Terms and Conditions
Last updated 2022
TERMS AND CONDITIONS – PLEASE READ CAREFULLY
By ordering goods or services from us, you agree to these Terms and Conditions to the exclusion of your terms (if any).
1. Scope of Work
1.1 These Terms and Conditions apply to all goods and services we supply to you and any other work that we undertake for you from time to time, whether it be branding services, graphic design, marketing work, website design, web hosting, consultancy work, the production of any deliverables or anything else (“Work”).
1.2 We will undertake such Work as we agree with you (including any contact appointed by you) in writing or verbally from time to time.
1.3 You can ask us to stop Work at any time for any reason. If you do ask us to stop any Work permanently we will invoice you for what we have undertaken for you up until that point in time only.
2. Fees
2.1 You agree to pay us our Fee in return for us performing the Work.
2.2 In the absence of any agreement to the contrary, we will charge you fees at our usual rates on a time and materials basis. A schedule of our rates and charges are available on request.
2.3 Any estimate we provide is based on anticipated costs at the time and is for information purposes only, unless we have agreed in writing to be bound by a set price (quote) for the Work.
2.4 If we agree to charge for Work on a quote basis, we will charge our Fee on that basis.
2.5 We will notify you if we have agreed to undertake Work for you on a quote basis and:
(a) the scope of the Work required to be undertaken exceeds the fixed fee parameter; or
(b) the cost of materials, goods, or other increases from that indicated on our quotation,
In such circumstances, we will provide you an estimate for the additional Work undertaken outside the fixed fee parameters or additional costs on a time and materials basis.
2.6 In addition to our fees, we may charge you disbursements for third party costs we incur on your behalf.
2.7 Unless we agree with you otherwise, all Fees are payable by you in New Zealand dollars and are plus GST (where applicable) and other taxes and levies.
3. Terms of Payment
3.1 In some cases we may require part or all of our Fee for the Work to be paid in advance. We will advise you at the outset if this applies to you so you can decide if you want to proceed with engaging us for the Work.
3.2 Payment for the Work (and any associated expenses and disbursements) is due 20th of the month following the date of our invoice except where we have agreed in writing that other terms shall apply (“the Due Date”).
3.3 If you do not make payment on the Due Date, you are in default and must pay default interest at the rate of 20% per annum, which shall accrue on a daily basis on the total amount outstanding from the Due Date to the date of payment in full.
3.4 If payment is outstanding for more than 7 days from the Due Date, we may suspend performing any Work until the date of payment in full or terminate this agreement. Where we terminate this agreement we will give you at least 10 workings days’ notice and such termination will not affect any right that arises prior to such termination with respect to money payable.
3.5 All payments of Fees and disbursements must be made without set-off or deduction of any kind.
4. Performance Guarantee and Extent of Liability
4.1 We agree that we will:
(a) perform the Work in a professional manner;
(b) endeavour to ensure that the Work is performed in accordance with any time frames agreed with you subject to clause 4.3;
(c) liaise with you during the course of performing the Work in accordance with your reasonable requirements;
(d) undertake basic desktop checks to assess whether any design, mark, logo or branding we create for you is likely to infringe any third party’s intellectual property rights;
4.2 Given the nature and scope of our Work, we cannot (and do not) guarantee that:
(a) any website we create or host for you will be:
(i) completely error-free;
(ii) fully secure from hacking; and
(iii) achieve any ranking or level of search engine performance;
(b) any final proof that we have submitted to you for your review and checking before it is finalized will be error free at the time of publication or printing;
(c) your use of any Work will comply with your legal obligations;
(d) any design, mark, logo or branding we create for you does not infringe any third party’s intellectual property rights or will be registerable with Intellectual Property Office of New Zealand (IPONZ);
(e) any advertising or marketing campaign will achieve any level of responses or results.
4.3 If we have given you a timeframe for completion of the Work, unless agreed in writing to the contrary, such time frame is approximate only and is not deemed to be of the essence.
4.4 Subject to clause 4.2(b) we warrant that all goods delivered to you will be subject to any material defect. Where you notify us of any material defect within 7 days of delivery we will repair or replace such goods. We will use our reasonable endeavours to pass on the benefit of any of our supplier warranties.
4.5 To the maximum extent permitted by law, we exclude any and all implied warranties, conditions or obligations (including those under The Consumer Guarantees Act 1993 and/or the Fair Trading Act 1986), whether arising under statute, common law, equity or otherwise, to the maximum extent permitted by law.
4.6 To the extent that we are liable for any reason for any loss suffered or liability incurred by you arising from any breach of these Terms and Condition or for any other reason, such liability is limited to an amount not exceeding the Fees paid to us by you in connection with the Work.
4.7 We will not under any circumstances be liable for any lost profit or consequential loss whether suffered or incurred by you or another person and whether in contract, or tort, or otherwise and whether such loss or damage arises directly or indirectly from any Work provided by us to you.
5. What You Agree To Do
5.1 You agree that you will give reasonable assistance to enable us to perform the Work by:
(a) giving clear instructions;
(b) promptly providing any information or content required from you for us to complete the Work. Any delays in delivering content in a timely manner may result in extra costs.
5.2 You agree that it is your responsibility to:
(a) upon request carefully and diligently check all proofs before they are published or go to the printers;
(b) obtain your own legal advice and ensure you are complying with all of your own legal obligations;
(c) ensure any Work you want to register is registerable with IPONZ;
(d) ensure that your use of any Work we create for you will not infringe any third party’s intellectual property rights;
6. Website Design and Hosting Services
6.1 Where we provide you with website hosting and design services you agree to:
(a) use your website for legitimate business purposes only and not engage in any conduct which is illegal, offensive, obscene, abusive, deceptive, harmful, defamatory or in breach of our terms or the terms of any third-party supplier we use in relation to the services and systems;
(b) take all reasonable steps to ensure that any files you upload to our services or systems do not contain any virus or harmful code;
(c) not to use our services or systems to engage in any spamming, phishing or the collection, upload or disclosure of credit card information otherwise than for legitimate business purposes and then only in accordance with the relevant industry standards relating to payment card data security;
(d) regularly backup your data and that we will not be liable for any data that is lost for any reason;
(e) keep any user names and password we provide you with secret and require your staff to do the same.
6.2 You acknowledge and agree that we provide our web hosting services through third party service providers:
(a) from time to time reasonable restrictions may be imposed on those services and systems including in relation to network traffic, bandwidth, number of subscribers or user accounts, download time, upload time and the size, length, quality, format of material that can be used in conjunction with our services;
(b) despite our efforts to maintain a continuous and secure hosting service from time to time:
(i) service interruptions may occur as a result of systems outages and issues with our systems or third party supplied services incorporated into our systems;
(ii) viruses and harmful code may affect our services; and
(iii) your data may be lost.
Where this occurs, we will where possible, use commercially reasonable efforts to rectify the service interruption or remove the virus and harmful code from our systems or restore any lost data to our systems as soon as possible. This service will be charged at our normal hourly rate;
(c) you are responsible for delivering all services offered on your website and ensuring that the information on the website is correct and up to date;
(d) nothing in this agreement is intended to create an employment, agency or joint venture relationship;
(e) you are solely responsible for meeting all of your own legal obligations, ensuring your website complies with all applicable laws, collecting all amounts due from your customers and paying your own taxes. You will also provide a privacy policy, terms and conditions, and any other legal requirement for you website and design work.
(f) All work completed for the Client will be archived indefinitely. There is not charge to the client for this service. There may be a fee charged for the retrieval of any files stored in the Archive.
6.3 You agree that we will not be liable for any matter specified in clause 6.2 and that such exclusion of liability is reasonable.
6.4 Where your website incorporates third party services you acknowledge that:
(a) those third party services may require updating or replacement from time to time;
(b) may be subject to the third party supplier’s terms of use and you agree to comply with such terms of use;
(c) are not controlled by us and it is your responsibility to monitor the risks associated with third party services.
6.5 Where you request a transfer of your website or domain name to another web hosting company we will provide reasonable assistance to you provided that you agree to meet our reasonable costs in respect of the migration of your website and any other service that requires migration.
7. Intellectual Property
7.1 For the purposes of this clause the term “Intellectual Property” includes all intellectual property rights (including without limitation copyright, patent and design rights, drawings, documents, data, source code, ideas, procedures and calculations).
7.2 In respect of any Intellectual Property used in the performance of the Work:
(a) all pre-existing Intellectual Property the subject of an Intellectual Property right resides with the owner as at the date of commencement of the Work (whether you or us);
(b) any new Intellectual Property will be dealt with in accordance with the balance of this clause 7.
7.3 If any Work is to be undertaken based on any designs or any materials provided by you, you warrant that use of those designs and/or other material in the Work by us will not infringe any third party’s Intellectual Property rights and you indemnify us against any loss, liability, costs and expenses in the event of any claim being made that the use of those designs or any materials provided by you in the Work infringes any ownership or Intellectual Property rights of any other person.
7.4 Unless we expressly agree otherwise in writing, and subject to clause 7.5 below, we are and will remain the exclusive owner everywhere in the world of all Intellectual Property rights and interests (including copyright and all other statutory and common law rights and interests) in the Work, and any other work performed by us for you, as first owner of those Intellectual Property rights and interests.
7.5 Upon payment of all amounts owing to us in accordance with these Terms and Conditions, we grant to you a perpetual, non-exclusive licence to make use of the product of final Work files which we have specifically created for you for the purpose for which it was created.
7.6 Subject to clause 8, you agree that we may use and refer to your story, our Work for you, your business name and Intellectual Property as part of our client portfolio, on our website, social media and other marketing materials to promote and market our business. You grant us a revocable non-exclusive royalty free licence in respect of such use of your Intellectual Property for promoting and marketing our business.
8. Confidentiality
8.1 For the purposes of this clause the term “Confidential Information” includes:
(a) all information given by one party (or its advisers) to the other party or their advisers on a confidential basis; and
(b) any information of a confidential nature which is obtained by one party as a consequence of us undertaking the Work,
in each case which is not in the public domain (otherwise than as the direct or indirect result of a breach of a confidentiality obligation of a party).
8.2 Each party must maintain as confidential at all times, and must not at any time directly or indirectly:
(a) disclose or permit to be disclosed to any person;
(b) use for itself or for any purpose other than the purpose for which it was given; or
(c) use to the detriment of another party,
any Confidential Information, except:
(d) as required by law or the rules of any relevant stock exchange on which the relevant party is listed;
(e) as is already or becomes public knowledge, otherwise than as a result of a breach of any provision of this Agreement by the party disclosing or using that Confidential Information;
(f) to our respective employees, contractors and advisers; or
(g) as authorised in writing by the other party.
8.3 We each agree to:
(a) take reasonable steps in the circumstances (and subject to clause 4.2(a)(ii)) to ensure that no third party may access any Confidential Information we each hold in respect of the other; and
(b) destroy (or procure the destruction of) any Confidential Information we hold in respect of the other upon receipt of a request to do so.
9. Privacy of Information
9.1 We collect and retain information where you or a third party provide that information to us (e.g. by telephone or email or in person) or where it is publicly available. We may also automatically collect information about your device and usage of our services when you use our website.
9.2 We may also collect, hold and have access to information that you collect about individuals where for example we provide web hosting services for you.
9.3 We hold information for the purposes of providing goods and services to you, to communicate with you, to invoice you, to improve our goods and services, to enforce our legal rights, to market our services to you and for any other purpose authorised by you or the Privacy Act 2020.
9.4 We may hold information provided by you at our offices, on our server or through third party cloud based software providers. A full list of third party cloud based software providers which hold information and their contact details is available on request.
9.5 Where we provide web-hosting services we may subcontract those web hosting services to a third party cloud based provider. On request, we will provide you with details of the provider and where the information is kept at the time of providing those services.
9.6 You authorise us to collect, retain and disclose your personal information in accordance with these terms.
9.7 Where you provide us with other’s personal information or use our web hosting services to collect or store that personal information you warrant that you have taken reasonable steps to obtain the individual’s informed consent and fully comply with your obligations under the Privacy Act 2020 in respect of the same.
9.8 You and your customer (where the information held by us relates to your customer) have the right to access and correct information in accordance with the Information Privacy Principles and Privacy Act 2020. You can contact us for this purpose by email at accounts@downing.nz, or PO Box 698, Nelson 7040, New Zealand or at our offices Level 1, 232 Hardy Street Nelson.
9.9 The supply of the information by you is voluntary but failure to provide information may prevent us from being able to fully provide our services to you in some instances.
10. Title and Personal Property Securities Act 1999 (PPSA)
10.1 We will retain title to Works we supply until they have been paid for in full and you have performed all your other obligations under these Terms.
10.2 Clause 10.1 creates a security interest in Works we supply to you.
10.3 You will not grant any other security interest or any lien over Works that we have a security interest in.
10.4 At our request you will promptly sign any documents and do anything else required by us to ensure our security interest constitutes a first ranking perfected security interest in the Works.
10.5 We may at any time enter your premises and properties to uplift Works that we have a security interest in.
10.6 If Works that we have a security interest in are processed, included or dealt with in any way causing them to become accessions, processed or commingled Works, our security interest will continue in the whole in which they are included. You will not grant any other security interest or any lien in either the Works or in the whole.
10.7 You waive any rights you may have under sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, and 133 of the PPSA.
10.8 You waive your right to receive a copy of any verification statement (as that term is defined in the PPSA).
10.9 You will give us prior written notice of any proposed change of your name or address.
11. Miscellaneous
11.1 Non-solicitation: You shall not solicit, employ or entice away or attempt to do so, any employee or contractor of ours without written consent from us. We will not solicit, employ or entice away or attempt to do so, any employee or contractor of yours without your written consent
11.2 Variation: We shall be entitled at any time by providing at least 3 months’ notice in writing to you to vary any provision of these Terms of Trade and you shall be bound by such variation.
11.3 Costs: You must pay our costs (including legal costs, as between solicitor and client) of and incidental to the enforcement or attempted enforcement of our rights, remedies and powers under these Terms of Trade.
11.4 Termination: Either party may terminate these Terms of Trade at any time by giving written notice to the other party.
11.5 Assignment: You must not assign any of your rights, powers or obligations under these Terms of Trade without our prior consent in writing. We will not unreasonably or arbitrarily withhold our consent.
11.6 Force Majeure: We shall not be liable for delay or failure to perform the Work if the cause of delay or failure is beyond our control.
11.7 Survival: Any other provision which by its nature is intended to survive the termination or expiration of these Terms of Trade will survive the termination or expiration of these Terms of Trade or completion of the Work.
11.8 Governing Law and Jurisdiction: The parties agree that these Terms of Trade shall be governed by New Zealand law and the parties hereby submit to the exclusive jurisdiction of the New Zealand courts in relation to any matter arising in connection with these Terms of Trade or the provision of Work (or the failure to provide Work) by us to you.
