Definitions

    1. “idDesign (Web Design Auckland)” means idDesign Limited, its successors and assigns or any person acting on behalf of and with the authority of idDesign (Web Design Auckland) Limited.
    2. “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting idDesign (Web Design Auckland) to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
      1. if there is more than one Client, is a reference to each Client jointly and severally; and
      2. if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
      3. includes the Client’s executors, administrators, successors and permitted assigns.
    3. “Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by idDesign (Web Design Auckland) in the course of it conducting, or supplying to the Client, any Services.
    4. “Services” means all Services supplied by idDesign (Web Design Auckland) to the Client at the Client’s request from time to time.
    1. “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).
    1. “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.
    2. “Prohibited Content” means any content on any advertising media that:
      1. 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
      2. contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
      3. is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights (including, but not limited to, the distribution of music files or any other material in which the Client does not own the copyright).
    3. “Price” means the price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between idDesign (Web Design Auckland) and the Client in accordance with clause 5 of this contract.
  • Acceptance
    1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by idDesign (Web Design Auckland).
    2. These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or contract between the Client and idDesign (Web Design Auckland).
    3. Any advice, recommendations, information, assistance or service provided by idDesign (Web Design Auckland) in relation to Services provided is given in good faith, is based on information provided to idDesign (Web Design Auckland), and idDesign (Web Design Auckland)’s own knowledge, and experience. Whilst it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services, human error is possible under these circumstances, and idDesign (Web Design Auckland) shall make all effort to offer the best solution to the Client.
    4. The Client acknowledges and agrees that any expected or estimated outcomes concerning increased sales or market share or penetration achieved by the Client derived from marketing activities undertaking by idDesign (Web Design Auckland), expressed in consultation or estimates, are speculative and in no way constitute a guarantee. In addition, where the Client makes changes to their website, social media pages or advertising campaign information without prior discussion with idDesign (Web Design Auckland), any such changes may negatively affect any costs and results.
    5. The Client acknowledges and agrees that:
      1. idDesign (Web Design Auckland) does not guarantee the SNT’s performance;
      2. display on the SNT does not guarantee the availability of any particular goods; therefore, all orders placed through the Client’s website as a result of any post or other communication posted shall be subject to confirmation of acceptance by the Client;
      3. the ability to post communications on a SNT may be unavailable from time to time due regularly scheduled maintenance and/or upgrades by the SNT provider;
      4. there are inherent hazards in electronic distribution, and as such idDesign (Web Design Auckland) cannot warrant against delays or errors in posts appearing on any SNT.
    6. With changes in technology, changes in internet use and SNT visiting patterns, particular SNT availability/life cycle, idDesign (Web Design Auckland) may suggest changes to the original proposal and recommend an alternative service. Any such suggestions and/or recommendations shall be communication to the Client prior to implementation of any changes.
    7. The Client acknowledges that:
      1. all SNT used in the provision of the Services are subject to the terms and condition of service of the third party provider and as such it is the Client’s responsibility to be familiar with those terms and conditions; and
      2. in idDesign (Web Design Auckland)’s use of the Client’s SNT, idDesign (Web Design Auckland) is acting as the Client’s agent and any liability arising from the use of the SNT account/s shall be the Client’s responsibility.
    8. The Client accepts that is a choice of design is presented, only one solution is deemed to be given by idDesign (Web Design Auckland) as fulfilling the contract. All other designs shall remain the property of idDesign (Web Design Auckland), unless otherwise agreed in writing.
    9. The Client accepts and acknowledges that copyright is retained by idDesign (Web Design Auckland) on all design work and other Services provided by idDesign (Web Design Auckland) including text, images, ideas, models, visuals and illustrations unless specifically released in writing and after all costs have been settled.
    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.
  • Errors and Omissions
    1. The Client acknowledges and accepts that idDesign (Web Design Auckland) shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      1. resulting from an inadvertent mistake made by idDesign (Web Design Auckland) in the formation and/or administration of this contract; and/or
      2. contained in/omitted from any literature (hard copy and/or electronic) supplied by idDesign (Web Design Auckland) in respect of the Services.
    2. In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of idDesign (Web Design Auckland); the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
  • Change in Control
    1. The Client shall give idDesign (Web Design Auckland) not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by idDesign (Web Design Auckland) as a result of the Client’s failure to comply with this clause.
  • Price and Payment
    1. At idDesign (Web Design Auckland)’s sole discretion the Price shall be either:
      1. as indicated on any invoice provided by idDesign (Web Design Auckland) to the Client; or
      2. idDesign (Web Design Auckland)’s quoted price (subject to clause 5.2) which will be valid for the period stated in the proposal, quotation or otherwise for a period of thirty (30) days.
    2. Additional and/or Varied Services:
      1. idDesign (Web Design Auckland) agrees that there will be no charge in the preparation of the initial quotation (however any site visits may be chargeable), which may include Client discussions, project scoping, research, testing and business analysis, etc. However, in some instances the aforementioned services may be charged to the Client additionally (at idDesign (Web Design Auckland)’s sole discretion). In the event the Client requires proofs, mock-ups, layouts, samples or dummies or printed, typewritten or other good copy and/or edits, this shall be invoiced at idDesign (Web Design Auckland)’s hourly rate unless specified otherwise in the initial quotation, therefore, this variation shall be detailed on the invoice as per sub-clause (vi);
        1. all work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client;
        2. any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice;
        3. unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at the Client’s request for the job;
        4. where the performance of any contract with the Client requires idDesign (Web Design Auckland) to obtain products and/or services from a third party, the contract between idDesign (Web Design Auckland) and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to idDesign (Web Design Auckland), and the Client shall be liable for the cost in full including idDesign (Web Design Auckland)’s margin of such products and/or services;
        5. whilst every effort will be taken by idDesign (Web Design Auckland) to match virtual colours with physical colours, idDesign (Web Design Auckland) will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client’s computer and/or the final product. Should a physical sample be required this will be provided on request by the Client and will be charged for as an extra and charged contra against final invoice;
        6. idDesign (Web Design Auckland) reserves the right to amend the Price where there is any variation to the accepted plan of scheduled Services, or instructions/specifications, which will be charged for on the basis of idDesign (Web Design Auckland)’s standard hourly rates (and double such rate for any Services provided outside idDesign (Web Design Auckland)’s normal business hours) and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion;
        7. the Client acknowledges that all services and support for email are chargeable in addition to the Price;
        8. idDesign (Web Design Auckland) shall not be held responsible for any amendments made by any third party before or after a design is published;
        9. limitations to accessing the SNT, internet disruptions or limited access, or as a result of any increase to idDesign (Web Design Auckland) in the cost of third party services; and
        10. any variation due to a result of any increase to idDesign (Web Design Auckland) in the cost of materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) and labour) will be charged for on the basis of idDesign (Web Design Auckland)’s quotation and will be shown as variations on the invoice.
    3. Variations will be charged for on the basis of idDesign (Web Design Auckland)’s quotation, and will be detailed in writing, and shown as variations on idDesign (Web Design Auckland)’s invoice. The Client shall be required to respond to any variation submitted by idDesign (Web Design Auckland) within ten (10) working days. Failure to do so will entitle idDesign (Web Design Auckland) 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 idDesign (Web Design Auckland)’s sole discretion a non-refundable deposit of fifty percent (50%) of the Price may be required.
    5. Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by idDesign (Web Design Auckland), which may be:
      1. before delivery of the Services;
      2. payment for approved Clients shall be due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
      3. the date specified on any invoice or other form as being the date for payment; or
      4. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by idDesign (Web Design Auckland).
    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 Client and idDesign (Web Design Auckland).
    7. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by idDesign (Web Design Auckland) nor to withhold payment of any invoice because part of that invoice is in dispute.
    8. Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to idDesign (Web Design Auckland) an amount equal to any GST idDesign (Web Design Auckland) must pay for any supply by idDesign (Web Design Auckland) under this or any other contract for providing idDesign (Web Design Auckland)’s Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
  • Provision of Services
    1. Any time specified by idDesign (Web Design Auckland) for provision of the Services is an estimate only and idDesign (Web Design Auckland) will not be liable for any loss or damage incurred by the Client as a result of provision being late. However, both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that idDesign (Web Design Auckland) is unable to provide the Services as agreed solely due to any action or inaction of the Client, then idDesign (Web Design Auckland) shall be entitled to:
      1. charge the Client additionally for re-providing the Services at a later time and date; or
      2. subject to clause 21.4, terminate the agreement.
  • Design Services for Branding
    1. idDesign (Web Design Auckland) shall be under no liability whatsoever to the Client for any variation (beyond the reasonable control of idDesign (Web Design Auckland)) in colours between the approved prototype and the finished goods.
    2. When quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good copy, any extra work or cost caused by any variation by the Client of his original instructions or by the manuscript copy being, in idDesign (Web Design Auckland)’s opinion, poorly prepared or by the Client’s requirements being different from those originally submitted or described, then the cost of such variations may be charged to the Client and shown as extras on the invoice.
    3. All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.
    4. Any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice.
    5. Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at its request for the Services.
    6. Where the performance of any contract with the Client requires idDesign (Web Design Auckland) to obtain goods or services from a third party, the contract between idDesign (Web Design Auckland) and the Client shall incorporate and shall be subject to the conditions of supply of such goods and services to idDesign (Web Design Auckland), and the Client shall be liable for the cost in full including idDesign (Web Design Auckland)’s margin of such goods or services.
    7. Whilst every care is taken by idDesign (Web Design Auckland) to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading of the Goods. idDesign (Web Design Auckland) shall be under no liability whatever for any errors not corrected by the Client in the final proof reading. Should the Client’s alterations require additional proofs this shall be invoiced as an extra.
    8. idDesign (Web Design Auckland) is under no obligation to provide samples of good ordered other than by virtual (computerised) sample. Whilst every effort will be taken by idDesign (Web Design Auckland) to match virtual colours with physical colours, idDesign (Web Design Auckland) will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client’s computer and/or the final product. Should a physical sample be required this will be provided on request by the Client and will be charged for as an extra including return freight, the charge will be contra against final invoice.
    9. While every effort will be taken by idDesign (Web Design Auckland) to match Pantone Matching System (PMS) or other industry system colours, idDesign (Web Design Auckland) will take no responsibility for any variation due to substrates, half tones and/or detailed graphics between sale samples (including but not limited to virtual or physical samples) and the final product.
    10. In the case of property and materials left with idDesign (Web Design Auckland) without specific instructions, idDesign (Web Design Auckland) shall be free to dispose of them at the send of twelve (12) months after his receiving them and to accept and retain any proceeds gained from such disposal to cover idDesign (Web Design Auckland)’s cost in holding and handling such items.
    11. Any change or correction to any film, bromides, artwork and/or printing surface supplied by the Client which is deemed necessary by idDesign (Web Design Auckland) to ensure correctly finished work shall be invoiced as an extra.
    12. Proof Reading:
      1. whilst every care is taken by idDesign (Web Design Auckland) to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading of the goods.
      2. idDesign (Web Design Auckland) will make one (1) set of minor changes at no extra cost within fourteen (14) days of the review period. Minor changes include small text changes and small adjustments to placement of items on the artwork. It does not include changes to images, colour schemes, or any navigation features. Any minor changes need to be notified to idDesign (Web Design Auckland) via email.
      3. should the Client fail to notify idDesign (Web Design Auckland) in writing of any amendments within fourteen (14) days from the commencement of the review period, idDesign (Web Design Auckland) shall deem that the original draft as being acceptable.
      4. idDesign (Web Design Auckland) shall accept no liability whatsoever for any errors not picked up and/or corrected by the Client in the final proof reading.
  • Design Concepts and Projects
    1. idDesign (Web Design Auckland) shall provide a maximum of three (3) designs will be offered as initial concepts for branding a business for the Client’s consideration. Additional designs can be offered by idDesign (Web Design Auckland) which would be at an extra cost to the Client.
    2. Any indication provided by idDesign (Web Design Auckland) as to the duration of the project shall be considered as an estimate and shall commence from the date that cleared deposit funds are received by idDesign (Web Design Auckland).
    3. idDesign (Web Design Auckland) shall not be responsible for any project over-runs regardless of the cause.
    4. idDesign (Web Design Auckland) considers that the design project is completed upon receipt of the Client’s signed estimate or quotation form. Any associated services such as printing, display panel production, film work, Web Site design and development, publishing, etc. to be provided by idDesign (Web Design Auckland) or contracted on the Client’s behalf shall constitute a separate project and can be treated as a separate charge.
  • Web Site Development
    1. idDesign (Web Design Auckland)’s Responsibilities:
      1. upon acceptance of idDesign (Web Design Auckland)’s quotation, and in accordance with this agreement, idDesign (Web Design Auckland) will:
        1. use its best endeavours to develop the Web Site in accordance with the Client’s instructions and specifications; and
        2. to the extent specified in the Client’s instructions and specifications, negotiate and procure any third-party agreements on behalf of the Client.
      2. the Client acknowledges that the development of the Web Site by idDesign (Web Design Auckland) is based upon current technology platforms (e.g. internet browsers, mobile, android, etc.), and therefore idDesign (Web Design Auckland) 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.
    2. Client’s Responsibilities:
      1. the Client will, in addition to any other obligations expressed in this agreement, have the following responsibilities:
        1. provision of all content (including data, logos, designs and/or graphic and related materials) to be incorporated into the Web Site;
        2. provision of any other information, ideas or suggestions which are to be expressly considered by idDesign (Web Design Auckland) in developing the Web Site.
      2. the Client will ensure that idDesign (Web Design Auckland) is given such information and assistance (including access to computer systems and other locations to complete a branding project) as idDesign (Web Design Auckland) reasonably requires to enable idDesign (Web Design Auckland) to construct and maintain the Web Site.
      3. subject to clause 21.1 the Client shall supply access to any computer system, usernames and passwords required to remove data and/or sites for failure to comply with these terms and conditions.
      4. it shall be the Client’s responsibility to ensure that any specific requirements they may have for mobile web browsers is included in the brief, as, unless otherwise specified therein, the choice of web browsers and technology used in the development of the Web Site shall be at the sole discretion of idDesign (Web Design Auckland). In the event that additional Services are requested, or required (as per clause 9.1(b)), in order to meet any specific requirements for mobile web browsers, after idDesign (Web Design Auckland) has commenced work on the Web Site, shall be treated as a variation to the Charges, and a strict estimation of further work required shall be submitted to the Client for approval before proceeding with the variation work.
      5. idDesign (Web Design Auckland) will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Web Site which is attributable to:
        1. incorrect information provided by the Client, either pursuant to this clause or otherwise; or
        2. failure by the Client to provide relevant information, either pursuant to this clause or otherwise; or
        3. any third-party products and/or services used by idDesign (Web Design Auckland) in creation of the Web Site.
    3. Proof Reading and Checking Functionality:
      1. whilst every care is taken by idDesign (Web Design Auckland) to carry out the instructions of the Client, it is the Client’s responsibility to undertake proof reading and checking functionality and provide feedback (where necessary) via Dropbox which provides regular, possibly daily contact. idDesign (Web Design Auckland) shall be under no liability whatever for any errors not corrected by the Client during the proof reading stages, and:
        1. should the Client’s alterations require additional proofs this shall be invoiced as an extra;
        2. if, at any stage the Client is unhappy with the direction the Services are taking, the Client can cancel this agreement and pay idDesign (Web Design Auckland) for work completed up to that date of cancellation.
      2. when style, type or layout is left to idDesign (Web Design Auckland)’s judgement and the Client makes further alterations, this will be invoiced as an extra.
      3. idDesign (Web Design Auckland) will make one (1) set of minor changes at no extra cost within fourteen (14) days of the review period. Minor changes include small text changes and small adjustments to placement of items on the artwork. It does not include changes to images, colour schemes, or any navigation features. Any minor changes need to be notified to idDesign (Web Design Auckland) via email.
      4. should the Client fail to notify idDesign (Web Design Auckland) in writing of any amendments within fourteen (14) days from the commencement of the review period, idDesign (Web Design Auckland) shall deem that the original draft as being acceptable.
    4. Client’s Property and Materials:
      1. graphic files should be supplied in an editable, vector digital format and photographs in a high resolution digital format. If the Client chooses to purchase stock photographs, idDesign (Web Design Auckland) can suggest stock libraries.
      2. in the case of property and materials left with idDesign (Web Design Auckland) without specific instructions, idDesign (Web Design Auckland) shall be free to dispose of them at the end of twelve (12) months after their receiving them and to accept and retain the proceeds, if any, to cover their own costs in holding and handling them.
      3. where materials or equipment are supplied by the Client, idDesign (Web Design Auckland) accepts no responsibility for imperfect work caused by defects in or unsuitability of such materials or equipment.
    5. Maintenance:
      1. subject to sub-clause (b), idDesign (Web Design Auckland) will provide the Maintenance Services in accordance with the maintenance terms set out in idDesign (Web Design Auckland)’s maintenance schedule.
      2. the Client will procure all necessary authorisations, licences and consents to enable idDesign (Web Design Auckland) to have access to the Web Site in order to provide the Maintenance Services.
  • Search Engine Optimisation (SEO)
    1. Although idDesign (Web Design Auckland) shall use their knowledge and experience to gain the best results possible, idDesign (Web Design Auckland) 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 Client’s business or result in any increase in sales of the products/services of the Client. Periodic reporting will be sent to the Client’s nominated email address, at the sole discretion of idDesign (Web Design Auckland).
  • Domain Registration
    1. Where idDesign (Web Design Auckland) registers a domain name on the Client’s behalf, idDesign (Web Design Auckland) cannot guarantee the availability of the domain name, nor assume a successful registration or such a name.
  • Risk and Limitation of Liability for Client Data
    1. The Client shall provide idDesign (Web Design Auckland) with data in the following formats:
      1. for text, files shall be in an electronic format as standard text (.txt) or Work (.doc) on a USB, CD-ROM or via email;
      2. for imaged, in an electronic format as prescribed by idDesign (Web Design Auckland) on a USB, CD-ROM or via email with the images of a suitable quality applicable for the use intended and without any subsequent image processing being required. idDesign (Web Design Auckland) shall not be responsible for the quality of images scanned from printed materials;
      3. additional expenses may be charged to the Client for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing or data entry services.
    2. The Client acknowledges and agrees that idDesign (Web Design Auckland) shall not be held responsible or liable for:
      1. anything related to the Web Site, Hosting Services or any other Services provided;
      2. any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of idDesign (Web Design Auckland);
      3. any loss, corruption, or deletion of files or data (including, but not limited to software programmes) resulting from illegal hacking or Services provided by idDesign (Web Design Auckland). Whilst idDesign (Web Design Auckland) will endeavour to restore the Web Site, files or data (at the Client’s cost), it is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to idDesign (Web Design Auckland) providing the Services. The Client accepts full responsibility for the Client’s software and data and idDesign (Web Design Auckland) is not required to advise or remind the Client of appropriate backup procedures (unless included as part of the Services);
      4. any loss or damage to the Client’s software or hardware caused by any ‘updates’ provided for that software.
    3. idDesign (Web Design Auckland), its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by idDesign (Web Design Auckland) to the Client.
    4. The Services are provided on an “as is, as available” basis. idDesign (Web Design Auckland) specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.
    5. Public Access:
      1. the Client understands that by placing information on the Web Site, such information may be accessible to all internet users. idDesign (Web Design Auckland) does not (unless expressly requested by the Client) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity. The Client assumes full responsibility for their use of the Services, and it is the Client’s sole responsibility to evaluate the accuracy, completeness and usefulness or all opinions, advice, services, and other information, and the quality and merchantability of all Services provided by idDesign (Web Design Auckland), or on the internet generally.
    6. Defects, Errors and Omissions:
      1. the Client shall inspect/review the Services on provision and shall within seven (7) days of such time notify idDesign (Web Design Auckland) of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford idDesign (Web Design Auckland) an opportunity to inspect/review the Services within a reasonable time following such notification if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
      2. for defective Services, which idDesign (Web Design Auckland) has agreed in writing that the Client is entitled to reject, idDesign (Web Design Auckland)’s liability is limited to either (at idDesign (Web Design Auckland)’s discretion) replacing the Services or rectifying the Services, provided that the Client has complied with the provisions of sub-clause 17.1.
  • Confidentiality
    1. Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
  • Title
    1. idDesign (Web Design Auckland) and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until:
      1. the Client has paid idDesign (Web Design Auckland) all amounts owing for the Services; and
      2. the Client has met all other obligations due by the Client to idDesign (Web Design Auckland) in respect of all contracts between idDesign (Web Design Auckland) and the Client.
    2. Receipt by idDesign (Web Design Auckland) 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 idDesign (Web Design Auckland)’s ownership or rights in respect of the Incidental Items shall continue.
    3. It is further agreed that:
      1. the Client is only a bailee of the Incidental Items and must return the Incidental Items to idDesign (Web Design Auckland) immediately upon request by idDesign (Web Design Auckland);
      2. the Client holds the benefit of the Client’s insurance of the Incidental Items on trust for idDesign (Web Design Auckland) and must pay to idDesign (Web Design Auckland) the proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed;
      3. the Client must not sell, dispose, or otherwise part with possession of the Incidental Items. If the Client sells, disposes or parts with possession of the Incidental Items then the Client must hold the proceeds of sale of the Incidental Items on trust for idDesign (Web Design Auckland) and must pay or deliver the proceeds to idDesign (Web Design Auckland) on demand;
      4. the Client should not convert or process the Incidental Items or intermix them with other goods, but if the Client does so then the Client holds the resulting product on trust for the benefit of idDesign (Web Design Auckland) and must dispose of or return the resulting product to idDesign (Web Design Auckland) as idDesign (Web Design Auckland) so directs;
      5. the Client shall not charge or grant an encumbrance over the Incidental Items nor grant nor otherwise give away any interest in the Incidental Items while they remain the property of idDesign (Web Design Auckland);
      6. the Client irrevocably authorises idDesign (Web Design Auckland) to enter any premises where idDesign (Web Design Auckland) believes the Incidental Items are kept and recover possession of the Incidental Items.
  • Personal Property Securities Act 1999 (“PPSA”)
    1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
      1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
      2. a security interest is taken in all Incidental Items and/or collateral (account) – being a monetary obligation of the Client to idDesign (Web Design Auckland) for Services – that have previously been supplied and that will be supplied in the future by idDesign (Web Design Auckland) to the Client.
    2. The Client undertakes to:
      1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which idDesign (Web Design Auckland) may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
      2. indemnify, and upon demand reimburse, idDesign (Web Design Auckland) for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Incidental Items charged thereby;
      3. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items and/or collateral (account) in favour of a third party without the prior written consent of idDesign (Web Design Auckland).
    3. idDesign (Web Design Auckland) and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
    4. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
    5. Unless otherwise agreed to in writing by idDesign (Web Design Auckland), the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
    6. The Client shall unconditionally ratify any actions taken by idDesign (Web Design Auckland) under clauses 15.1 to 15.5.
  • Security and Charge
    1. In consideration of idDesign (Web Design Auckland) agreeing to supply Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    2. The Client indemnifies idDesign (Web Design Auckland) from and against all idDesign (Web Design Auckland)’s costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising idDesign (Web Design Auckland)’s rights under this clause.
    3. The Client irrevocably appoints idDesign (Web Design Auckland) and each director of idDesign (Web Design Auckland) as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Client’s behalf.
  • Defects
    1. The Client shall inspect the Services on delivery and shall within seven (7) days of delivery notify idDesign (Web Design Auckland) of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford idDesign (Web Design Auckland) an opportunity to inspect the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
    2. For defective Services, which idDesign (Web Design Auckland) has agreed in writing that the Client is entitled to reject, idDesign (Web Design Auckland)’s liability is limited to either (at idDesign (Web Design Auckland)’s discretion) replacing the Services or rectifying the Services provided that the Client has complied with the provisions of clause 17.1.
  • Consumer Guarantees Act 1993
    1. If the Client is acquiring Services for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Services by idDesign (Web Design Auckland) to the Client.
  • Intellectual Property
    1. Where idDesign (Web Design Auckland) has designed, drawn or developed Incidental Items for the Client, then the copyright in any Incidental Items shall remain the property of idDesign (Web Design Auckland). Under no circumstances may such designs, drawings and documents be used without the express written approval of idDesign (Web Design Auckland).
    2. The Client warrants that all designs, specifications or instructions given to idDesign (Web Design Auckland) will not cause idDesign (Web Design Auckland) to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify idDesign (Web Design Auckland) against any action taken by a third party against idDesign (Web Design Auckland) in respect of any such infringement.
    3. The Client agrees that idDesign (Web Design Auckland) may (at no cost) use for the purposes of marketing or entry into any competition, any Incidental Items which idDesign (Web Design Auckland) has created for the Client.
  • Default and Consequences of Default
    1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at idDesign (Web Design Auckland)’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. If the Client owes idDesign (Web Design Auckland) any money the Client shall indemnify idDesign (Web Design Auckland) from and against all costs and disbursements incurred by idDesign (Web Design Auckland) in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, idDesign (Web Design Auckland)’s collection agency costs, and bank dishonour fees).
    3. Further to any other rights or remedies idDesign (Web Design Auckland) may have under this contract, if a Client has made payment to idDesign (Web Design Auckland), and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by idDesign (Web Design Auckland) under this clause 20, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
    4. Without prejudice to idDesign (Web Design Auckland)’s other remedies at law idDesign (Web Design Auckland) shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to idDesign (Web Design Auckland) shall, whether or not due for payment, become immediately payable if:
      1. any money payable to idDesign (Web Design Auckland) becomes overdue, or in idDesign (Web Design Auckland)’s opinion the Client will be unable to make a payment when it falls due;
      2. the Client has exceeded any applicable credit limit provided by idDesign (Web Design Auckland);
      3. the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
  • Cancellation
    1. Without prejudice to any other remedies idDesign (Web Design Auckland) may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions idDesign (Web Design Auckland) may suspend or terminate the supply of Services to the Client. idDesign (Web Design Auckland) will not be liable to the Client for any loss or damage the Client suffers because idDesign (Web Design Auckland) has exercised its rights under this clause.
    2. idDesign (Web Design Auckland) may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice idDesign (Web Design Auckland) shall repay to the Client any money paid by the Client for the Services. idDesign (Web Design Auckland) shall not be liable for any loss or damage whatsoever arising from such cancellation.
    3. In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by idDesign (Web Design Auckland) as a direct result of the cancellation (including, but not limited to, any loss of profits).
    4. Where the Client cancels an order:
      1. the initial notification may be by telephone or email but must be confirmed in writing within fourteen (14) days;
      2. the Client shall be invoiced for all work completed over and above the non-refundable deposit as per clause 5.4;
      3. where failure clause 21.4(a) occurs, the Client shall be required to pay the full quoted cost of the Services.
    5. Should the Client, for any reason, cause the Services to be delayed for more than three (3) months after the acceptance date, this agreement will be terminated by idDesign (Web Design Auckland) (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.
    6. If the Client fails to comply with any of the provisions of this agreement and does not rectify such non-compliance within seven (7) days of idDesign (Web Design Auckland) giving notice either in writing, via fax or email, then idDesign (Web Design Auckland) may without prejudice to any other rights or remedies, and without being liable to the Client for any loss or damage that may result, give notice to the Client terminating their right to use the Web Site, Software and Services. Upon termination of the agreement, the Client shall lose all right to use the Web Site and products, and shall forthwith deliver the Goods to idDesign (Web Design Auckland) and destroy all copies made. The Client shall certify in writing that the copies have been destroyed.
    7. In the event the Services are terminated as per clauses 21.4 or 21.6, 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.
    8. Should the Client require the domain transfer keys, website files and databases, there will be a charge at idDesign (Web Design Auckland)’s hourly rate. After full outstanding payments are received, domain transfer keys, website files and databases will be supplied within fourteen (14) days.  idDesign (Web Design Auckland) will not be responsible for any files and databases once they have left the idDesign (Web Design Auckland) hosting platform and new licences will have to be purchased by the Client should they be required for any software, themes and plugins.  SEO is done on a monthly basis and, once this service is terminated, is not transferable.
  • Privacy Act 1993
    1. The Client authorises idDesign (Web Design Auckland) or idDesign (Web Design Auckland)’s agent to:
      1. access, collect, retain and use any information about the Client;
        1. (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
        2. for the purpose of marketing products and services to the Client.
      2. disclose information about the Client, whether collected by idDesign (Web Design Auckland) from the Client directly or obtained by idDesign (Web Design Auckland) from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
    2. Where the Client is an individual the authorities under clause 22.1 are authorities or consents for the purposes of the Privacy Act 1993.
    3. The Client shall have the right to request idDesign (Web Design Auckland) for a copy of the information about the Client retained by idDesign (Web Design Auckland) and the right to request idDesign (Web Design Auckland) to correct any incorrect information about the Client held by idDesign (Web Design Auckland).
  • Service of Notices
    1. Any written notice given under this contract shall be deemed to have been given and received:
      1. by handing the notice to the other party, in person;
      2. by leaving it at the address of the other party as stated in this contract;
      3. by sending it by registered post to the address of the other party as stated in this contract;
      4. if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
      5. 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.
  • Trusts
      1. If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not idDesign (Web Design Auckland) may have notice of the Trust, the Client covenants with idDesign (Web Design Auckland) as follows:
        1. the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
        2. the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
        3. the Client will not without consent in writing of idDesign (Web Design Auckland) (idDesign (Web Design Auckland) will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
          1. the removal, replacement or retirement of the Client as trustee of the Trust;
          2. any alteration to or variation of the terms of the Trust;
          3. any advancement or distribution of capital of the Trust; or
          4. any resettlement of the trust property.
  • General
    1. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    2. These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
    3. idDesign (Web Design Auckland) shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by idDesign (Web Design Auckland) of these terms and conditions (alternatively idDesign (Web Design Auckland)’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
    4. idDesign (Web Design Auckland) may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
    5. The Client cannot licence or assign without the written approval of idDesign (Web Design Auckland).
    6. idDesign (Web Design Auckland) may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of idDesign (Web Design Auckland)’s sub-contractors without the authority of idDesign (Web Design Auckland).
    7. The Client agrees that idDesign (Web Design Auckland) may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for idDesign (Web Design Auckland) to provide Goods to the Client.
    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 or other event beyond the reasonable control of either party.
    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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