      1. affect other campaigns including, but not limited to paid traffic campaigns which were linked to that post; and
      2. cause down time whilst the Contractor remedies the system.
    4. The Client acknowledges that the Contractor incurs expenses and uses its expertise and intellectual property where marketing campaigns are created for the Client specifically via Google AdWords.
    5. Where the Client requests the Contractor to pause a marketing campaign set up and managed by the Contractor under the Google AdWords format, then the Client shall be responsible to continue payment of the Contractor’s monthly management fee.

 

  1. Search Engine Optimisation (SEO)
    1. Although the Contractor shall use their knowledge and experience to gain the best results possible, the Contractor gives no guarantee of the quality of visitor or the position/page rank or volume of visits to the Website, or warranty that the Website will be effective in promoting the Client’s business or result in any increase in sales of the products/services of the Client. Periodic reporting will be sent to the Client’s nominated email address, at the sole discretion of the Contractor.
    2. The Client accepts that a SEO may change their policies and systems at any time and such, the Contractor shall not be held liable for any fluctuations, changes or removal of your listing from a SEO.

 

  1. Client Supplied Copy or Materials
    1. Where the Client supplies Copy or materials to the Contractor for inclusion in the Services:
      1. the Client acknowledges that any Copy or materials supplied to the Contractor for incorporation into the Services is subject to the approval of the Contractor and may, regardless of prior approval, be rejected and removed by the Contractor; and
      2. such Copy or materials will be held by the Contractor at the Client’s risk; and
      3. adequate quantities shall be supplied to cover spoilage. Sheets and other materials shall not be counted or checked when received, unless requested by the Client in writing, and this shall be charged as an extra in accordance with clause 7.1; and
      4. the Contractor accepts no responsibility for imperfect work caused by defects in or unsuitability of such Copy or materials; and
      5. the Client warrants that all such Copy or materials supplied to the Contractor to be used for the provision of the Services shall:
        1. be true and correct in every particular; and
        2. does not contain Prohibited Content; and
        3. be non-political and non-religious by nature, and suitable for viewer of all ages; and
        4. not be, nor contain, anything that is defamatory of any person or is indecent or obscene; and
        5. complies with all laws, regulations, codes of practice, guidelines and any standards applicable to the advertising industry and as determined by any relevant regulatory agency or industry self-regulatory body (including, but not limited to, the Fair Trading Act 1986 and the Advertising Codes of Practice of the Advertising Standards Authority (ASA)); and
        6. does not infringe copyright, trademark or any other legal rights of another person and/or entity (including the name and image of any person without their consent, etc.); and
        7. does not contain anything which may give rise to any cause of action by a third against the Contractor (including, but not limited to, material that may cause damage or injury to any person and/or entity); and
        8. is not false or misleading and is true in substance and in fact; and
        9. not contain nor constitute a statement that is misleading or deceptive or likely to deceive or to mislead or which is otherwise in breach of a provision of the Fair Trading Act 1986, or any other applicable legislation;
        10. be in the form, and delivered up to the Contractor by the date, specified thereby. If the Client fails to adhere to this sub-clause, the Contractor shall not be liable to the Client in the event the Contractor is unable to provide the Services.
    2. The Client shall indemnify, and keep indemnified, the Contractor at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against the Contractor, or incurred or become payable by the Contractor, resulting or arising from the Client being in breach of clause 17.1
    3. Imprints or any legal obligations required to appear on any printed material are the responsibility of the Client. The Contractor reserves the right to place its imprint on all printed material unless specifically requested otherwise.
    4. In the case of Copy or materials left with the Contractor without specific instructions, the Contractor shall be free to dispose of them at the end of six (6) days after receiving them, and to accept and retain the proceeds, if any, to cover the Contractor’s own costs in holding and handling them.
    5. The Client:
      1. accepts that the Contractor shall only retain the Client’s files and materials for the purposes of providing the Services;
      2. shall provide the Contractor with data in the following formats:
        1. for text, files shall be in an electronic format as standard text (.txt) or Word (.doc) on a USB, CD-ROM or via email;
        2. graphic files should be supplied in an editable, vector digital format and photographs in a high resolution digital format. If the Client chooses to purchase stock photographs, the Contractor can suggest stock libraries;
        3. for images, in an electronic format as prescribed by the Contractor on a USB, CD-ROM or via email with the images of a suitable quality applicable for the use intended and without any subsequent image processing being required. The Contractor shall not be responsible for the quality of images scanned from printed materials;
        4. additional expenses may be charged to the Client for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing or data entry services.

 

  1. Client’s Acknowledgement and Responsibilities
    1. The Client acknowledges:
      1. and understands that they are leasing the Contractor’s dynamic solutions and systems with the right to license these solutions and systems indefinitely while all accounts are paid and the Contractor remains administrators of the Client’s Website. All content and material created by the Contractor remains the property the Contractor including, but not limited to:
        1. source code of all images and design; and
        2. systems and service processes unique to the Contractor; and
        3. dynamic web site code that forms part of the Contractor’s system which remains the intellectual property of the Contractor and cannot be purchased outright by the Client; and/or
        4. any social media platform.
      2. that payments to third parties for general advertising, social media advertising and lead generation costs shall be the Client’s responsibility. Any budgets for such costs shall be set with in consultation between the Contractor and the Client;
    2. The Client shall:
      1. be responsible for the payment of domain registration, hosting set-up and fees, advertising costs and any other third party costs for services that the Contractor manages on the Client’s behalf; and
      2. all licenses and/or approvals pertaining to materials to be used in the communication copy and where required, any release documentation for the use of any digital imagery which may include people.
    3. The Client will, in addition to any other obligations expressed in this agreement, have the following responsibilities:
      1. provision of all Copy (including data, logos, designs and/or graphic and related materials) to be incorporated into the SNT communications and/or Website within five (5) business days of being requested by the Contractor It shall be the Client’s responsibility to provide any information or feedback required by the Contractor in a timely manner as where the Client fails to comply with this clause, the Contractor shall not be held liable for any delays, loss, costs or damages that may arise as a result to such delays;
      2. provision of any other information, ideas or suggestions which are to be expressly considered by the Contractor in developing the SNT communications; and
      3. to ensure that Copy supplied to the Contractor do not contain Prohibited Content, a link to any web site that contains Prohibited Content, or any viruses, trojan horses, worms, time bombs, cancel bots or any other software program or routine designed for or capable of interfering with the operation of the SNT.
    4. The Client will ensure that the Contractor is given such information and assistance as the Contractor reasonably requires enabling the Contractor to prepare and post any communication to the SNT.
    5. The Contractor will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the SNT communications which is attributable to:
      1. incorrect information provided by the Client, either pursuant to this clause or otherwise; or
      2. failure by the Client to provide relevant information, either pursuant to this clause or otherwise; or
      3. any third-party products and/or services used by the Contractor in placing the SNT communication.
    6. The Client and the Contractor shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities in the country where the Services are being provided or as per guidelines on any SNT. Furthermore, the Contractor warrants that any Services and/or content produced are fully compliant with said statues, regulations and bylaws and SNT requirements.

 

  1. Title
    1. The Contractor and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until:
      1. the Client has paid the Contractor all amounts owing for the Services; and
      2. the Client has met all other obligations due by the Client to the Contractor in respect of all contracts between the Contractor and the Client.
    2. Receipt by the Contractor of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Contractor’s ownership or rights in respect of the Incidental Items shall continue.
    3. It is further agreed that, until ownership of the Incidental Items passes to the Client in accordance with clause 19.1:
      1. the Client is only a bailee of the Incidental Items and must return the Incidental Items to the Contractor immediately upon request by the Contractor;
      2. the Client holds the benefit of the Client’s insurance of the Incidental Items on trust for the Contractor and must pay to the Contractor the proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed;
      3. the Client must not sell, dispose, or otherwise part with possession of the Incidental Items. If the Client sells, disposes or parts with possession of the Incidental Items then the Client must hold the proceeds of sale of the Incidental Items on trust for the Contractor and must pay or deliver the proceeds to the Contractor on demand;
      4. the Client should not convert or process the Incidental Items or intermix them with other goods, but if the Client does so then the Client holds the resulting product on trust for the benefit of the Contractor and must dispose of or return the resulting product to the Contractor as the Contractor so directs;
      5. the Client shall not charge or grant an encumbrance over the Incidental Items nor grant nor otherwise give away any interest in the Incidental Items while they remain the property of the Contractor;
      6. the Client irrevocably authorises the Contractor to enter any premises where the Contractor believes the Incidental Items are kept and recover possession of the Incidental Items.

 

  1. Personal Property Securities Act 1999 (“PPSA”)
    1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
      1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
      2. a security interest is taken in all Incidental Items and/or collateral (account) – being a monetary obligation of the Client to the Contractor for Services – that have previously been supplied and that will be supplied in the future by the Contractor to the Client.
    2. The Client undertakes to:
      1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Contractor may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
      2. indemnify, and upon demand reimburse, the Contractor for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Incidental Items charged thereby;
      3. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items and/or collateral (account) in favour of a third party without the prior written consent of the Contractor.
    3. The Contractor and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
    4. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
    5. Unless otherwise agreed to in writing by the Contractor, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
    6. The Client shall unconditionally ratify any actions taken by the Contractor under clauses 20.1 to 20.5.

 

  1. Security and Charge
    1. In consideration of the Contractor agreeing to supply Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    2. The Client indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause.
    3. The Client irrevocably appoints the Contractor and each director of the Contractor as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 21 including, but not limited to, signing any document on the Client’s behalf.

 

  1. Defective Services
    1. The Client shall inspect the Services on delivery and immediately notify the Contractor of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford the Contractor an opportunity to inspect the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
    2. For defective Services, which the Contractor has agreed in writing that the Client is entitled to reject, the Contractor’s liability is limited to either (at the Contractor’s discretion) replacing the Services or rectifying the Services provided that the Client has complied with the provisions of clause 22.1.

 

  1. Use of Reports and Advice
    1. Any advice that the Contractor gives to the Client, its employees or agents is for the Client’s exclusive use and must be used only for the purpose described in the proposal.
    2. Unless the Contractor gives the Client prior written consent, the advice:
      1. must not be used or disclosed for any other purpose, referred to in any document or made available to any other person, except the Client’s lawyers or other professional advisor assisting in the Services; and
      2. may not be relied upon by any other party other than the Client.
    3. The Contractor is not responsible to any other party other than the Client, who is provided with or obtains a copy of the Contractor’s advice.
    4. The Contractor’s advice may, on occasion, be given to the Client in draft form or orally only on the basis that the Client may not rely on advice in that form. Accordingly, the Contractor shall not be responsible if the Client or any other party relies on the advice or chooses to act, or refrains from acting, on the basis of any draft advice or oral comments or advice.
    5. The Client acknowledges that the signed copy of the Contractor’s final advice is the definitive version.

 

  1. Intellectual Property and Confidentiality
    1. For the sake of clarity “Intellectual Property Rights” or “IPR” means patents, utility models, copyrights, industrial design rights, trade mark rights and rights on other commercial signs, statutory trade secret protection and any similar intellectual property rights, including applications for the same and as such anything that is deemed to be “IPR” furnished the Contractor remain the exclusive property of the Contractor, and shall not be used for any purpose other than that nominated by the Contractor, unless otherwise agreed upon in writing.
    2. Notwithstanding clause 24.1, where the Contractor has designed, drawn or developed Incidental Items for the Client, including sketches and dummies submitted by the Contractor on a speculative basis, native/working files, all photography and video audio filmed and/or created by and for the Contractor, any designs not approved by the Client, then the copyright in the IPR shall remain the property of the Contractor, and:
      1. ownership of the intellectual property of the final form/files being transferable and is conditional upon the Client fulfilling their obligations under this agreement (including, but not limited to, the full payment of the Fee inclusive of and any charges pertaining to IPR ownership where applicable);
      2. shall only be used by the Client at the Contractor’s discretion and in accordance with clause 24.8; and
      3. that the Client may, at the Contractor’s sole discretion offer the Client the right to purchase a licence to use any non-approved designs; and
      4. the Client undertakes to acknowledge the Contractor’s IPR in the event that images of the Incidental Items are utilised in advertising or marketing material by the Client; and
      5. the Client agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any IPR of the Contractor and/or any Services provided to the Client, including, but not limited to:
        1. the Client permitting the Contractor to place a small credit on printed material, exhibition displays, advertisement and/or link to the Contractor’s own web site on the Client’s Website, which shall usually be in the form of a small logo or line of text placed towards the bottom of the page;
        2. allowing the Contractor to place web sites and other designs, along with a link to the Client’s Website on the Contractor’s own web site for demonstration purposes and to use any designs in the Contractor’s own publicity.
    3. All design work where there is a risk that another party may make a claim, should be registered by the Client with the appropriate authorities prior to publishing or first use or searches and legal advice sought as to its use. The Contractor shall not be held responsible for any or all damages resulting from such claims.
    4. The Client shall indemnify the Contractor against any claims by third parties for and content or information supplied including, but not limited to, patent, trademark, design or copyright infringement, directly or indirectly arising out of the brief, Client’s instructions, design, workmanship, material, construction, or use of the Services or any other deficiency therein. Where the Client provides Copy or information to the Contractor, the Client warrants that:
      1.  the Client has ownership or absolute rights to use any intellectual property and/or proprietary interest in such materials; and
      2. such Copy does not breach any patent, trademark, design or copyright, and the Client agrees to indemnify the Contractor against any action taken by a third party against the Contractor.
    5. Subject to the Copyright Act 1994 and the conditions therein, the Client agrees that they shall not in any way sell, reproduce, adapt, distribute, transmit, publish, or create derivative works from, any Incidental Items without the Contractor’s prior consent in writing (including, but not limited to, underlying code elements, or any part of the Website design or layout).
    6. Notwithstanding anything herein, the IPR in the Contractor’s Services do not vest in the Client and there is no assignment of these IPR to the Client. The Contractor hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use and reproduce the Services for the purposes of this agreement only, and solely for the operation of the Client’s business however, the Client shall not use nor make copies of such Intellectual Property in connection with any work or business other than the work or business specified in writing to the Contractor unless express approval is given in advance by the Contractor. Such license shall terminate on default of payment or any other terms of this agreement by the Client.
    7. All Flash, PHP, Javascript, HTML and Dynamic HTML coding and other supplied code (if any) remains the intellectual property of the Contractor. Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright.
    8. The Contractor does not accept commissions to provide Services based on copyright works; this overrides Section 21(3) of the Copyright Act 1994 in accordance with Section 21(4) of that Act. The Client shall be entitled, on payment of all monies due to the Contractor, to an irrevocable, non-exclusive and non-transferable license to use the Contractor’s IPR for the specific purpose, and such IPR shall not be used for any purpose other than that nominated by the Contractor and no ideas obtained therefrom may be used without the consent of the Contractor. Unless the right to reproduce or to create derivative work is otherwise set out in writing, the right of the Client shall be limited to the use of the licensed works to create one (1) derivative work only, and to make such copies of the Contractor’s IPR as are necessary for completion of that derivative work, and any statutory compliance associated with it. The Contractor shall be entitled to compensation from the Client for any unauthorised use of the Contractor’s IPR.
    9. Information, specifications or information (including, but not limited to, disks, artwork and film) supplied by the Client, and/or other authorised persons, remain the property of the Client. Unless otherwise indicated in writing, the Contractor shall assume such information, specifications or information to be duplicate copies of the original.
    10. Where the Contractor has provided photographic (digital or otherwise) images for the Client, at the Contractor’s sole discretion, any such images may be subject to ongoing licence payments for use of such images. The period of any such licence is determined by the Contractor from time to time.
    11. Where the Client wishes to trademark any logo designed by the Contractor, then all associated costs and applications for trademarks shall be the Client’s responsibility.
    12. Each party agrees to treat all information and ideas communicated to it by the other confidentially (and where applicable, any communications between either party and third parties that are engaged by the Client or the Contractor as part of the performance of the Services) and agree not to divulge it to any other third party, without the other party's written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
    13. To avoid doubt, the obligations in this clause 24 will continue to apply after the completion of the Services, and regardless of any dispute.

 

  1. Licence to Use
    1. The Contractor grants to the Client a licence to use the Software (which is used in conjunction with the Products). The Contractor herein grants the Client, a personal, non-exclusive, non-transferable, limited licence to use the Software on the terms of this licence. For the Client entering into a Serviced Software Licence Agreement, this licence shall only be for the period determined in accordance with the Contract.  The Contractor reserves all rights not expressly granted to the Client. 
    2. The Client is entitled to use the Software as described on the invoices, quotation, work authorisation or any other forms as provided by the Contractor to the Client, and must purchase a separate copy of any Software for each terminal on which the Client intends to use the Software.
    3. The Client must not:
      1. use or rely on the Software for any purpose or in any manner for which the Software are not purported to be designed or suitable for;
      2. copy, reproduce, translate, adapt, vary merge or modify or create any derivative work based on the Software;
      3. reverse engineer, decompile, disassemble, reconfigure or otherwise attempt to discover the source code of the Software, or assist another party to do the same;  and
      4. sell, market, network, transfer, lease, licence, sub-licence, rent, lend or otherwise dispose of or distribute the Software in any way whatsoever.

 

  1. Default and Consequences of Default
    1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s collection agency costs, and bank dishonour fees).
    3. Further to any other rights or remedies the Contractor may have under this Contract, if a Client has made payment to the Contractor, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Contractor under this clause 25, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
    4. Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if:
      1. any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to make a payment when it falls due;
      2. the Client has exceeded any applicable credit limit provided by the Contractor;
      3. the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

 

  1. Cancellation
    1. Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may shut down the Client’s Website if it has gone live, suspend or terminate the supply of Services to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.
    2. The Contractor may cancel any Contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any money paid by the Client for the Services. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
    3. In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).

 

  1. Suspension and Termination
    1. In the event the Client is in material breach of this Contract (including by non-payment of the Price when due) the Contractor has the right to suspend performance of any or all of their obligations under this Contract if the Client fails to comply with the Contractor’s written notice requiring the remedy of such breach by the date specified therein.
    2. Either party may terminate the Services on written notice where:
      1. the other party has materially breached this Contract as it relates to the Services and, if that breach is capable of remedy, has failed to remedy the breach within twenty (20) business days of receipt of written notice from the non-defaulting party requiring the breach to be remedied; or
      2. the other party suffers an insolvency event, where an administrator, liquidator, receiver, manager and receiver or any other administrator is appointed over the assets of the business of the entity, or if the entity enters into any composition with its creditors.
    3. The Contractor may terminate any Contract to which these terms and conditions apply, or cancel provision of Services at any time by giving written notice to the Client:
      1. either in whole or in part, if the Client materially breach this Contract and, if that breach is capable of remedy, the Client has failed to remedy such breach within twenty (20) business days of receipt of written notice requiring the breach to be remedied; or
      2. if the Contractor is required to do so by law; and
      3. on giving such notice the Contractor shall repay to the Client any money paid thereby for the Services, less any amount owing to the Contractor by the Client for Services already provided. The Contractor shall not be liable for any loss or damage whatsoever arising from such termination.
    4. In the event that the Client terminates this Contract (excluding where terminated as per clause 28.2), the Client must provide the Contractor with thirty (30) days prior written notification. The Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the termination (including, but not limited to, any loss of profits) and the Client shall be liable for the payment of a cancellation fee in the event the Client cancels all or part of the Services, or this Contract, without providing the Contractor with proper notification (as specified herein).

 

  1. Privacy Policy
    1. All emails, documents, images or other recorded information held or used by the Contractor is Personal Information as defined and referred to in clause 29.3 and therefore considered confidential. The Contractor acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where a Client is from an European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”), which sets out principles for the collection, holding, use and disclosure of Personal Information. The Contractor acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by the Contractor that may result in serious harm to the Client, the Contractor will notify the Client in accordance with the Act and/or the GDPR. Any release of such personal information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
    2. Notwithstanding clause 29.1, privacy limitations will extend to the Contractor in respect of Cookies where transactions for purchases/orders transpire directly from the Contractor’s website. The Contractor agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
      1. IP address, browser, email client type and other similar details;
      2. tracking website usage and traffic; and
      3. reports are available to the Contractor when the Contractor sends an email to the Client, so the Contractor may collect and review that information (“collectively Personal Information”)

In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via the Contractor’s website.

    1. The Client authorises the Contractor or the Contractor’s agent to:
      1. access, collect, retain and use any information about the Client;
        1. (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
        2. for the purpose of marketing products and services to the Client.
      2. disclose information about the Client, whether collected by the Contractor from the Client directly or obtained by the Contractor from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
    2. Where the Client is an individual the authorities under clause 29.1 are authorities or consents for the purposes of the Privacy Act 1993.
    3. The Client shall have the right to request the Contractor for a copy of the information about the Client retained by the Contractor and the right to request the Contractor to correct any incorrect information about the Client held by the Contractor.

 

  1. Service of Notices
    1. Any written notice given under this Contract shall be deemed to have been given and received:
      1. by handing the notice to the other party, in person;
      2. by leaving it at the address of the other party as stated in this Contract;
      3. by sending it by registered post to the address of the other party as stated in this Contract;
      4. if sent by email to the other party’s last known email address.
    2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

 

  1. Trusts
    1. If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Contractor may have notice of the Trust, the Client covenants with the Contractor as follows:
      1. the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
      2. the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
      3. the Client will not without consent in writing of the Contractor (the Contractor will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
        1. the removal, replacement or retirement of the Client as trustee of the Trust;
        2. any alteration to or variation of the terms of the Trust;
        3. any advancement or distribution of capital of the Trust; or
        4. any resettlement of the trust property.

 

  1. Limitation of Liability and Indemnity
    1. The Client acknowledges that, due to the nature of digital display, technical difficulties may arise which could prevent the provision of the Services; and the Client, therefore, agrees to indemnify the Contractor against any costs or losses incurred by the Client as a result of this.
    2. The Contractor shall be under no liability whatsoever to the Client for any indirect, incidental, special and/or consequential loss and/or expense, claim and/or cost (including legal fees and commissions, loss of profit, business, contracts, opportunity, goodwill, reputation and/or anticipated saving) and/or for any loss suffered by the Client arising out of a breach by the Contractor of these terms and conditions, including, but not limited:
      1. to the production of Incidental Items and/or publication of the Services;
      2. cancellation of, or failure to produce the Incidental Items and/or publish any Services;
      3. closure of social media accounts;
      4. failure by the Client to comply with their obligations under this Contract (including failure by the Client to adhere to any third party supplier’s terms such as social media platforms conditions of use, or that arise from any claim relating to the Services by any person that the Client authorises to use the Services; and
      5. alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Fee for the Services.

 

  1. General
    1. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    2. These terms and conditions and any Contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
    3. The Contractor may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
    4. The Client cannot licence or assign without the written approval of the Contractor.
    5. The Contractor may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of the Contractor.
    6. The Client agrees that the Contractor may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Contractor to provide Services to the Client.
    7. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
    8. If the Client is acquiring Services for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the provision of Services by the Contractor to the Client.
    9. Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.