1.1 These terms apply to all Services that we, Kiwise Advertising Ltd. T/a Kiwise Digital, provide to you except when we have expressly notified you otherwise in writing.
1.2 The meanings of capitalised terms not otherwise defined in these terms and other matters of interpretation, are set out in the Appendix.
2 Provision of Services
2.1 Services: We will provide you with the Services as described in each Terms of Reference.
2.2 Terms of Reference: The Terms of Reference are based upon information that you provide to us. Therefore, you must make sure that you fully brief us on all relevant matters. When the Terms of Reference is agreed and signed by you it shall be deemed to be a complete statement of all of your requirements in relation to the Services described in the Terms of Reference.
2.3 Delivery: We will use reasonable endeavours to ensure completion of any Services by any specified delivery date and achievement of any specified milestones by the dates outlined, having regard to the availability of personnel, supplies, facilities and commitments to other clients. Any dates agreed for the commencement or completion of the Services or the delivery of any Application in a Terms of Reference or otherwise are estimates only and time shall not be of the essence. We shall not be liable to You for any reasonable delays in the delivery of any Services.
3.1 Sometimes projects require changes which weren’t expected at the outset or you may request changes to the Services. If this happens, we will both try and agree upon a Variation. Once agreed, any Variation will become part of the Terms of Reference for that project. If we cannot agree on a Variation the Services will continue in accordance with the original Terms of Reference.
4 Charges and Payment
4.1 Time and Materials Basis: Unless otherwise specified in the relevant Terms of Reference, the Services are provided on a time and materials basis. The hourly charges for the Services will be stated in the Terms of Reference or otherwise agreed with you at the time the Agreement is made. If no hourly rates are stated in the Terms of Reference or otherwise agreed, the Services are provided to you at our standard hourly rates for such Services as at the time of the Agreement.
4.2 Estimates not binding: We may provide with you an estimate of the total cost of the Services we are to deliver. Such estimates is based upon the number of hours we anticipate the project will take based on your instructions and our past experience. Where an estimate is provided however, it is not binding and may be exceeded. We will still charge you strictly on a time and materials basis in accordance with clause 4.1.
4.3 Charges: You agree to pay: (a) The Charges for the Services and associated costs and materials as specified in the Terms of Reference or otherwise provided in these terms; (b) All expenses reasonably incurred by us and included in the Terms of Reference or otherwise approved by you in advance; and (c) Goods and services tax on the Charges and all other amounts payable by you under the Agreement at the prevailing rate.
4.4 Payment Terms: Unless we otherwise agree: (a) you shall pay all invoices within 5 Working Days of the date of invoice; (b) You shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to you by us nor to withhold payment of any invoice because part of that invoice is in dispute; (c) The Charges and all other amounts payable under the Agreement are in legal currency of New Zealand; and (d) If we consent to you paying your invoices via an online payment facility (such as Paypal), you agree to pay all fees, commissions and other amounts charged in relation to use of that payment facility by you. Only the net amount received by us after all such fees. commissions and charges will be credited against payment of your account.
4.5 Late Payment: If you do not pay the Charges on time we may, at our option do any or all of the following: (a) Suspend or stop providing the Services; (b) terminate the relevant Terms of Reference in accordance with clause 11; (c) refer your account to a debt collection agency; (d) charge you all collection costs incurred by us, and you agree to indemnify us from and against all costs and disbursements incurred by us in recovering the unpaid Charges (including but not limited to reasonable internal administration fees, legal costs on a solicitor and own client basis, our collection agency’s costs, and bank dishonour fees); (e) charge you default interest, from the date when payment was due until the actual date of payment, on all amounts owing (including default interest), at a rate of two percent (2%) or $25 per calendar month (whichever is the larger).
4.6 Invoice Disputes: If you dispute an invoice or any amount in an invoice in good faith, you agree to notify us as soon as practicable but no later than 30 days after the date of the relevant invoice but nevertheless shall pay the whole of such invoice by its due date. If you do not notify a dispute to us in writing within 30 days of the date of the invoice (time being of the essence) you will be deemed to have accepted that invoice as being true and correct. Invoice disputes shall be dealt with in accordance with clause 12.
4.7 Security Interest: As security for the prompt and complete payment of the Charges, you hereby grant a security interest and charge to us, in and to your entire right, title and interest in, to and under the Application and any copyright in or relating to the Application (“Copyright”), now owned or hereafter acquired by you or in which you now hold or hereafter acquire any interest. Sections 114(1)(a), 133 and 134 of the Personal Properties Securities Act 1999 (“Act”) shall not apply to the security interest created under this clause and you waive all rights under sections 121, 125, 129, 131, 132 and 148 of the Act.
5.1 Kiwise Digital Warranties: We warrant that: (a) all Services and any Application provided by us under the Agreement will: (i) Be provided with due care and skill and in a competent and professional manner; and (ii) Comply with the description and specification (if any) as set out in the relevant Terms of Reference. (b) we will bring a pro-active, open and constructive approach to the Services and to our relationship with you under the Agreement.
5.2 Other Warranties Excluded: The warranties above replace all other representations and warranties (statutory, express or implied) and all other such representations and warranties are excluded to the maximum extent allowed by law. In particular, we do not warrant that the Services or the Application (if any) will: (a) be completely free of defect or error; or (b) be completely secure; or (c) work on all internet browsers, operating systems, devices and screen resolutions.
5.3 Consumer Guarantees Act: To the extent that the Services are purchased by you for the purpose of your business, the provisions of the Consumer Guarantees Act 1993 do not apply.
6 Your Responsibilities
6.1 Responsibilities: You agree to: (a) provide the resources, materials, facilities and documentation specified in a Terms of Reference or otherwise agreed; (b) pay the Charges for the Services in accordance with these terms and the Terms of Reference; (c) provide information and make timely decisions as required for the Services and provide any other information you have which is relevant to Us in performing the Services; (d) promptly and diligently perform your obligations under the Agreement; (e) provide access to your employees, agents and other contractors as we reasonably require to enable Us to provide the Services and perform Our obligations to you, and use reasonable endeavours to ensure that such employees, agents and contractors co-operate with Us; (f) have and maintain a complete backup of data and information that is provided to us; (g) obtain (unless a Terms of References provides that we will obtain) and if required pay for, any consents and licenses required for us to incorporate agreed third party materials into the Services or any Application and to comply with all relevant licences and terms and conditions associated with such third party materials; (h) treat Our employees and contractors with courtesy and respect; (i) not use the Services or Application (if any) for any unlawful purpose or in any manner which infringes on the legal rights of any third party; and
(j) bring a pro-active, constructive and co-operative approach to the Services and to the relationship with Us.
6.2 Warranties: You warrant that all Content Materials and other data and information you supply to us or place within any Application: (a) are complete and accurate and not likely to mislead or deceive or cause damage to the reputation of any person or company; and (b) do not infringe, and will not cause us to infringe, upon any third party’s Intellectual Property and you agree to indemnify us on demand against any action taken by a third party against us in respect of any such infringement.
6.3 Non-Solicitation: Whilst we provide Services to you and for a further period of 12 months after we cease to provide Services, you will not, without our prior written consent (which we shall be under no obligation to provide) directly or indirectly employ, otherwise engage the services of, or solicit for employment or contract any of our contractors or employees.
7 Intellectual Property
7.1 Existing Intellectual Property: All existing Intellectual Property owned by us, together with all modifications, adaptions or developments to or based on such existing Intellectual Property, is and will remain our property. Except as provided in clause 7.2, you obtain no rights or interests in our existing Intellectual Property.
7.2 Licence of Existing Intellectual Property: Subject to full payment of the Charges, where you require the use of our Intellectual Property in order to access or use the Services and any Application, we grant you a single, non-exclusive, non-transferable and royalty-free licence to use our Intellectual Property, solely for the purposes of your business and as envisaged under the Terms of Reference.
7.3 Content Materials: Except only as is necessary for us to provide the Services to you, we obtain no rights or interest in your Content Materials.
7.4 Third Party IP: Sometimes the Services and deliverables may include the supply of third party Intellectual Property (“Third Party IP”). All Third Party IP is provided “AS IS” and without any warranties other than those (if any) from the owner. The owners of Third Party IP may require you to comply with their end user licence agreement (“EULA”). Such EULAs are either freely available or we will include them as part of the deliverables or in a separate file accompanying the deliverables.
7.5 New Intellectual Property: Once you have paid the Charges, all new intellectual property created by us for you in connection with the Services (if any) will be owned by you. You grant us an irrevocable, perpetual, transferable, non-exclusive and royalty-free licence to use, modify and adapt and licence others to use, modify and adapt the whole or any part of such new intellectual property.
7.6 Use of Ideas: Subject to this clause 7 and to any restrictions on the use of confidential information under clause 10, we shall be entitled to use the ideas, concepts, tools, methodologies and know how gained by us as a result of performing the Services for other applications or customers.
8.1 Exclusion of Liability: We will not be liable to you, or any third party, for any: (a) loss or damage to information or data from any cause;
(b) breach of security; (c) loss of income, profit, business opportunity, goodwill and/or savings; or (d) incidental, indirect, special, consequential or punitive loss or damage.
8.2 Third Party Products and Services: If we recommend that you use someone else’s products or services in conjunction with the Services, you agree that we will have no liability (however arising) in respect of such products or services or the provision of such products and services to you. For the avoidance of doubt, this includes the use of any automatic credit card transaction process facility or payment gateway.
8.3 Directors and Personnel: None or our directors or Personnel shall have any personal liability to you in relation to the Services or the Agreement and you agree not make any claim or issue any or proceedings under any statute, regulation or rule of law for loss or damage suffered by you or any third party against any such director or Personnel.
8.4 Limitation of Liability: In any event, our maximum aggregate liability to you arising out of any claim for loss or damages (for any cause whatsoever) will under no circumstances exceed an amount equal to the total charges paid by you under the relevant Terms of Reference in the three (3) month period immediately preceding the date on which the event (or, if more than one event, the first of such events) giving rise to liability occurred or $20,000, whichever is the lesser.
8.5 Force Majeure: Sometimes we will not be able to fulfil our responsibilities through no fault of our own. We are not responsible for any failure or delay to perform our obligations due to events beyond our reasonable control or any failure by you to perform any of your responsibilities under this Agreement in a timely manner.
8.6 General Application: The limitations and exclusions of liability in this clause 8 shall apply however liability arises, whether in contract, tort (including negligence), breach of statutory duty or otherwise.
9 Privacy and Information
9.1 Collection and Use: You authorise us and our agents to: (a) access, collect, retain and use any information about you for the purpose of assessing your creditworthiness, meeting our obligations and enforcing our rights under the Agreement and for marketing our products and services to you. (b) disclose information about you, whether collected by us from you directly or obtained by us 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 you. (c) with the exception of any Confidential Information, exchange the information we hold about you with our contractors, agents and representatives for the purpose of meeting our obligations under the Agreement. (d) Monitor and record calls you make to us or we make to you in order to improve the service we provide to you and to assist us with meeting our obligations to you.
9.2 Privacy Act: Where you are an individual, the authorities under clause 9.1 are authorities or consents for the purposes of the Privacy Act 1993.
9.3 Access and Correction: You shall have the right to request us for a copy of the information about you retained by us and the right to request us to correct any incorrect information about you held by us.
9.4 Media Releases: All media releases, public announcements and public disclosures by any party relating to the Agreement or its subject matter, but not including any announcement intended solely for internal distribution or any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of such party, shall be coordinated with, and approved by, both parties.
9.5 Marketing and Communications: Notwithstanding clause 9.4, we may: (a) include a reference on the bottom of the homepage (or equivalent) of the Application, crediting the development of the Application to Kiwise Digital and/or any of our approved suppliers; (b) list you and the general nature of the Services on our marketing materials, including on any website we operate; and (c) from time to time, send you e-mails with articles and information about our organisation and products and services that we think may be of interest to you. You may elect not to receive such e-mails at any time by clicking the ‘unsubscribe’ link at the bottom of those e-mails or by contacting our customer services.
10.1 Non-disclosure: Each party will: (a) keep absolutely secret and confidential at all times all Confidential Information provided by the other or of which the recipient and/or its Personnel become aware of in the course of providing or receiving the Services; (b) will use Confidential Information belonging to the other party only for the purposes of providing the Services or otherwise fulfilling the recipient’s obligations or enforcing the recipient’s rights under the Agreement; and (c) will not use, communicate, cause to be communicated, copy, make available or re-supply any Confidential Information to any person other than those of its Personnel to whom disclosure is necessary for the purposes of the Agreement without the prior written consent of the other party. Each party will first take steps with its Personnel to ensure that none of them uses any Confidential Information in a manner not authorised by the Agreement or discloses the same to any person without the prior written consent of the other party.
10.2 Protection of Information: We each agree to take the same measures (being not less than reasonable measures) to protect the other’s Confidential Information in our possession, as we take to protect the confidentiality of our own information.
10.3 Delete or Return: On receiving a request from a disclosing party following expiry or termination of a Terms of Reference, the recipient must use its best endeavours to delete or promptly return all Confidential Information (including any copies of such information) in its possession or control.
10.4 Exceptions: The obligations of confidentiality in this clause shall not apply to any Confidential Information: (a) which is or at any time becomes available to the public through no fault of that person; or (b) is lawfully disclosed to such persons by third parties not under confidentiality obligations; or (c) is independently developed by the recipient party without the use of the other party’s Confidential Information; or
(d) is required to be disclosed by the recipient party by a governmental agency or law.
10.5 Notification of breach of confidentiality: Each party shall promptly notify the other of the loss of any items containing Confidential Information and of any circumstances of which it becomes aware concerning any unauthorised possession, disclosure or use of any Confidential Information of the other party.
11.1 Termination for Cause: Either of us may terminate a Terms of Reference with immediate effect by providing written notice to the other party if the other party has: (a) been placed in receivership or liquidation, or entered into an arrangement or makes an assignment for the benefit of its creditors, or has become insolvent or bankrupt; or (b) breached a term of a Terms of Reference or these Terms and failed to remedy such breach after being given written notice allowing at least 10 Working Days to remedy the breach.
11.2 Termination without Cause: Either of us may terminate a Terms of Reference without cause and with immediate effect at any time by providing written notice of termination to the other party.
11.3 Consequences of Termination: Upon termination of a Terms of Reference: (a) any amounts owing by you to us under the Agreement for Services provided up to the date of termination must be paid immediately; (b) we shall promptly return all copies of Content Materials (if any) we hold and on receipt of payment for all amounts owing by you under the Agreement, we shall provide you with an electronic copy of the Application (if any) in the state it exists in at the date of termination and any documentation and other materials generated by us prior to the date of termination for your use as part of the Services; and (c) subject to clause 11.4, we may be regarded as discharged from any further obligations under the Terms of Reference.
11.4 Preservation of rights and remedies: Termination or cancellation of a Terms of Reference shall not relieve either party from any right, liability, or claim that has accrued on or before the date of termination or cancellation. Unless the context otherwise requires, the provisions of these Terms will survive termination or cancellation of a Terms of Reference.
12.1 Principles: The following principles apply to any dispute: (a) We each agree to use all reasonable efforts in good faith to resolve any dispute that may arise, and to minimise the impact of any dispute; (b) the dispute shall be confidential between the parties and their respective legal advisers, except to the extent that a party is required under clause10.4(d), to disclose any matter concerning the dispute; and (c) Each party must use all reasonable endeavours to ensure that where a dispute is reasonably foreseeable, it is dealt with at a sufficiently early stage to ensure that there is a minimum effect on the ability of a party to perform its obligations under the Agreement.
12.2 Exclusive process: Any dispute shall be discussed and resolved in accordance with this clause 12. No party may commence or maintain any action or proceeding in any court, tribunal or otherwise regarding a dispute without: (a) first giving a notice of dispute under clause 12.3; and (b) complying with, and completing, the dispute resolution process under this clause 12, except where it is seeking urgent interlocutory relief in relation to protection of Intellectual Property or Confidential Information.
12.3 Notice of dispute: A party must, as soon as reasonably practicable, give the other party notice (Dispute Notice) of any dispute. Prior to issuing a Dispute Notice and triggering the formal dispute resolution process in this clause, the parties will consult (in good faith) informally to see if they can resolve the issue.
12.4 Internal dispute resolution: (a) Any dispute will be referred initially to the parties’ Designated Representatives who will endeavour to resolve the dispute within 5 Working Days of receiving the Dispute Notice; and (b) If the dispute has not been resolved by the parties’ Designated Representatives within that 5 Working Day period, the dispute will be immediately referred to the chief executive officer of each party, who will endeavour to resolve the dispute within 5 Working Days of the dispute being referred to them.
12.5 Mediation: If the parties fail to resolve the dispute under clause 12.4 within 10 Working Days of the Dispute Notice being issued, the parties will try to settle the dispute by mediation. Either party may initiate mediation by giving written notice to the other party, and: (a) the mediator must be agreed by the parties. If the parties cannot agree on one within five Working Days after the mediation has been initiated, then the mediator shall be selected by the chair of LEADR (Association of Dispute Resolvers) New Zealand Inc (or his or her nominee); (b) before the mediation commences, the parties and the mediator must sign a mediation agreement in the form approved by [LEADR], subject to any variations agreed by the parties at the time of the dispute; (c) the costs of mediation shall be shared equally by the parties; and (d) The mediator will deal with any matter as expeditiously as possible but no later than 10 Working Days after referral to the mediator.
12.6 Not arbitration: Clauses 12.4 and 12.5 provide for a form of alternative dispute resolution and are not references to arbitration.
12.7 Venue: Any internal dispute resolution or mediation shall be held in Auckland, New Zealand.
13.1 Amendment: We may amend or replace these Terms from time to time. The amended or replacement Terms (“Amended Terms”) will apply to each Terms of Reference that is entered into or varied after the Amended Terms take effect. If you are in any doubt as to the terms of trade that apply to the Services please visit our website or contact our Customer Services to ask us for a free copy of our current Terms.
13.2 Waiver: Failure by us to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision.
13.3 Severability: If any term or provision of the Agreement, or its application to any person or circumstances is, to any extent, held to be invalid or unenforceable: (a) the remainder of the Agreement or the application of such term or provision to any other persons or circumstances will not be affected; and (b) each term and provision of the Agreement will be valid and enforceable to the maximum extent permitted by law.
13.4 Addresses and Notices: If any of your address details change, you agree to promptly provide us with your new address and contact details. We will send you notices and other communications to the last known address, fax number or email address you have given to us.
13.5 Assignment and Subcontracting: You may not assign any rights or obligations under this Agreement without our prior written consent. We may assign any rights under this Agreement without obtaining your prior approval. We may also sub-contract any of our obligations under this Agreement, but in so doing, will not be relieved of any liability to you under this Agreement.
13.6 Obligations: Each party shall observe and comply with all applicable laws in relation to the performance of that party’s obligations under the Agreement.
13.7 Entire Agreement: The Agreement will constitute the entire agreement between the parties in relation to the provision of the Services and supersedes all prior written and oral proposals, agreements and communications between the parties.
13.8 Governing Law: 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 non-exclusive jurisdiction of the Courts of New Zealand.
“Agreement” means the contractual relationship between you and us which is comprised of these terms, each Terms of Reference and any Variations.
“Application” means the software application(s), website system and other deliverables (if any) we create or modify, adapt, enhance or update for you as part of the Services.
“Charges” means all charges payable by you to us for the Services. “Confidential Information” means all information, know-how, ideas, concepts or business knowledge relating to the business, clients, employees, Personnel or activities of the disclosing party to the Agreement and for the avoidance of doubt, includes the Terms of Reference.
“Customer Services” means the Kiwise Digital support team, which is contactable by email on [email protected] or by phone on +64 9 551 5526.
“Content Materials” means all written copy, illustrations, diagrams, photographs or other materials provided or procured by you for incorporation by us into the Services or any Application delivered to you as part of the Services.
“Intellectual Property” means all intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation.
“Personnel” means, in relation to: (a) You, your employees, contractors and agents (other than us); (b) us, our employees, contractors and agents.
“Proposal” means the Kiwise Digital proposal signed by or on behalf of you, which specifies the details, parameters, specifications and requirements of the Services that we are to provide.
“Scope” means the project scoping document (if any) we prepare for you as part of defining your requirements and the details and specifications of the proposed Services.
“Services” means the application development, design, programing and consulting, training and related services as further detailed and described in a Terms of Reference and which may include one or more Applications.
“Terms of Reference” means: (a) the signed Proposal and any external document referred to in the Proposal; (b) the project Scope (if any) and any external document referred to in the project Scope; (c) the specifications for any Application, services or systems specified in the Proposal, Scope or subsequently agreed in writing; and (d) includes any Variation to that Terms of Reference.
“we” or “us” means Kiwise Advertising Ltd. T/a Kiwise Digital and “our” has a corresponding meaning.
“Variation” means a written variation to a Terms of Reference which records agreed changes to the Services, the Charges or some other part of the Agreement.
“Working Day” means any day of the week other than Saturdays, Sundays, national public holidays and Auckland Anniversary Day.
“you” means you, the customer under this Agreement and “your” has a corresponding meaning.