1. Definitions
1.1 “Provider” means the About Image Ltd, its successors and assigns or any person acting on behalf of and with the authority of the About Image Ltd.
1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting the Provider to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Client’s executors, administrators, successors and permitted assigns.
1.3 “Services” means all Goods (which includes any files, information, printed or virtual material, data or software, models) or Services (which includes any advice or recommendations, technical service and support and training, etc.) supplied by the Provider to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “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.
1.5 “Prohibited Content” means any content on any advertising media that:
(a) is, or could reasonably be considered to be, in breach of the Broadcasting Act 1989; the Fair Trading Act 1986; or any other applicable law or applicable industry code; or
(b) 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
(c) is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights (including, but not limited to, the distribution of music files or any other material in which the Client does not own the copyright).
1.6 “Price” shall mean the cost of the Services (plus any Goods and Services Tax (“GST”) where applicable) as agreed between the Provider and the Client subject to clause 4 of this contract.
2. Acceptance
2.1 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 Provider.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and the Provider.
2.3 None of the Provider’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Provider in writing nor is the Provider bound by any such unauthorised statements.
2.4 Once accepted by the Client, the Provider’s quotation shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, the Provider shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
2.5 Any advice, recommendations, information, assistance or service provided by the Provider in relation to Services provided is given in good faith, is based on information provided to the Provider, and the Provider’s own knowledge, and experience. Whilst 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, human error is possible under these circumstances, and the Provider shall make all effort to offer the best solution to the Client.
2.6 The Client accepts that if a choice of design is presented, only one solution is deemed to be given by the Provider as fulfilling the contract. All other designs shall remain the property of the Provider, unless otherwise agreed in writing.
2.7 This contract constitutes the entire contract between the Provider and the Client, and the Client hereby acknowledges that no reliance is placed on any representation made by the Provider, but not embodied in this contract.
2.8 The Client accepts and acknowledges that in the event the Provider acts as an agent on behalf of the Client with a third party, the Client agrees to honour their obligation for payment for such transactions invoiced by the Provider and shall ensure payment is made by the due date, thereby not limiting the Provider in their obligations for payment as agents acting on behalf of the Client to third parties. It shall be the Client’s responsibility to provide the Provider with the scope of such agency.
2.9 The Client acknowledges and accepts that at certain stages during Services that the Provider shall require written approval to proceed to the next stage. Typically this will be approving the site maps or wireframes, approving the graphic design and then approving the Website for launch.
2.10 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.
2.11 Lead times may apply for re-orders pf promotional materials due to the Provider’s work schedules.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that the Provider shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the Provider in the formation and/or administration of this contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Provider in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Provider; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Client shall give the Provider 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 or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by the Provider as a result of the Client’s failure to comply with this clause.
5. Authorised Representatives
5.1 The Client acknowledges that the Provider shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to the Provider, that person shall have the full authority of the Client to order any Goods, Services and/or to request any variation thereto on the Client’s behalf . The Client accepts that they will be solely liable to the Provider for all additional costs incurred by the Provider (including the Provider’s profit margin) in providing any Goods, Services or variation/s requested thereto by the Client’s duly authorised representative.
6. Price and Payment
6.1 The Client accepts that any proposal, estimate or quotation is based solely on the information that has been provided to the Provider. The Provider shall be entitled to rely on the accuracy of that information.
6.2 At the Provider’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by the Provider to the Client; or
(b) the Provider’s current price at the date of provision of the Services as indicated on the Provider’s pricelist; or
(c) the Provider’s estimated Price (subject to clause 6.5) which may include an allotted time frame. The final price can only be ascertained upon completion of the Services. Variances in the estimated Price of more than ten percent (10%) will be subject to Client approval before proceeding with the Services; or
(d) the Provider’s quoted price (subject to clause 6.5) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. If to prepare a quotation involves multiple consultations and/or third party involvement, then all costs for such consultations and third party costs involved (including time spent charged at the Provider’s current hourly rate) may be charged to the Client irrespective of whether or not the Services go ahead.
6.3 The Client acknowledges and accepts that where the scope of the Services expands beyond the reasonable bounds of the initial brief, then the Provider reserves the right to re-quote for the Services.
6.4 A copy of the written estimate or quotation is to be signed and dated by the Client to indicate acceptance and should be returned to the Provider. As an alternative, the Client may send an official order for the Services via email in reply to the estimate or quotation which will imply the Client’s acceptance of the Provider’s terms and conditions. The Client accepts that no work will be commenced until acceptance has been supplied to the Provider as per this clause.
6.5 Additional and/or Varied Services:
(a) Subject to clause 6.2(d) the Provider agrees that there will be no charge in the preparation of the initial which may include Client discussions, project scoping, research, testing and business analysis, etc. However, in some instances the aforementioned services may be charged to the Client additionally (at the Provider’s sole discretion). In the event the Client requires proofs, mock-ups, layouts, samples or dummies or printed, typewritten or other good copy and/or edits, this shall be invoiced at the Provider’s hourly rate unless specified otherwise in the initial quotation, therefore, this variation shall be detailed on the invoice as per sub-clause (f).
(b) All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.
(c) Any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice.
(d) Unless otherwise agreed, the Client shall bear the cost of fonts, colour proofs, templates, software or artwork, specially bought at the Client’s request for the job.
(e) Where the performance of any contract with the Client requires the Provider to obtain products and/or services from a third party, the contract between the Provider and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to the Provider, and the Client shall be liable for the cost in full including the Provider’s margin of such products and/or services.
(f) The Provider reserves the right to amend the Price 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 Provider’s standard hourly rates (and double such rate for any Services provided outside the Provider’s normal business hours) and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
(g) The Client acknowledges that all services and support for email are chargeable in addition to the Price .
(h) The Provider shall not be held responsible for any amendments made by any third party before or after a design is published.
(i) Any variation due to a result of any increase to the Provider in the cost of materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) and labour) will be charged for on the basis of the Provider’s quotation and will be shown as variations on the invoice.
6.6 At the Provider’s sole discretion a non-refundable deposit may be required.
6.7 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by the Provider, which may be:
(a) on completion of the Services;
(b) monthly as per the payment schedule of fixed term contracts or where otherwise agreed to by both parties;
(c) by way of instalments/progress payments in accordance with the Provider’s payment schedule which may consist of:
(i) a deposit as per clause 6.6; and
(ii) the balance on the sign-off of the final stage of the project of which once receipted, the site shall go live.
(d) For certain approved Clients, the date which is twenty (20) days following the end of the month following the date of any invoice given to the Client by the Provider the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days from the date of any invoice given to the Client by the Provider.
6.8 Publication and/or release of the work done by the Provider shall only be released once the funds have been cleared or honoured.
6.9 Payment may be made by cash, cheque, bank 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 Provider. Furthermore, the Client acknowledges and accepts that the Provider shall not accept payment in the form of BarterCard, or Bitcoin or similar type of cryptocurrency.
6.10 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Provider nor to withhold payment of any invoice because part of that invoice is in dispute.
6.11 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Provider an amount equal to any GST the Provider must pay for any provision of Services by the Provider under this or any other contract. 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 Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Delivery of Goods
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at the Provider’s address; or
(b) the Provider (or the Provider’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
7.2 Delivery of a Website shall be when it becomes live on the internet.
7.3 At the Provider’s sole discretion the cost of delivery (transport costs, postage and packaging costs) are in addition to the Price.
7.4 Any time specified by the Provider for delivery of the Goods is an estimate only. The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. The Provider will not be liable for any loss or damage incurred by the Client as a result of delivery being late. In the event that the Client is unable to take delivery of the Goods as arranged then the Provider shall be entitled to charge a reasonable fee for redelivery and/or storage.
8. Provision of the Services
8.1 Any time specified by the Provider for provision of the Services is an estimate only and the Provider will not be liable for any loss or damage incurred by the Client as a result of provision being late. However, both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that the Provider is unable to provide the Services as agreed solely due to any action or inaction of the Client, then the Provider shall be entitled to:
(a) charge the Client additionally for re-providing the Services at a later time and date; or
(b) subject to clause 24.4, terminate the contract.
8.2 Where any upgrade of software/hardware is recommended by the Provider is not performed/acquired and/or integrated then the Provider shall not be held responsible for any failure in the performance of the Website and/or Hosting Services.
8.3 The Client accepts that where any remote emergency maintenance of the Client’s Website is required, then such maintenance shall be charge at an hourly rate and any out of hours’ fee may also be applicable.
8.4 Should the Provider be required to make a physical site visit, the Client shall provide (where applicable) additional personnel to be in attendance for the duration of the site visit.
8.5 The Provider shall not be held liable for any loss, costs or damages where software from a third party supplier is delayed.
8.6 In the case of property and materials left with the Provider without specific instructions, the Provider shall be free to dispose of them at the end of twelve (12) months after their receiving them and to accept and retain the proceeds, if any, to cover their own costs in holding and handling them.
8.7 Where the Services to be provided include the provision of computer storage space, the Provider reserves the right to impose limits on the storage space and bandwidth provided. Such limits may be referenced to the physical amount of space made available, the number of e-mail messages held, the size of any attachments sent or any other method that the Provider may specify.
8.8 Proof Reading:
(a) Whilst every care is taken by the Provider to carry out the instructions of the Client, it is the Client’s responsibility to undertake proof reading and provide feedback (where necessary) which provides regular, possibly daily contact. The Provider shall be under no liability whatever for any errors not corrected by the Client during the proof reading stages, and:
(i) should the Client’s alterations require additional proofs this shall be invoiced as an extra;
(ii) if, at any stage the Client is unhappy with the direction the Services are taking, the Client can cancel this contract and pay the Provider for work completed up to that date of cancellation.
(b) When style, type or layout is left to the Provider’s judgement and the Client makes further alterations, this will be invoiced as an extra.
(c) The Provider will make one (1) set of minor changes at no extra cost within fourteen (14) days of the review period. Minor changes include small text changes and small adjustments to placement of items on the artwork. It does not include changes to images, colour schemes, or any navigation features. Any minor changes need to be notified to the Provider via email.
(d) Should the Client fail to notify the Provider in writing of any amendments within fourteen (14) days from the commencement of the review period, the Provider shall deem that the original draft as being acceptable.
9. Design Services for Branding and/or Printing
9.1 The Provider shall be under no liability whatsoever to the Client for any variation (beyond the reasonable control of the Provider) in colours between the approved prototype and the finished goods.
9.2 When quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good copy, any extra work or cost caused by any variation by the Client of his original instructions or by the manuscript copy being, in the Provider’s opinion, poorly prepared or by the Client’s requirements being different from those originally submitted or described, then the cost of such variations may be charged to the Client and shown as extras on the invoice.
9.3 Where the performance of any contract with the Client requires the Provider to obtain goods or services from a third party, the contract between the Provider and the Client shall incorporate and shall be subject to the conditions of supply of such goods and services to the Provider, and the Client shall be liable for the cost in full including the Provider’s margin of such goods or services.
9.4 Whilst every care is taken by the Provider to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading of the Goods. The Provider shall be under no liability whatever for any errors not corrected by the Client in the final proof reading. Should the Client’s alterations require additional proofs this shall be invoiced as an extra.
9.5 The Provider is under no obligation to provide samples of Goods ordered other than by virtual (computerised) sample. Whilst every effort will be taken by the Provider to match virtual colours with physical colours, the Provider will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client’s computer and/or the final product. Should a physical sample be required this will be provided on request by the Client and will be charged for as an extra including return freight, the charge will be contra against final invoice.
9.6 While every effort will be taken by the Provider to match Pantone Matching System (PMS) or other industry system colours, the Provider will take no responsibility for any variation due to substrates, half tones and/or detailed graphics between sale samples (including but not limited to virtual or physical samples) and the final product.
9.7 Any change or correction to any film, bromides, artwork and/or printing surface supplied by the Client which is deemed necessary by the Provider to ensure correctly finished work shall be invoiced as an extra.
10. Design Concepts and Projects
10.1 The Provider shall provide a maximum of three (3) designs will be offered as initial concepts for branding a business for the Client’s consideration. Additional designs can be offered by the Provider which would be at an extra cost to the Client.
10.2 Any indication provided by the Provider as to the duration of the project shall be considered as an estimate and shall commence from the date that cleared deposit funds are received by the Provider.
10.3 The Provider shall not be responsible for any project over-runs regardless of the cause.
10.4 The Provider considers that the design project is completed upon receipt of the Client’s signed estimate or quotation form. Any associated services such as printing, display panel production, film work, Website design and development, publishing, etc. to be provided by the Provider or contracted on the Client’s behalf shall constitute a separate project and can be treated as a separate charge.
11. Website Development
11.1 The Provider’s Responsibilities:
(a) Upon acceptance of the Provider’s quotation, and in accordance with this contract, the Provider will:
(i) use its best endeavours to develop the Website in accordance with the Client’s instructions and specifications; and
(ii) to the extent specified in the Client’s instructions and specifications, negotiate and procure any third-party agreements on behalf of the Client.
(b) The Client acknowledges that the development of the Website by the Provider is based upon current technology platforms (e.g. internet browsers, mobile, android, etc.), and therefore the Provider 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.
11.2 Client’s Responsibilities:
(a) The Client will, in addition to any other obligations expressed in this contract, have the following responsibilities:
(i) provision of all content (including data, logos, designs and/or graphic and related materials) to be incorporated into the Website;
(ii) provision of any other information, ideas or suggestions which are to be expressly considered by the Provider in developing the Website.
(b) The Client will ensure that the Provider is given such information and assistance (including access to computer systems and other locations to complete a branding project) as the Provider reasonably requires to enable the Provider to construct and maintain the Website.
(c) Subject to clause 23.3, the Client shall supply access to any computer system, usernames and passwords required to remove data and/or sites for failure to comply with these terms and conditions.
(d) 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 Provider. In the event that additional Services are requested, or required (as per clause 11.1(b)), in order to meet any specific requirements for mobile web browsers, after the Provider has commenced work on the Website, shall be treated as a variation to the Charges, and a strict estimation of further work required shall be submitted to the Client for approval before proceeding with the variation work.
(e) The Provider will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Website which is attributable to:
(i) incorrect information provided by the Client, either pursuant to this clause or otherwise; or
(ii) failure by the Client to provide relevant information, either pursuant to this clause or otherwise; or
(iii) any third-party products and/or services used by the Provider in creation of the Website.
(f) The Client acknowledges and accepts that where the Provider spends an unreasonable time converting material supplied by the Client into a usable format, then the Provider shall reserve the right to charge additionally for this at the Provider’s standard hourly rate and which shall be shown as a variation on the invoice. If however, the Provider is unable to convert such material, then a third party shall be engaged to facilitate the conversion to a usable format and shall be at the Client’s expense as per clause 6.5(e).
11.3 Client’s Property and Materials:
(a) 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 Provider will purchase these on the Client’s behalf and shall invoice accordingly.
(b) Where materials or equipment are supplied by the Client, the Provider accepts no responsibility for imperfect work caused by defects in or unsuitability of such materials or equipment.
11.4 Maintenance:
(a) Minor changes or problem solving on any software including web stores, catalogue systems, content management systems, and bespoke web applications are supported free of charge for a period of five (5) business days from Website launch. For any major changes during this time or any changes made after this period will incur maintenance charges at the Provider’s standard hourly rate.
(b) Whilst the Provider is generally available for telephone support during regular office hours, any support required outside office hours, long telephone calls, or any onsite visits for support or training may be charged at the Provider’s standard hourly rate. The Client shall be advised if such costs will apply at the time of occurrence.
(c) Subject to sub-clause (d), the Provider will provide the Maintenance Services in accordance with the maintenance terms set out in the Provider’s maintenance schedule (where applicable).
(d) The Client will procure all necessary authorisations, licences and consents to enable the Provider to have access to the Website in order to provide the Maintenance Services.
12. Hosting Services
12.1 “Live Date” means the date in which the Provider provides the Hosting Services as per initial acceptance of the Provider’s quotation.
12.2 Hosting services shall only be used by the Client for lawful purposes. Any use which violates any applicable national or international laws is strictly prohibited (e.g. posting or transmitting any unlawful, threatening, abusive, libellous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind – including, but not limited to, any transmission constituting or encouraging conduct that would constitute a criminal offense or give rise to civil liability).
12.3 Hosting services exclude domain registrations and Secure Sockets Layer (SSL) Certificates, and where the Client is changing from another hosting provider the install and set-up of the Website on the Provider’s webservers, which shall be charged to the Client additionally.
12.4 The Provider will, at its sole cost and expense:
(a) host the Web Site on the Provider’s or other third party webservers;
(b) ensure that from the Live Date:
(i) sufficient capacity is maintained on the Provider’s webserver to enable users access to the Website in a timely manner;
(ii) the Website is accessible to users in accordance with the agreed service levels (subject to reasonable downtime for server maintenance which has been notified to the Client prior to the commencement of the downtime or (where applicable) Maintenance in accordance with clause 12.9);
(c) provide the Client with reasonable access to the Website to perform maintenance services.
12.5 The Provider will not:
(a) alter or amend, or permit any person to alter or amend the Website without the written consent of the Client;
(b) post or display on the Website any advertisement, sponsorship or promotion without the written consent of the Client;
(c) use any user data for marketing, referral or other purposes except as expressly authorised by this contract;
(d) sub-licence, rent, time-share, lease, lend or grant any rights to use the Website; or
(e) assign, transfer or authorise anyone else to exercise the rights in any licence granted pursuant to this contract.
12.6 The Provider will make best efforts to ensure that the Client receives continual and uninterrupted Services (including network or hosting servers) during the term of this contract, however the Provider does not in any way warrant or otherwise guarantee the availability of the Services, which shall be subject to regularly scheduled maintenance cycles, and many events/circumstances beyond the control of the Provider. In no event, though, shall the Provider be liable to the Client for damages (including loss of income) resulting from or in relation to any failure or delay (including server downtime, programming errors, lack of connection or slow connection) of the Provider to provide Services under this contract, or any loss of data, if such delays or failures are due to circumstances beyond our control. Such a failure or delay shall not constitute a default under this contract.
12.7 The Provider may, at their sole discretion, limit or deny access to the Services is, in the judgement of the Provider, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network.
12.8 Where the Client engages a third party hosting provider, the Provider shall not be held liable should the Client’s Website be affected by 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 Web site.
12.9 Website Maintenance Services:
(a) Subject to clause (b), the Provider will provide the Website Maintenance Services in accordance with the maintenance terms set out in the Provider’s maintenance schedule.
(b) The Client will procure all necessary authorisations, licences and consents to enable the Provider to have access to the Website in order to provide the Maintenance Services.
(c) Should the Client maintain the Website, then the Provider shall not be held responsible or liable for any interruption or non-performance of the Website and shall be entitle to charge the Client for any remedial work that may be required to store the function of the Website.
12.10 Client’s Obligations:
(a) The Client will, at its sole cost and expense:
(i) subject to any contract with the Provider for Website Development, develop and maintain the Website;
(ii) provide the content to the Provider, in such form as reasonably prescribed by the Provider from time to time, and hereby grants the Provider a non-exclusive, worldwide, irrevocable licence to use such content for the purposes of hosting the Website;
(iii) do all things reasonably necessary to enable the Provider to host the Website on the Provider’s webserver;
(iv) change the type of hosting account used if that account is deemed by the Provider to be unacceptable because of poor service, lack of bandwidth or in any other way insufficient to support the Website;
(v) is responsible for any fees payable and due to previous hosting organisations engaged by the Client;
(vi) ensure that content supplied to the Provider 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 Hosting Services.
(b) The Client will not:
(i) logon to an account that the Client is not authorised to access;
(ii) access data or take any action to obtain services not intended for the Client;
(iii) attempt to probe, scan or test the vulnerability of any system, subsystem or network;
(iv) tamper, hack, modify or otherwise corrupt or breach security or authenticity measures without proper authorisation;
(v) transmit any material outlined in clause 12.10(a)(vi);
(vi) do anything that prevents or hinders the Provider from providing Hosting Services to any other person.
(c) The Client acknowledges that spamming (i.e. the sending of unsolicited email), email address cultivation, or any unauthorised collecting of email addresses without prior notification of the email address owner is strictly prohibited.
(d) Further to clause 4, it shall be the responsibility of the Client to advise the Provider where the Client no longer needs the Hosting Services due to:
(i) closure of the Client’s business; or
(ii) the domain name or Hosting Services are no longer needed or wanted; and
(iii) cancellation of these Services shall be in accordance with clause 24.
12.11 Network Traffic:
(a) Network traffic shall be measured by the Provider and may include all forms of traffic to and from the Website. Domestic data transfer is provided free of charge, but the Provider reserve the right to suspend Hosting Services (at any time and without notice to the Client) for what it deems to be excessive traffic usage.
12.12 Limitation of Liability for Hosting Services:
(a) In consideration of clause 29.3, in the event the Hosting Services provided to the Client are disrupted or malfunction for any reason, the Provider’s liability shall be limited to damages which under no circumstances shall exceed the amount due and payable by the Client to the Provider for the Hosting Services during the period of disruption or malfunction.
13. Email Hosting Services
13.1 It shall be the Client’s responsibility for the set-up and configuration of the Client’s email on any business computer or mobile devices, etc. Should the Client prefer, the Provider can refer a third party IT service professional.
14. Search Engine Optimisation (SEO)
14.1 Although the Provider shall use their knowledge and experience to gain the best results possible, the Provider 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 Provider.
15. Domain Registration
15.1 Where the Provider is to register a domain name on the Client’s behalf, the Provider cannot guarantee the availability of the domain name, nor assume a successful registration of such a name.
16. Risk and Limitation of Liability for Client Data
16.1 The Provider shall recommend to the Client (where applicable) of any system upgrades that may be required to maintain the integrity of third party software, however, should the Client decline to follow these recommendations, then the Provider shall be indemnified of any loss, costs, damage or loss of system/software performance that may result.
16.2 The Client shall provide the Provider with data in the following formats:
(a) for text, files shall be in an electronic format as standard text (.txt) or Work (.doc) on a USB or via email;
(b) for imaged, in an electronic format as prescribed by the Provider on a USB or via email with the images of a suitable quality applicable for the use intended and without any subsequent image processing being required. The Provider shall not be responsible for the quality of images scanned from printed materials;
(c) 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.
16.3 The Client acknowledges and agrees that the Provider shall not be held responsible or liable for:
(a) anything related to the Website, Hosting Services or any other Services provided;
(b) any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of the Provider;
(c) any loss, corruption, or deletion of files or data (including, but not limited to software programmes) resulting from illegal hacking or Services provided by the Provider. Whilst the Provider will endeavour to restore the Website, files or data (at the Client’s cost), it is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to the Provider providing the Services. The Client accepts full responsibility for the Client’s software and data and the Provider is not required to advise or remind the Client of appropriate backup procedures (unless included as part of the Services);
(d) any spamming, phishing, pharming or spoofing originating from the Client’s Website or online system;
(e) any loss or damage to the Client’s software or hardware caused by any ‘updates’ provided for that software.
16.4 The Provider, its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by the Provider to the Client.
16.5 The Services are provided on an “as is, as available” basis. The Provider specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.
16.6 Public Access:
(a) The Client understands that by placing information on the Website, such information may be accessible to all internet users. The Provider 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 Provider, or on the internet generally.
16.7 Defective Services:
(a) The Client shall inspect/review the Services on provision and shall within five (5) business days (for Website) or seven (7) days (for print/branding Services) of such time notify the Provider of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford the Provider an opportunity to inspect/review the Services within a reasonable time following such notification 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.
(b) For defective Services, which the Provider has agreed in writing that the Client is entitled to reject, the Provider’s liability is limited to either (at the Provider’s discretion) replacing the Services or rectifying the Services, provided that the Client has complied with the provisions of sub-clause (a).
17. Protection of Reputation
17.1 Any misuse, misrepresentation or any other action that negatively impacts the Provider’s brand which is deemed to damage and/or tarnish the reputation of the Provider’s brand, the Client must cease and desist from such misuse, misrepresentation or other action immediately on receipt of a written notice from the Provider to this effect.
18. Title
18.1 The Provider and the Client agree that the Client’s obligations to the Provider for the supply of Services shall not cease (and ownership of any Goods shall not pass) until:
(a) the Client has paid the Provider all amounts owing to the Provider for the Services; and
(b) the Client has met all other obligations due by the Client to the Provider in respect of all contracts between the Provider and the Client.
18.2 Receipt by the Provider 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 Provider’s ownership or rights in respect of the Services, and this contract, shall continue.
18.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 18.1:
(a) the Client is only a bailee of the Goods and must return the Goods to the Provider on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Provider and must pay to the Provider the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Provider and must pay or deliver the proceeds to the Provider on demand.
(d) the Client should not convert or process the Goods 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 Provider and must sell, dispose of or return the resulting product to the Provider as it so directs.
(e) the Client irrevocably authorises the Provider to enter any premises where the Provider believes the Goods are kept and recover possession of the Goods.
(f) the Provider may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Provider.
(h) the Provider may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Client.
19. Personal Property Securities Act 1999 (“PPSA”)
19.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Services and/or all collateral (account) – being a monetary obligation of the Client for the Services – that have previously been provided, and that will be provided in the future, by the Provider to the Client.
19.2 The Client undertakes to:
(a) 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 Provider may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Provider for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made thereby;
(c) not register a financing change statement or a change demand without the prior written consent of the Provider.
19.3 The Provider and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
19.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
19.5 Unless otherwise agreed to in writing by the Provider, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
19.6 The Client shall unconditionally ratify any actions taken by the Provider under clauses 19.1 to 19.5.
20. Security and Charge
20.1 In consideration of the Provider agreeing to provide the 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).
20.2 The Client indemnifies the Provider from and against all the Provider’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Provider’s rights under this clause.
20.3 The Client irrevocably appoints the Provider and each director of the Provider as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 20 including, but not limited to, signing any document on the Client’s behalf.
21. Intellectual Property and Confidentiality
21.1 Where the Provider has designed, drawn or developed Services (including the Website) for the Client, the Provider retains full intellectual property ownership of the Services, including the copyright in any draft, mock-up, concept or final development, working/native graphic and web files, designs, drawings and documents, and the Provider hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use the Services solely in relation to the operation of the Client’s own business, conditional upon the Client fulfilling their obligations under this contract (including, but not limited to, the full payment of the Price).
21.2 The Client acknowledges and accepts that:
(a) any ‘final’ artwork will be provided in a format that cannot be manipulated; and
(b) where editable files are requested, prior to any artwork being created:
(i) the parties must agree to the files being provided; and
(ii) a contract shall be put in place; and
(iii) where a contract is not signed due to the best interest of both parties, a fee shall be determined by the Provider based on the appropriate market value.
21.3 Subject to the Copyright Act 1994 and the conditions therein, where the Provider or their subcontractor has provided the Client with a licence for use on any design, copy, writing, drawing, image, illustration, idea or code created for the Client, the licence shall be for use by the Client on a one-time only basis and may not be modified, re-used, or re-distributed in any way or form without the express permission of the Provider and any of its relevant subcontractors.
21.4 All design work where there is a risk that another party makes 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 Provider shall not be held responsible for any or all damages resulting from such claims.
21.5 The Client hereby authorises the Provider to utilise images of the Services created by the Provider in advertising, marketing, or competition material by the Provider including, but not limited to:
(a) the Client permitting the Provider to place a small credit on printed material, exhibition displays, advertisement and/or link to the Provider’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;
(b) allowing the Provider to place web sites and other designs, along with a link to the Client’s Website on the Provider’s own web site for demonstration purposes and to use any designs in the Provider’s own publicity.
21.6 The Client shall indemnify the Provider against any claims by third parties for patent, trademark, design or copyright infringement, directly or indirectly arising out of the design, workmanship, material, construction, or use of the Services or any other deficiency therein. Where the Client has supplied drawings, sketches, files or logo’s to the Provider, the Client warrants that the drawings, sketches, files or logo’s do not breach any patent, trademark, design or copyright, and the Client agrees to indemnify the Provider against any action taken by a third party against the Provider.
21.7 Notwithstanding anything herein, the Intellectual Property Rights in the Provider’s Services do not vest in the Client and there is no assignment of these Intellectual Property Rights to the Client. The Provider hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use and reproduce the Services for the purposes of this contract 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 Provider unless express approval is given in advance by the Provider. Such license shall terminate on default of payment or any other terms of this contract by the Client.
21.8 All PHP, Java Script, and HTML coding and other supplied code (if any) remains the intellectual property of the Provider. Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright.
21.9 Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any 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.
22. Consumer Guarantees Act 1993
22.1 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 supply of Services by the Provider to the Client.
23. Default and Consequences of Default
23.1 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 Provider’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
23.2 If the Client owes the Provider any money the Client shall indemnify the Provider from and against all costs and disbursements incurred by the Provider in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Provider’s collection agency fees, and bank dishonour fees).
23.3 Further to any other rights or remedies the Provider may have under this contract, if a Client has made payment to the Provider, 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 Provider under this clause 23 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.
23.4 Without prejudice to the Provider’s other remedies at law the Provider shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Provider shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Provider becomes overdue, or in the Provider’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by the Provider;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
24. Cancellation and Termination
24.1 Without prejudice to any other remedies the Provider may have, if at any time the Client is in breach of any obligation (including those relating to payment, whether or not the payment is due to the Provider) the Provider may suspend or terminate the provision of Services to the Client, (this includes but is not restricted to, withholding domain codes, passwords and Goods, and/or blocking or restricting public and Client access to the Website, or removing the Website from the web completely) and any of its other obligations under the terms and conditions. The Provider will not be liable to the Client for any loss or damage the Client suffers because the Provider has exercised its rights under this clause.
24.2 The Provider may cancel these terms and conditions or cancel provision of the Services at any time before the Services are provided by giving written notice. The Provider shall not be liable for any loss or damage whatever arising from such cancellation.
24.3 At the Provider’s sole discretion the Client may cancel provision of the Services. In the event that the Client cancels provision of the Services the Client shall be liable for any costs incurred by the Provider (including, but not limited to, loss of profit) up to the time of cancellation.
24.4 Where the Client cancels an order:
(a) the initial notification may be by telephone or email but must be confirmed in writing within fourteen (14) days;
(b) the Client shall be invoiced for all work completed over and above the non-refundable deposit as per clause 6.5(i);
(c) where failure clause 24.4(a) occurs, the Client shall be required to pay the full quoted cost of the Services.
24.5 Where a Client changes their mind after an order is signed off to either change or relinquish the Goods and Services, the Client is required to make payment for the original completed work as per clause 24.4(b).
24.6 Should the Client, for any reason, cause the Services to be delayed for more than one (1) month after the acceptance date, this contract will be terminated by the Provider (at their sole discretion) and all Services completed, but not billed or paid, will be payable in full within fourteen (14) days from the date of the submitted invoice.
24.7 If the Client fails to comply with any of the provisions of this contract and does not rectify such non-compliance within seven (7) days of the Provider giving notice either in writing, via fax or email, then the Provider may without prejudice to any other rights or remedies, and without being liable to the Client for any loss or damage that may result, give notice to the Client terminating their right to use the Website, Software and Services. Upon termination of the contract, the Client shall lose all right to use the Website and products, and shall forthwith deliver the Goods to the Provider and destroy all copies made. The Client shall certify in writing that the copies have been destroyed.
24.8 In the event the Services are terminated as per clauses 24.4 or 24.7, the Services can be re-instated under a new contract at the prevailing rates; however no credits or discounts will be granted, and reinstatement costs shall apply.
24.9 Fixed Term Contracts
(a) Where this contract relates to a fixed term contract, all payments shall fall due as per the payment schedule. To terminate the fixed term contract on, or after, the current annual term, the Client must give the Provider not less than twenty (20) working days’ notice prior to the current anniversary date of this contract. The Services will then terminate at the end of the then current annual term. If the Client does not terminate the Services on expiry of the current annual term, the Services shall revert to a month-by-month basis charge until otherwise agreed by both parties. Any additional Services shall become due and payable until notice (as herein) is received.
25. Privacy Act 1993
25.1 The Client authorises the Provider or the Provider’s agent to:
(a) access, collect, retain and use any information about the Client;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by the Provider from the Client directly or obtained by the Provider 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.
25.2 Where the Client is an individual the authorities under clause 25.1 are authorities or consents for the purposes of the Privacy Act 1993.
25.3 The Client shall have the right to request the Provider for a copy of the information about the Client retained by the Provider, and the right to request the Provider to correct any incorrect information about the Client held by the Provider.
26. Dispute Resolution
26.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, arbitration in accordance with the Arbitration Act 1996 or its replacement(s) where the parties are unable to reach a mutually agreeable remedy.
27. Service of Notices
27.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
27.2 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.
28. Trusts
28.1 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 Provider may have notice of the Trust, the Client covenants with the Provider as follows:
(a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) 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.
(c) the Client will not without consent in writing of the Provider (the Provider will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
29. General
29.1 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.
29.2 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 New Plymouth Courts in New Zealand.
29.3 The Provider shall be under no liability whatsoever to the Client for any expenses, claims, costs (including but not limited to legal fees and commissions), damages suffered or incurred by the Provider, or indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Provider of these terms and conditions, caused by any failure by the Client to comply with their obligations under this contract, or that arise from any claim relating to the Services by any person that the Client authorises to use the Services, or where due to server downtime or programming errors (alternatively the Provider’s liability shall be limited to damages which under no circumstances shall exceed the Price).
29.4 The Provider may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
29.5 The Client cannot licence or assign without the written approval of the Provider.
29.6 The Provider 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 Provider’s sub-contractors without the authority of the Provider.
29.7 The Client agrees that the Provider may amend these terms and conditions at any time. If the Provider makes a change to these terms and conditions, then that change will take effect from the date on which the Provider notifies the Client of such change via email. The Client will be taken to have accepted such changes if the Client makes a further request for the Provider to provide Services to the Client.
29.8 Neither party shall be liable for any default due to fires, explosions, severe weather, industrial disputes, insurrection, requirements or regulations, or any civil or military authority, acts of war (whether declared or not), civil unrest, acts of God, earthquake, flood, riot, embargo, government act, strike, lock-out, storm, terrorism, or failure or outage of any telecommunications links or other connections forming part of the Internet which are beyond the reasonable control of either party.
29.9 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.