DEFINITIONS
Company means White Rata Limited, its successors and assigns.
Customer refers to the company or individual providing instructions to the Company.
Confidential Information means information belonging to a party which relates to that party’s Intellectual Property Rights or financial affairs, and any other information belonging to that party of commercial value to that party which, by its nature, is or could reasonably be expected to be regarded as confidential.
Confidential information does not include information that:
a) the Recipient can demonstrate was known to it prior to the date of disclosure;
b) is lawfully and independently obtained from a third party without restriction as to its disclosure or use;
c) is independently deduced, discovered or developed by the Recipient;
d) is or becomes (through no fault of the Recipient or its officers, employees, contractors or professional advisers, and their respective employees and officers) public knowledge;
e) the Recipient is required to disclose by law or by order of any court of competent jurisdiction or of any regulatory authority whose requirements are binding on the Recipient; or
f) is released from its confidential status by the Discloser.Intellectual Property Rights includes all present and future rights in relation to copyright, trade marks, designs, patents, trade, business or company names, trade secrets, confidential or other proprietary rights, or any rights to registration of such rights, whether created before or after the date of these Terms & Conditions and whether existing in New Zealand or otherwise.
Work means all work carried out by the Company on behalf of the Customer.
ACCEPTANCE
The Customer’s acceptance of Company’s offer, whether by means of email, purchase order, letter of intent, verbal or any other method of acceptance, will constitute the Customer’s acceptance of Company’s offer and these Terms & Conditions .By providing instructions to Company, the Customer acknowledges that it has read and understands these Terms & Conditions and agrees that it is bound by the obligations created by these Terms & Conditions.
CHANGE IN CONTROL
The Customer shall give the Company 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, or business practice). The Customer shall be liable for any loss incurred by the Company as a result of the Customer’s failure to comply with this clause.
PAYMENT
Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by Company, which may be:
a) on completion of the Works; or
b) by way of instalments/progress payments in accordance with Company’s specified instalments/progress payment schedule;
c) the date specified on any invoice or other form as being the date for payment; or
d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Company.
The Customer may not deduct, set-off or withhold any sum due to the Company, even if a dispute exists.
If the Customer does not pay any sum by the date it is due, then without prejudice to the Company’s other remedies, the Company may charge the Customer interest on the unpaid overdue balance at the rate of 5% per annum from the date payment was due until the date of payment. Payment may be made by cash, electronic/on-line banking, or by any other method as agreed to between the Customer and Company.
Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Company an amount equal to any GST Company must pay for any provision of Works by Company under this contract or any other agreement. 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.
RIGHTS, RESPONSIBILITIES
The Company will;
a) use its best endeavours to provide the Services to the Customer in a reasonable and timely manner
b) use all reasonable endeavours to meet the Deliverables Timetable.
c) provide the Services to the Customer during such hours and on such days as Company considers necessary to complete the Services.
d) where required engage subcontractors to assist in the provision of the Services pursuant to these Terms & Conditions.
In the case of any and all events that Company could not have foreseen or prevented, such as fire, natural disasters, war, terror, strikes, power outages and/or if the delivery of the Services and or Products is delayed for any reason other than a breach of these Terms & Conditions by Company
The Customer will:
a) deliver all required documents and information and other inputs as agreed upon to the Company;
b) provide the Company with full access to the Customer’s website, intellectual property and any necessary materials and information that is reasonably required to enable the Company to comply with its obligations under these Terms & Conditions;
c) not engage the services of a third party to amend or further develop the work provided by Company during the course of this agreement;
d) be responsible for the correctness of all text and the inclusion of the pictures and their location on any part of the materials;
e) carry responsibility for the accuracy of any statements in the advertisements made with regard to products or services delivered by the Customer and acknowledges that Company is simply relying on information provided by the Customer, Company has not made any independent enquiry as to the accuracy of the information which the Customer warrants as completely true and correct;
f) warrant that there has been no infringement of any third party’s intellectual property rights and that all necessary consents by third parties either as to the use of the intellectual property rights and/or the use of any imagery of that third party have been obtained
OWNERSHIP
The Company will retain all rights of ownership in and any intellectual property rights arising out of any material prepared by it such as concepts, designs, files, final drawings, ideas, improvements, inventions, know how, layouts, novel ideas, plans, procedures, processes, samples, systems, etc until payment has been received in full from the Customer.
The provision of originals and/or copies of such material does not constitute an assignment of any interest in the material and/or any intellectual property right to the Customer unless specifically agreed to in writing by Company and signed by a director of Company.
The Company shall retain all rights to use any material for its own purposes without the prior consent of the Customer.
Company is entitled to show the name and/or logo of the Customer and the services rendered to it, and/or refer to the Customer in relation to the services rendered to it, in the press and Company’s advertising contracts, including Company’s website and the Customer consents to the use of its name and logo in this manner and to the extent applicable waives any right under the Privacy Act 1993 to the display of the Customer’s name and/or logo.
If following a presentation the Customer does not proceed with providing an instruction to Company, Company shall be entitled to make any other use of the ideas and concepts delivered by Company to the Customer and the Customer acknowledges that it will not utilise any material, idea and/or concept recommended by Company without providing a formal instruction to Company and/or otherwise having the agreement in writing from Company signed by a director.
INDEMNITIES & LIABILITIES
The Customer indemnifies Company, its officers, employees, contractors or professional advisers, and their respective employees and officers, in respect of any claims, loss (including legal costs on a solicitor-Customer and/or indemnity basis and any actual expenses incurred including but not limited to those of any debt collection agency and any direct, indirect or consequential loss), caused by or arising out of, directly or indirectly the carrying out of any instruction by Company from the Customer and/or any act, omission, negligence, or default by or on behalf of the Customer and/or the infringement of any copyright, patent and/or any other intellectual property right of any third party whether such liability arises under the Fair Trading Act or any other statutory enactment irrespective of whether it is known at the time of infringement that such third party rights exist (including but not limited to any provision of the Health and Safety in Employment Act 1992, the Privacy Act 1993, the Fair Trading Act 1986 and/or any other enactment under which Company may become liable).
Company shall have no liability to the Customer for any delay in carrying out any instructions received and/or otherwise as a result of the breach of any terms of these terms and conditions and shall have no liability for any losses suffered to the Customer (whether being direct losses and/or indirect and/or consequential and/or economic losses) howsoever caused (whether as a result of the wilful acts of Company its employees, contractors and/or agents and/or as a result of any negligence on the part of Company, its employees, contractors and/or agents).
Company makes no representation as to the originality of any ideas, suggestions, concepts, proposals, conceptual designs, and/or their patentability or eligibility for trademark registration nor as to the ownership of any copyright in the ideas.
Company’s total liability under these Terms & Conditions to the Customer or any other party will not exceed the amount of the Service Fee actually paid to Company.
Without limiting the foregoing exclusions and limitations on Company’s liability the following specific exclusions shall also apply:
(a) Company is not liable for content posted by the Customer or by the Company at the Customer’s request on websites.
(b) Company will not be liable for any changes the Customer makes to all or part of the website or email systems that are the subject of any instruction to Company;
(d) Figures or photos in printed work or on the Internet are not the responsibility of Company and no warranties are provided for actual looks and colours.
WARRANTIES
The Customer warrants that it has not relied on any representation made by Company in providing any instruction to Company and these Terms & Conditions constitute the entire agreement between the parties.
The Company does not provide any warranty in respect of, nor accept any liability for, the performance or non-performance of any materials and/or services provided except to the extent required by law.
All warranties implied by law, custom or otherwise, are excluded to the extent permitted by law.
Any condition or warranty which would otherwise be implied in these Terms & Conditions is excluded to the maximum extent permitted by law, and the Consumer Guarantees Act 1993 will not apply to Services acquired, or where the Customer holds themselves out as acquiring the Services, for the purposes of a business.
The Customer warrants that the services and materials to be provided are fit for the purpose communicated to Company and that the Customer has relied on its own judgment as to the suitability of the purpose for which the materials and service are provided.
MISCELLANEOUS
If any part of these terms of trade are deemed to be void, illegal, or unenforceable, that part will be severed, and will not affect the validity of the rest of the terms of trade. The laws of New Zealand apply exclusively to these terms.
The person signing these terms, whether personally or on behalf of another entity or as guarantor, will be personally liable for payment as a principal debtor. The Company is authorised to obtain a credit check of the Customer.