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Terms and Conditions

  1. “Agent” means Savvy Business Limited T/A Savvy Salon Marketing, its successors and assigns.
  2. “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
  3. “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using the Agent’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
  4. “Customer/Client” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting the Agent to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
    • if there is more than one Customer, is a reference to each Customer jointly and severally; and
    • if the Customer is a partnership, it shall bind each partner jointly and severally; and
    • if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
    • includes the Customer’s executors, administrators, successors and permitted assigns.
  5. “Price” means the price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between the Agent and the Customer in accordance with clause 5 of this Contract.
  6. “Prohibited Content” means any content on any advertising media that:
    • 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
    • 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
    • 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 Customer does not own the copyright).
  7. “Services” means all Services (which includes any advice or recommendations, technical service and support and training, etc.) and goods (which includes any files, designs, information, printed or virtual material, data or software, hardware, etc), supplied, consumed, created by the Agent in the course of it conducting, or supplying to the Customer, any Services
  8. “SNT” means any Social Network Tool being a social media platform and/or application which is accessible on the internet through the World Wide Web and which provides multimedia content via a graphical user interface (including, but not limited to Facebook, Twitter, LinkedIn, Pinterest, etc.).
  9. “Web Site” 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. The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for, or accepts Services provided by the Agent.
  2. In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
  3. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
  4. The Customer acknowledges and accepts that:
    • the supply of Services on credit shall not take effect until the Customer has completed a credit application with the Agent and it has been approved with a credit limit established for the account; and
    • in the event that the supply of Services requested exceeds the Customer’s credit limit and/or the account exceeds the payment terms, the Agent reserves the right to refuse delivery.
  5. Any advice, recommendations, information, assistance or service provided by the Agent in relation to Services provided is given in good faith, is based on information provided to the Agent, and the Agent’s own knowledge, and experience. Whilst it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Services, human error is possible under these circumstances, and the Agent shall make all effort to offer the best solution to the Customer.
  6. None of the Agent’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Agent in writing nor is the Agent bound by any such unauthorised statements.
  7. The Customer acknowledges and agrees that:
    • the Agent does not guarantee the SNT’s performance;
    • display on the SNT does not guarantee the availability of any particular goods/services; therefore, all orders placed through the Customer’s website as a result of any post or other communication posted shall be subject to confirmation of acceptance by the Customer;
    • the ability to post communications on a SNT may be unavailable from time to time due to regularly scheduled maintenance and/or upgrades by the SNT provider; and
    • there are inherent hazards in electronic distribution, and as such the Agent cannot warrant against delays or errors in posts appearing on any SNT.
  8. With changes in technology, changes in internet use and SNT visiting patterns, particular SNT availability/life cycle, the Agent may suggest changes to the original proposal and recommend an alternative service. Any such suggestions and/or recommendations shall be communicated to the Customer prior to implementation of any changes.
  9. The Customer acknowledges and accepts that:
    • all SNT used in the provision of the Services are subject to the terms and condition of service of the third-party provider and as such it is the Customer’s responsibility to be familiar with those terms and conditions; and
    • in the Agent’s use of the Customer’s SNT, the Agent is acting as the Customer’s agent and any liability arising from the use of the SNT account/s shall be the Customer’s responsibility.
  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.
  1. The Customer acknowledges and accepts that the Agent shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
    • resulting from an inadvertent mistake made by the Agent in the formation and/or administration of this Contract; and/or
    • contained in/omitted from any literature (hard copy and/or electronic) supplied by the Agent in respect of the Services.
  2. In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of the Agent; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
  1. The Customer shall give the Agent not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by the Agent as a result of the Customer’s failure to comply with this clause.
  1. At the Agent’s sole discretion the Price shall be either:
    • as indicated on any invoice provided by the Agent to the Customer; or
    • the Agent’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of twenty (20) days.
  2. The Agent reserves the right to change the Price:
    • if a variation to the plan of scheduled Services, or Customer specifications is requested (including, but not limited to, additional work required due to hidden or unidentifiable difficulties not evident prior to commencement of the Services, accessing the SNT, internet disruptions or limited access, etc.); or
    • as a result of increases beyond the Agent’s reasonable control in the cost of materials or labour (including, but not limited to, any variation as a result of fluctuations in currency exchange rates, increases to the Agent in the cost of taxes, levies, freight and insurance charges and increases in third-party network operator or supplier costs, etc.)
  3. Variations will be charged for on the basis of the Agent’s quotation, and will be detailed in writing, and shown as variations on the Agent’s invoice. The Customer shall be required to respond to any variation submitted by the Agent within ten (10) working days. Failure to do so will entitle the Agent to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
  4. At the Agent’s sole discretion a deposit may be required.
  5. Time for payment for the Services being of the essence, the Price will be payable by the Customer on the date/s determined by the Agent, which may be:
    • on completion of the Services;
    • by way of instalments/progress payments in accordance with the Agent’s payment schedule;
    • payment for approved Customers shall be due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
    • the date specified on any invoice or other form as being the date for payment; or
    • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Agent.
  6. Payment may be made by electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Customer and the Agent.
  7. The Agent may in its discretion allocate any payment received from the Customer towards any invoice that the Agent determines and may do so at the time of receipt or at any time afterwards.
  8. The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Agent nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute then the Customer must notify the Agent in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as the Agent investigates the dispute claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Agent placing the Customer’s account into default and subject to default interest in accordance with clause 1.
  9. Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Agent an amount equal to any GST the Agent must pay for any supply by the Agent under this or any other agreement for providing the Agent’s Services. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.
  10. The Customer acknowledges and agrees that the Customer’s obligations to the Agent for the provision of Services shall not cease until:
    • the Customer has paid the Agent all amounts owing for the particular Services; and
    • the Customer has met all other obligations due by the Customer to the Agent in respect of all Contracts between the Agent and the Customer.
  11. Receipt by the Agent 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 Agent’s ownership or rights in respect of the Services shall continue.
  1. Any time specified by the Agent for provision of the Services is an estimate only and the Agent will not be liable for any loss or damage incurred by the Customer 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 Agent is unable to provide the Services as agreed solely due to any action or inaction of the Customer, then the Agent shall be entitled to:
    • charge the Customer additionally for re-providing the Services at a later time and date; or
    • subject to clause 20, terminate the Contract.
  1. The Customer shall provide the Agent with data in the following formats:
    • for text, files shall be in an electronic format as standard text (.txt) or Work (.doc) on a USB, or via email;
    • for imaged, in an electronic format as prescribed by the Agent 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 Agent shall not be responsible for the quality of images scanned from printed materials; and
    • additional expenses may be charged to the Customer for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing or data entry services.
  2. The Customer acknowledges and agrees that the Agent shall not be held responsible or liable for:
    • anything related to the Web Site, Hosting Services or any other Services provided;
    • any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of the Agent;
    • 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 Agent. Whilst the Agent will endeavour to restore the Web Site, files or data (at the Customer’s cost), it is the sole responsibility of the Customer to back-up any data which they believe to be important, valuable, or irreplaceable prior to the Agent providing the Services. The Customer accepts full responsibility for the Customer’s software and data and the Agent is not required to advise or remind the Customer of appropriate backup procedures (unless included as part of the Services); and
    • any loss or damage to the Customer’s software or hardware caused by any ‘updates’ provided for that software.
  3. The Agent, 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 Customer or any person related to or dealing with the Customer out of, in connection with or reasonably incidental to the provision of the Services by the Agent to the Customer.
  4. The Services are provided on an “as is, as available” basis. the Agent specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.
  5. Public Access:
    • The Customer understands that by placing information on the Web Site, such information may be accessible to all internet users. The Agent does not (unless expressly requested by the Customer) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity. The Customer assumes full responsibility for their use of the Services, and it is the Customer’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 Agent, or on the internet generally.
  6. Defective Services:
    • The Customer shall inspect/review the Services on provision and shall within three (3) to seven (7) days of such time notify the Agent of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Customer shall afford the Agent an opportunity to inspect/review the Services within a reasonable time following such notification if the Customer believes the Services are defective in any way. If the Customer 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.
    • For defective Services, which the Agent has agreed in writing that the Customer is entitled to reject, the Agent’s liability is limited to either (at the Agent’s discretion) replacing the Services or rectifying the Services, provided that the Customer has complied with the provisions of sub-clause (a)
  1. The Services are provided on the basis of specifications, information and instructions provided by the Customer to the Agent (whether written or verbal). The Customer acknowledges that it is their responsibility to ensure that such are detailed sufficiently to satisfy the Agent’s requirements of interpretation and understanding, as once accepted by the Customer, the Agent’s quotation shall be deemed to interpret correctly those specifications, information and instructions. Therefore, the Agent shall not accept any liability for the supply of Services contrary to the Customer’s intention, or errors or omissions in the Services, due to insufficient or inadequate provision of detailed specifications, information and instructions by the Customer or oversight or misinterpretation thereof, and the Agent may charge the Customer additional costs incurred thereby in remedying the Services, and if reasonably practical, will notify the Customer of such costs before they are incurred and the Customer agrees to them.
  2. Where applicable and subject to clause 3, the Agent will provide the maintenance services in accordance with the maintenance terms set out in the Agent’s maintenance schedule.
  3. The Customer will procure all necessary authorisations, licences and consents to enable the Agent to have access to the Web Site in order to provide the maintenance services.
  4. The Customer shall be responsible for the payment of domain registration, hosting set-up and fees, advertising costs and any other third party costs for Services that the Agent manages on the Customer’s behalf.
  5. The Customer will, in addition to any other obligations expressed in this Contract, have the following responsibilities:
    • provision of all content (including data, logos, designs and/or graphic and related materials) to be incorporated into the SNT communications and/or Web Site within five (5) business days of being requested by the Agent; and
    • provision of any other information, ideas or suggestions which are to be expressly considered by the Agent in developing the SNT communications.
  6. The Agent will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the SNT communications which is attributable to:
    • incorrect information provided by the Customer, either pursuant to this clause or otherwise; or
    • failure by the Customer to provide relevant information, either pursuant to this clause or otherwise; or
    • any third-party products and/or services used by the Agent in placing the SNT communication.
  1. Upon acceptance of the Agent’s quotation, and in accordance with this Contract, the Agent will:
    • use its best endeavours to develop the Web Site in accordance with the Customer’s instructions and specifications; and
    • to the extent specified in the Customer’s instructions and specifications, negotiate and procure any third-party agreements on behalf of the Customer.
  2. The Customer acknowledges and accepts that the development of the Web Site by the Agent is based upon current technology platforms (e.g. internet browsers, mobile, android, etc.), and therefore the Agent cannot guarantee that Web Site 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.
  3. The Customer will ensure that the Agent is given such information and assistance (including access to computer systems and other locations to complete a branding project) as the Agent reasonably requires to enable the Agent to construct and maintain the Web Site.
  4. Subject to clause 1, the Customer 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.
  5. It shall be the Customer’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 Web Site shall be at the sole discretion of the Agent. In the event that additional Services are requested, or required (as per clause 2), in order to meet any specific requirements for mobile web browsers, after the Agent has commenced work on the Web Site, shall be treated as a variation to the Price, and a strict estimation of further work required shall be submitted to the Customer for approval before proceeding with the variation work.
  1. “Live Date” means the date in which the Agent provides the Hosting Services as per initial acceptance of the Agent’s quotation.
  2. Hosting Services shall only be used by the Customer 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).
  3. Hosting Services exclude domain registrations and SSL Certificates, and where the Customer is changing from another hosting provider the install and set-up of the Web Site on the Agent’s webservers, which shall be charged to the Customer additionally.
  4. The Agent will, at its sole cost and expense:
    • host the Web Site on the Agent’s webservers;
    • ensure that from the Live Date:
      • sufficient capacity is maintained on the Agent’s webserver to enable users access to the Web Site in a timely manner;
      • the Web Site is accessible to users in accordance with the agreed service levels (subject to reasonable downtime for server maintenance which has been notified to the Customer prior to the commencement of the downtime or (where applicable) maintenance in accordance with clause 2);
    • provide the Customer with reasonable access to the Web Site to perform maintenance services.
  5. The Agent will not:
    • alter or amend, or permit any person to alter or amend the Web Site without the written consent of the Customer;
    • post or display on the Web Site any advertisement, sponsorship or promotion without the written consent of the Customer;
    • use any user data for marketing, referral or other purposes except as expressly authorised by this Contract;
    • sub-licence, rent, time-share, lease, lend or grant any rights to use the Web Site; or
    • assign, transfer or authorise anyone else to exercise the rights in any licence granted pursuant to this Contract.
  6. The Agent will make best efforts to ensure that the Customer receives continual and uninterrupted Services (including network or hosting servers) during the term of this Contract, however the Agent 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 Agent. In no event though, shall the Agent be liable to the Customer 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 Agent 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.
  7. The Agent may, at their sole discretion, limit or deny access to the Services is, in the judgement of the Agent, 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.
  8. Customer’s Obligations:
    • The Customer will, at its sole cost and expense:
      • subject to any agreement with the Agent for Web Site Development, develop and maintain the Web Site;
      • provide the content to the Agent, in such form as reasonably prescribed by the Agent from time to time, and hereby grants the Agent a non-exclusive, worldwide, irrevocable licence to use such content for the purposes of hosting the Web Site;
      • do all things reasonably necessary to enable the Agent to host the Web Site on the Agent’s webserver;
      • change the type of hosting account used if that account is deemed by the Agent to be unacceptable because of poor service, lack of bandwidth or in any other way insufficient to support the Web Site;
      • is responsible for any fees payable and due to previous hosting organisations engaged by the Customer;
      • ensure that content supplied to the Agent 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.
    • The Customer will not:
      • logon to an account that the Customer is not authorised to access;
      • access data or take any action to obtain services not intended for the Customer;
      • attempt to probe, scan or test the vulnerability of any system, subsystem or network;
      • tamper, hack, modify or otherwise corrupt or breach security or authenticity measures without proper authorisation;
      • transmit any material outlined in clause 8(a)(vi);
      • do anything that prevents or hinders the Agent from providing Hosting Services to any other person.
    • The Customer 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.
  9. Network Traffic:
    • Network traffic shall be measured by the Agent and may include all forms of traffic to and from the Web Site. Domestic data transfer is provided free of charge, but the Agent reserve the right to suspend Hosting Services (at any time and without notice to the Customer) for what it deems to be excessive traffic usage.
  10. Limitation of Liability for Hosting Services
    • in consideration of clause 3 in the event the Hosting Services provided to the Customer are disrupted or malfunction for any reason, the Agent’s liability shall be limited to damages which under no circumstances shall exceed the amount due and payable by the Customer to the Agent for the Hosting Services during the period of disruption or malfunction.
  1. Although the Agent shall use their knowledge and experience to gain the best results possible, the Agent gives no guarantee of the quality of visitor or the position / page rank or volume of visits to the Web Site, or warranty that the Web Site will be effective in promoting the Customer’s business or result in any increase in sales of the products/services of the Customer. Periodic reporting will be sent to the Customer’s nominated email address, at the sole discretion of the Agent.
  2. The Customer accepts that a SEO may change their policies and systems at any time and such, the Agent shall not be held liable for any fluctuations, changes or removal of your listing from a SEO.
  1. Where the Agent is register a domain name on the Customer’s behalf, the Agent cannot guarantee the availability of the domain name, nor assume a successful registration or such a name.
  1. The Customer and the Agent shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities in the country where the Services are being provided or as per guidelines on any SNT. Furthermore, the Agent warrants that any Services and/or content produced are fully compliant with said statutes, regulations and bylaws and SNT requirements.
  2. The Customer shall obtain (at the expense of the Customer) all licenses and/or approvals pertaining to materials to be used in the communication copy and where required, any release documentation for the use of any digital imagery which may include people.
  1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
  2. Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all the Customer’s present and after acquired property being a charge, including anything in respect of which the Customer has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Customer to the Agent for Services – that have previously been provided and that will be provided in the future by the Agent to the Customer.
  3. The Customer undertakes to:
    • 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 Agent may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
    • indemnify, and upon demand reimburse, the Agent for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Services charged thereby;
    • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Services or the proceeds of such Services in favour of a third party without the prior written consent of the Agent.
  4. The Agent and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
  5. The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
  6. Unless otherwise agreed to in writing by the Agent, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
  7. The Customer shall unconditionally ratify any actions taken by the Agent under clauses 1 to 14.6.
  8. Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
  1. In consideration of the Agent agreeing to supply Services, the Customer 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 Customer either now or in the future, and the Customer grants a security interest in all of its present and after-acquired property, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
  2. The Customer indemnifies the Agent from and against all the Agent’s costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising the Agent’s rights under this clause.
  3. The Customer irrevocably appoints the Agent and each director of the Agent as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Customer’s behalf.
  1. If the Customer is acquiring Services for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Services by the Agent to the Customer.
  1. Where the Agent has designed, drawn or developed Services (including the Web Site) for the Customer, the Agent retains full intellectual property ownership of the Agent’s proprietary software, design, code, materials, source code of all images and design, routines and Services, including the copyright in any designs and drawings and documents or discovered during the provision of the Services, and the Agent hereby grants to the Customer an irrevocable, non-exclusive and non-transferable worldwide licence to use the Agent’s materials, routines and Services solely in relation to the operation of the Customer’s own presentation and functioning of the Web Site, conditional upon the Customer fulfilling their obligations under this Contract (including, but not limited to, the full payment of the Price). Furthermore, the Customer shall not have any right to use open source software or the Agent’s intellectual property for any other purpose.
  2. Ownership of Paid Ads Strategies, Research and Related Materials
    Notwithstanding any other provision of this Contract, the Agent shall retain full and exclusive ownership of all strategies, methodologies, ad copy, audience insights, keyword research, competition analysis, and related materials developed or employed in connection with paid advertising services provided to the Customer. This includes, but is not limited to, all plans, strategies, copywriting, audience profiling and segmentation, keyword research, targeting strategies, competitor research and market analysis, and creative materials used or created for paid advertising campaigns, whether these are executed on social media platforms, search engines, or any other digital or traditional advertising mediums.
    Upon the termination or conclusion of this Contract, the Agent’s ownership of such paid ads strategies, methodologies, ad copy, audience insights, keyword research, targeting strategies, competitor research and market analysis, creative materials and related materials shall persist, and the Customer shall have no right or claim to these intellectual properties. The Agent reserves the right to reuse, modify, or repurpose any such strategies, ad copy, research findings, or materials in future projects or with other clients, without any obligation or liability to the Customer.
    The Customer acknowledges that the paid ads strategies, methodologies, ad copy, audience insights, keyword research, targeting strategies, competitor research and market analysis, creative materials and related materials  are proprietary to the Agent and constitute trade secrets of the Agent. The Customer agrees to maintain the confidentiality of such materials during and after the term of this Contract, in accordance with the confidentiality obligations set forth herein.
  3. Post-Contract Access for IP Management
    To facilitate the effective management and protection of the Agent’s intellectual property as outlined in Clause 2, the Customer agrees to grant the Agent limited, temporary access to the Customer’s relevant digital platforms and accounts. This access shall commence immediately upon the termination or conclusion of this Contract and shall be maintained for a period not exceeding 48 hours. The purpose of this access is solely for removing, modifying, or managing the intellectual property belonging to the Agent, including but not limited to paid ads strategies, ad copy, audience insights, keyword research, and competition analysis.
    The Customer agrees that no third party, including but not limited to other contractors, consultants, or affiliates, will be granted access to those areas of the Customer’s digital platforms and accounts where the Agent’s intellectual property, as outlined in Clause 2, is used or stored, at any time before the termination or conclusion of the contract or during this 48 hour period. This restriction is intended to protect the Agent’s intellectual property from unauthorized use or alteration.
    Should unauthorized third-party access occur before the termination or conclusion of the contract or during the 48-hour post-contract period, the Customer will be held accountable for any infringement of the Agent’s intellectual property rights, with potential legal and financial repercussions as explicitly detailed in the Contract’s indemnification clauses.
    Upon completion of the IP management activities, or at the end of the 48-hour access period, whichever comes first, the Agent shall provide a formal notification of completion to the Customer via email. This notification will serve as the official trigger for the termination of the Agent’s access rights to the Customer’s platforms and accounts.
  4. The Agent shall retain property ownership of:
    • any designs not approved by the Customer, and later offer the Customer the right to purchase a licence to use such non-approved designs; and
    • all photography and video audio filmed and/or created by and for the Agent.
  5. The Customer warrants that all designs, specifications or instructions given to the Agent will not cause the Agent to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Agent against any action taken by a third party against the Agent in respect of any such infringement.
  6. The Customer hereby authorises the Agent to utilise images of the Services created by the Agent in advertising, marketing, or competition material by the Agent including, but not limited to:
    • the Customer permitting the Agent to place a small credit on printed material, exhibition displays, advertisement and/or link to the Agent’s own web site on the Customer’s Web Site, which shall usually be in the form of a small logo or line of text placed towards the bottom of the page;
    • allowing the Agent to place web sites and other designs, along with a link to the Customer’s Web Site on the Agent’s own web site for demonstration purposes and to use any designs in the Agent’s own publicity
  1. Each party agrees to treat all information and ideas communicated by the other party confidential and each agrees not to divulge it to any third party, without the other party’s written consent.
  2. The quotation and the information contained in the quotation or any other schedule provided by the Agent to the Customer is done so on a “commercial in confidence” basis thereby, the Customer agrees not to reproduce or provide said information in any manner to any third party without the prior written approval of the Agent.
  3. Either party must promptly return or destroy all Confidential Information of the other party in its possession or control at the other party’s request, unless required by law to retain it.
  4. Confidential Information excludes information:
    • generally available in the public domain (without unauthorised disclosure under this contract); or
    • required by law, any stock exchange or regulatory body to be disclosed; or
    • received from a third party entitled to disclose it; or
    • that is independently developed.
  5. The obligations of this clause 18 shall survive termination or cancellation of this Contract.
  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 Agent’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
  2. If the Customer owes the Agent any money the Customer shall indemnify the Agent from and against all costs and disbursements incurred by the Agent in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Agent’s collection agency costs, and bank dishonour fees).
  3. Further to any other rights or remedies the Agent may have under this Contract, if a Customer has made payment to the Agent, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Agent under this clause 19, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
  4. Without prejudice to the Agent’s other remedies at law the Agent shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Agent shall, whether or not due for payment, become immediately payable if:
    • any money payable to the Agent becomes overdue, or in the Agent’s opinion the Customer will be unable to make a payment when it falls due;
    • the Customer has exceeded any applicable credit limit provided by the Agent;
    • the Customer 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
    • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

  5. Director’s Personal Guarantee

    1. Guarantee: In consideration of the Agent entering into this Agreement with the Customer/Client (the “Company/Trust”), the director(s) of the Company/Trust (the “Guarantor(s)”) unconditionally and irrevocably guarantee the full and punctual payment and satisfaction of every debt and liability of the Company/Trust to the Agent and the performance and discharge of all the Company’s obligations under this Agreement. This guarantee remains in force until all obligations have been fully satisfied.
    2. Joint and Several Liability: If more than one person signs this guarantee, their obligations under this guarantee are joint and several. This means each Guarantor is individually responsible for the entire amount of the obligations guaranteed, and the Agent can enforce this guarantee against any one or more of the Guarantors without first having to seek recourse from the Company/Trust or any other Guarantor.
    3. Continuing Guarantee: This is a continuing guarantee and will extend to the ultimate balance of debts, obligations, and liabilities of the Company/Trust to the Agent, regardless of any intermediate payment or discharge in full or in part.
    4. Enforcement: The Agent is not obliged to exhaust any remedies it may have against the Company/Trust before enforcing this guarantee against the Guarantor(s).
    5. Indemnity: In addition to the guarantee, the Guarantor(s) indemnify the Agent against any loss or expense incurred by the Agent as a result of the Company’s/Trusts failure to comply with the terms of this Agreement.
    6. Binding Effect: This guarantee binds the Guarantor(s) and their personal representatives and successors and is for the benefit of the Agent and its successors and assigns.
    7. Governing Law: This guarantee will be governed by and construed in accordance with the laws of New Zealand and Australia, including all states and territories.
  1. Without prejudice to any other remedies the Agent may have, if at any time the Customer is in breach of any obligation (including those relating to payment, whether or not the payment is due to the Agent) the Agent may suspend or terminate the provision of Services to the Customer, (this includes but is not restricted to, withholding domain codes, passwords and Goods, and/or blocking or restricting public and Customer access to the Web Site, or removing the Web Site from the web completely) and any of its other obligations under the terms and conditions. The Agent will not be liable to the Customer for any loss or damage the Customer suffers because the Agent has exercised its rights under this clause.
  2. In the event that the Customer grants access to any strategies, email marketing, organic or paid advertising campaigns, and commercial in confidence documents, including documents, which are part of the Services provided under this Contract, to a third-party agency or service provider without the express written consent of the Agent, such action will be considered a potential breach or actual breach of the Agent’s intellectual property rights. Upon evidence or suspicion of such breach, the Agent reserves the right to terminate the Services and this Contract with immediate effect. The Agent shall provide notice of termination to the Customer in writing, via fax, or email. Following termination for this reason, the Customer shall be liable for any and all Services rendered up to the point of termination, and such charges shall be payable in full within fourteen (14) days from the date of the submitted invoice. Furthermore, the Customer acknowledges that any unauthorized sharing of intellectual property, strategies, methodologies, or other proprietary information contained within the Services with third-party entities constitutes a serious breach of this Contract and may result in further legal action to protect the Agent’s intellectual property rights.
  3. Notwithstanding clause 4 either party may, cancel these terms and conditions or cancel provision of the Services:
    • if a Contract term is specified, at any time after the end of the Contract term by giving thirty (30) days’ notice to the other party; and
    • failure to give notice of intention to cancel at least thirty (30) days prior to the expiration date of the Contract term, the Contract term shall automatically renew on a monthly basis, unless cancelled by way of the Customer providing the Agent with thirty (30) days’ notice.
    • This 30-day notice requirement also applies to any month-by-month arrangements that occur after the expiration of the initial contract term.
  4. In the event of the premature termination of the fixed term Contract (including by notification from the Customer, (at least thirty (30) days prior to the expiration date of the Contract term), or as a result of default, but excluding any breach or termination of this Contract by the Agent):
    • the Customer shall be responsible for the immediate payment of the following sums:
      • all monies due and payable up to the date of termination; and
      • all other sums owing by the Customer under this Contract (or any other Contract with the Customer) as a result of the default and termination of this Contract, including consequential damages and any and all loss of profits, costs, charges and expenses incurred by the Agent in connection with (and resulting from) the premature termination of this Contract, which shall be calculated at a minimum of thirty percent (30%) of the remainder of the Price under this Contract where a fixed term applies.
  5. Where the Customer cancels an order:
    • the initial notification may be by telephone or email but must be confirmed in writing within fourteen (14) days;
    • the Customer shall be invoiced for all work completed over and above the deposit as per clause 4;
    • where failure clause 4(a) occurs, the Customer shall be required to pay the full quoted cost of the Services.
  6. Should the Customer, for any reason, cause the Services to be delayed for more than three (3) months after the acceptance date, this Contract will be terminated by the Agent (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.
  7. If the Customer fails to comply with any of the provisions of this Contract and does not rectify such non-compliance within seven (7) days of the Agent giving notice either in writing, via fax or email, then the Agent may without prejudice to any other rights or remedies, and without being liable to the Customer for any loss or damage that may result, give notice to the Customer terminating their right to use the Web Site, Software and Services. Upon termination of the Contract, the Customer shall lose all right to use the Web Site and products.
  8. In the event the Services are terminated under this clause 20, 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.
  9. In accordance with the 30-day notice period required for cancellation or termination of services as stipulated in this Contract, the Customer acknowledges and agrees that this notice period applies regardless of whether the contract term has ended. This notice period covers all work that has already been initiated by the Agent, including but not limited to research, targeting, and any other preparatory activities. The Customer understands that the Agent operates on a three-week advance working period, and as such, costs incurred during this period are non-refundable and will be billed accordingly.
    Additionally, during the unwinding of the contract, the Agent will undertake the necessary steps to remove the Customer’s intellectual property from the Agent’s systems and processes. This includes the removal of the Customer’s data and materials from the Agent’s project management systems. It is understood that during this unwinding period, the Agent’s involvement will be limited to the monitoring of existing campaigns only. No adjustments, creation of new content, or initiation of new campaigns will be made during this time, ensuring an orderly conclusion of the services.
  1. All emails, documents, images, or other recorded information held or used by the Agent is “Personal Information” as defined and referred to in clause 3 and therefore considered confidential. The Agent acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in the Act and any statutory requirements where relevant in a European Economic Area “EEA” under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Agent acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by the Agent that may result in serious harm to the Customer, the Agent will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
  2. Notwithstanding clause 1, privacy limitations will extend to the Agent in respect of Cookies where the Customer utilises the Agent’s website to make enquiries. The Agent agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
    • IP address, browser, email client type and other similar details;
    • tracking website usage and traffic; and
    • reports are available to the Agent when the Agent sends an email to the Customer, so the Agent may collect and review that information (“collectively Personal Information”)
    • If the Customer consents to the Agent’s use of Cookies on the Agent’s website and later wishes to withdraw that consent, the Customer may manage and control the Agent’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the website.
  3. The Customer authorises the Agent or the Agent’s agent to:
    • access, collect, retain and use any information about the Customer;
      • including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice for the purpose of assessing the Customer’s creditworthiness; or
      • for the purpose of marketing products and services to the Customer.
    • disclose information about the Customer, whether collected by the Agent from the Customer directly or obtained by the Agent 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 Customer.
  4. Where the Customer is an individual the authorities under clause 3 are authorities or consents for the purposes of the Privacy Act 2020.
  5. The Customer shall have the right to request (by e-mail) from the Agent, a copy of the Personal Information about the Customer retained by the Agent and the right to request that the Agent correct any incorrect Personal Information.
  6. The Agent will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
  7. The Customer can make a privacy complaint by contacting the Agent via e-mail. The Agent will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.
  1. Any written notice given under this Contract shall be deemed to have been given and received:
    • by handing the notice to the other party, in person;
    • by leaving it at the address of the other party as stated in this Contract;
    • by sending it by registered post to the address of the other party as stated in this Contract;
    • 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;
    • if sent by email to the other party’s last known email address.
  2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
  1. If the Customer 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 Agent may have notice of the Trust, the Customer covenants with the Agent as follows:
    • the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
    • the Customer 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 Customer against the Trust or the trust fund. The Customer 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;
    • the Customer will not without consent in writing of the Agent (the Agent will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
      • the removal, replacement or retirement of the Customer as trustee of the Trust;
      • any alteration to or variation of the terms of the Trust;
      • any advancement or distribution of capital of the Trust; or
      • any resettlement of the trust property.
  1. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
  2. These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Auckland Courts of New Zealand.
  3. Subject to the CGA, the Agent shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Agent of these terms and conditions (alternatively the Agent’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
  4. The Agent may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
  5. The Customer cannot licence or assign without the written approval of the Agent.
  6. The Agent 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 Customer agrees and understands that they have no authority to give any instruction to any of the Agent’s sub-contractors without the authority of the Agent.
  7. The Customer agrees that the Agent may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for the Agent to provide Services to the Customer.
  8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Customer to make a payment to the Agent.
  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.
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