Last updated: 8 August 2023

  1. Introduction

    These terms, along with our Acceptable Use Policy and our Privacy Policy apply to all Services that we provide to you anytime, whether now or in the future. In the case of conflict between these terms and the provisions in any other agreements or documents relating to the Services, these terms shall apply and shall be paramount and supersede the conflicting provisions.
  2. Services

    If we provide you with the following Services then:
    1. Consulting, Administration and Implementation Services
      1. We shall agree with you upon a Terms of Reference detailing the proposed Consulting, Administration and Implementation Services.
      2. You agree to make information and resources available to us in a timely manner so that we can also fulfil our obligations to you under the Terms of Reference in a timely and efficient manner.
      3. We will use our reasonable endeavours to deliver the Consulting, Administration and Implementation Services to you in accordance with the Terms of Reference.
      4. The Terms of Reference is based upon information that you provide to us. Therefore, you must make sure that you fully brief us on all matters. If you do not, the cost of the Terms of Reference may change (see clause 3).
      5. When the Terms of Reference is agreed by you it shall be deemed to be a complete statement of all of your requirements as at the date of agreement. If your requirements should change following the date of agreement of the Terms of Reference, we will then follow the process outlined in clause 3.
    2. Software and Hosting Services
      1. We will provide access to the Software and Hosting Services as agreed in the Terms of Reference and you will be billed the Subscription Fee applicable for the provision of the Software and Hosting Services. You will not be billed for the Software and Hosting Services until the Completion Date. It is important to understand that you will be billed for the Software and Hosting Services from the Completion Date, which may be earlier than your "go-live" / "website launch" date.
      2. We will aim to provide you with consistent and reliable Software and Hosting Services. However, we are dependent on services provided by our suppliers, including (but not limited to) our Carriers, and cannot guarantee there will be no interruptions to our Software and Hosting Services. When access to your Website or the Software and Hosting Services is disrupted, we will use reasonable endeavours to identify the cause of the disruption and reinstate the Software and Hosting Services as soon as possible if it is within our power to do so.
      3. We will deliver the Software and Hosting Services to you in whatever way we deem to be most appropriate. We can at our sole discretion (and at any time) choose to change Carriers or any other suppliers.
      4. Subject to any limitations in the Terms of Reference, you may choose to change the Software and Hosting Services by requesting the change in writing and we will action your request as soon as we are reasonably able to. Any change to the Subscription Fee for the Software and Hosting Services will take effect on the day we notify you that the changed Software and Hosting Services are available for your use.
      5. The Software and Hosting Services you have selected may include Support from us via one of our "Care & Support" packages. We may provide Support through various mediums including phone, email, live chat, etc. If Support is included in the Software and Hosting Services you have selected, you will not be charged for Support that falls within the usage limits associated with each of our Care & Support packages. If you exceed these limits then additional Charges for Support will apply. If this is the case, we will advise you before providing the Support that will incur additional Charges.
      6. We reserve the right to remove or change any Software and Hosting Services we may have offered from time to time and either replace them with new Services or move you on to the most similar or suitable Software and Hosting Service then on offer to our customers. If we do remove or change a Software and Hosting Service that affects you, we will give you as much notice as is practically possible but, in any case, not less than 30 days' notice.
    3. Additional Services
      You agree that the provision of any Additional Services will also be subject to these terms.
    4. Third Party Providers Products and Services
      On occasion, subject always to clause 5(e)-(g) (inclusive) below, we may recommend you to purchase products and services from Third Party Providers. Where we do so, we may receive commissions from the Third Party Providers for recommending their products or services to you.
  3. Project Changes

    The scope of a website or IT project and the priorities associated with the different aspects of the project will often evolve as the project progresses, problems are encountered and/or refinements are made ("Project Variation"). This occurs due to a number of factors including (but not limited to) a refinement in our understanding or your own understanding of your expectations, a change in your objectives, an unforeseen circumstance or an extension or a reduction in the scope of the project. This is a natural and expected occurrence in any website or IT project and is not due to the fault of any particular party. Our team will therefore work in a flexible and collaborative manner with you during the course of the project so that you can participate and provide your feedback and make necessary decisions to progress the project, including making any modifications or adjustments. If this happens, it may become necessary to review the Terms of Reference or the Estimated Budget.
  4. Testing & Bug Fixing
    1. Initial Testing & Bug Fixing
      Testing and bug fixing is an integral and vital part of any Customisation. The existence of bugs is a natural and normal occurrence within any website or software development process and is not due to deficiencies or inefficiency in our systems or processes. It is not cost-effective to develop software without any bugs, or to detect and fix all bugs as part of the initial testing and bugfixing process. Some bugs will surface and be fixed during the initial testing and bug fixing process. Depending on the level of refinement that you may require and the amount of cost that you are prepared to incur, we recommend that you only fix those bugs that will critically impact the performance of the Customisation and are cost-effective to fix. We normally recommend as a rule of thumb to reserve 20% of the Estimated Budget for initial testing and bug fixing. However, the amount reserved may not be adequate due to a number of reasons, for example, as a result of changes made to the scope of the project, as described in clause 3 above. In that case, the Estimated Budget will be varied accordingly.
    2. Ongoing Bug Fixing
      Bugs may also continue to surface from time to time in any Customisation due to various reasons such as changes to web browsers, devices or third party APIs (Application Programming Interfaces) which may interfere with the effective functioning of a Customisation, or the way you use a Customisation may expose weaknesses that weren't previously apparent, and other Customisations to the Website may conflict with existing ones. In all cases you will need to pay to fix these bugs if you deem it to be cost-effective and necessary to do so.
  5. Warranties
    1. We warrant that we will provide all of our Services with the care and skill that can be expected from a competent e-business advisor, website designer and developer, professional services and software as a service (SaaS) provider.
    2. Subject to clause 5(c) below, if we supply you with a Website, we also warrant that for 30 days from the Completion Date ("Warranty Period") the Website will conform to the Terms of Reference. If this warranty is breached within the Warranty Period we will bring the Website into conformity with the Terms of Reference at our cost. Note that this warranty does not extend to any deviations caused by your negligence, misuse, or alterations or modification made by you or any third party that we have not permitted in writing.
    3. We do not warrant that the Website will:
      1. be completely free of defect or error (commonly referred to as 'bugs'); or
      2. be completely secure; or
      3. work on all devices, screen resolutions, internet browsers and operating systems.
    4. Except as expressly stated in these terms, all conditions and warranties, express or implied, are excluded to the maximum allowed by law.
    5. Also, if we recommend that you use a Third Party Provider's products or services in conjunction with the Services, you agree that we will have no liability (however arising) in respect of such products or services or the provision of such products and services to you. For the avoidance of doubt, this includes (for example) the use of any automatic credit card transaction process facility or payment gateway, accounting software, inventory management software, point of sale (POS) system, retail management system, content management system (CMS), customer relationship management (CRM) system, intranet, document management system or file storage system.
    6. Where you have purchased products or services to be provided by NoCoffee SARL (either now or in the future), their terms of use shall apply to the provision of those products and services at all times.
    7. Where you have purchased products or services to be provided by Dreamscape Networks International Pte Ltd trading as Dreamscape Networks (either now or in the future), their terms shall apply to the provision of those products and services at all times.
    8. Where you have purchased products or services to be provided by other Third Party Providers, the terms of those Third Party Providers shall apply to their products and services.
    9. It is also your responsibility to observe and comply with all relevant legislation and regulations including (but not limited to) any applicable taxation regulations and accounting principles when using any of our Services or a Third Party Provider's products or services. In particular, and by way of examples only, when using any Third Party Provider's accounting software, inventory management software, point of sale (POS) system, or retail management system, it is your responsibility to seek the appropriate accounting, business or financial advice from your own accountant, business or financial adviser (as the case may be). It is also your sole responsibility to determine the suitability or fitness for any particular purpose of any of our Services or any Third Party Provider's products or services. We do not provide any accounting or financial advice, and any recommendation by us to use any of Our Services or any Third Party Provider's products or services should not be construed as the provision of accounting or financial advice by us.
    10. You agree that to the extent that the Services are purchased by you for the purpose of your business or undertaking, the provisions of the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the Fair Trading Act 1986 do not apply.
  6. Your Responsibilities
    1. It is your responsibility to:
      1. promptly provide, all the information, assistance and approvals that we may reasonably require so that we can operate our business efficiently and profitably and fulfil our obligations to you under the Terms of Reference in a timely and efficient manner. In particular, you must respond to any request from us to:
        1. provide any information or any additional information; or
        2. provide your feedback on matters specified in our request; or
        3. provide your approval to proceed to the next immediately following stage of your project; and
        4. in each case, within the time frame stipulated in the request or, if no time frame is specified, within seven (7) days (time being of the essence); and
      2. maintain backup data necessary to replace any of your data that is lost or damaged from any cause; and
      3. obtain, and if required pay for, any consents and licenses required for you or us to incorporate third party materials in the Website; and
      4. follow any instructions provided by us in respect of the Website and/or the Services and ensure that your employees, agents and contractors who use the Website and the Services also meet your responsibilities under these terms when using the Website and/or the Services; and
      5. use the Services at all times strictly in accordance with our Acceptable Use Policy as amended by us from time to time; and
      6. keep strictly confidential any password and log-on we give you for access to the administration functions of the Website.
    2. If you fail to respond promptly to our requests in accordance with clause 6(a)(i) then (without affecting our rights under clause 13(d)(vi)) we may, but are not obligated to, proceed to the next immediately following stage of your project in order that we can complete our work and deliver your project in a cost efficient and timely manner.
    3. You confirm that all written copy, images, illustrations, diagrams, photographs, animations, 3D models, sound, music, video, documents, presentations, files, software and other information or content you supply to us or place on your Website ("Your Material"):
      1. are complete and accurate and not likely to mislead or deceive or cause damage to the reputation of any person or company; and
      2. will not cause us, in the course of providing the Services or otherwise fulfilling our obligations under the Terms of Reference, to infringe upon any person's Intellectual Property including (but not limited to) any copyright or patent, registered design, or trademark and you agree to indemnify us against any action taken by a third party against us in respect of any such infringement; and
      3. are not offensive, harmful, upsetting, unlawful, or otherwise objectionable. For the avoidance of doubt, this includes complying with the Film, Videos and Publications Classification Act 1993.
    4. In order to reduce fraud and to protect sensitive credit card information, you agree that you will not store credit card details and will only process credit card transactions using systems that are PCI DSS compliant (visit www.pcisecuritystandards.org for more information) and that are authorised by us or your banking institution.
    5. This clause applies where you have requested and require us to access and/or extract some or all of the content and/or data from your existing information assets including (but not limited to) your website, Google account, Microsoft account, YouTube account, Facebook account, LinkedIn account, Apple account, or any other database or account and to incorporate such content and/or data into any new website, online account, or database that we are building for you, redesigning for you, or setting up for you. For the purpose of carrying out the tasks described in the foregoing, you have given (or will give us) the relevant details and access rights to access your information assets. By giving us the relevant details and access rights to your existing information assets you warrant and undertake that:
      1. you are the legal owner of your existing information assets and their contents and data, including all Intellectual Property Rights in or relating to the contents and data;
      2. you have full and unfettered rights to deal with your existing information assets and their contents and data;
      3. you unequivocally authorise and empower us (including our employees and contractors) to access your existing information assets:
        1. to use, transfer and/or upload, in accordance with your instructions, all or part of the contents and/or data of your existing information assets to your website, online account or database that we are building, redesigning or setting up for you;
        2. to use, extract and/or copy, in accordance with your instructions, all or part of the contents or data of your existing information assets including, without limitation, your product and service information, your company overview, your customer database, your customer orders, and your analytics and performance metrics; and
      4. you will indemnify us against any claims, demands, proceedings (including all legal costs arising therefrom on a full indemnity basis) that may be made against us by any third party for alleged unauthorised access to your existing information assets, unauthorised use, extraction or copying of the contents or data of your existing information assets or for infringement of such third party's Intellectual Property Rights in or relating to your existing information assets contents or data.
    6. Our employees and/or contractors with whom you are, or will be, dealing with are very valuable to us. We have invested considerable time, money and effort in recruiting, training and upskilling them. In consideration of our agreement to provide you the Services, you agree, covenant and undertake that you will not, whether directly or indirectly and in any capacity whatsoever, induce, or attempt to induce, any of our employees or contractors to terminate his or her employment or contractual relationship with us. If you breach your agreement, covenant and undertaking in this clause, then:
      1. we may immediately terminate the Terms of Reference (including the Software and Hosting Services) and any amounts owing by you to us under the Terms of Reference and these terms must be paid immediately, and we will be regarded as wholly discharged from any further obligations or performance under the Terms of Reference or these terms; and
      2. on demand in writing by us, you shall indemnify us and pay us in respect of each of such employees or contractors, as agreed liquidated damages, a sum equivalent to the total remuneration or compensation (including [but not limited to] any allowances, bonuses, overtime pay or permitted disbursements), exclusive of any tax or GST, paid by us to such employee or contractor for the last three calendar months immediately prior to the date of the termination of his or her employment or contractual relationship with us. The amount demanded shall be deemed to be a debt due from you to us and you must pay that debt in full, without any deduction or set-off, within 10 days from the date of the demand. If you fail to pay the debt, then, we will be entitled to apply to the court for summary judgment against you in respect of the debt together with all legal costs (on a full indemnity basis) and any disbursements incurred by us in respect of the application. For the purposes of such summary judgment application, this clause shall be evidence of, and shall be deemed, an unequivocal admission by you of the debt (including any legal costs and disbursements); and
      3. for the avoidance of doubt, clause 13(e) shall not apply to a termination under this clause 6(f).
  7. Intellectual Property
    1. We need to be able to use our code, including (but not limited to) any Customisation code, website interfaces, layouts and templates for more than one client. Therefore, except for any Intellectual Property in Your Material and any Content Material, we and our suppliers own:
      1. all Intellectual Property in the Website, including (but not limited to) any code, the user and administration interfaces, measurement, administration and tracking tools; and
      2. all new Intellectual Property (if any) developed or created by us, our agents, employees and contractors in connection with the Services, including (but not limited to) any elements (in source and object code) which form part of the generic functionality of the Website or any elements (in source and object code) which implement visual features or layouts of the Website and its content, including (but not limited to) the Content Material,
      (collectively, "Our IP").
    2. Provided you meet your payment obligations for the Consulting, Administration and Implementation Services you are granted a personal, non-exclusive, non-transferable license to use Our IP for the term of and in the manner anticipated in the Terms of Reference. We warrant that we have the right to grant you a licence to use the Services in the manner anticipated in the Terms of Reference. However, unless we have expressly agreed otherwise in writing, no license is given for you to use Our IP to develop any products or software that will be sold by you or anyone else.
    3. Provided you meet your payment obligations for the Consulting, Administration and Implementation Services, but subject to clause 7(d) below, you are granted all Intellectual Property rights (including copyright) in the Content Material provided as part of the Content Services except where the Content Material is owned by third parties and licensed to us in which case we will endeavour to obtain the necessary sublicence or consent for you to use such Content Material in the manner anticipated in the Terms of Reference.
    4. The Website may include software or components from software that is made available under a licence that complies with the Open Source Definition ("Open Source Software"). We provide the Open Source Software to you on the terms set out in the licence for the relevant Open Source Software.
    5. We expressly disclaim any warranty or other assurance to you regarding the Open Source Software.
    6. In the course of providing the Services to you, we may implement various measurement, tracking and optimisation tools and methodologies to assist us to collect, measure, track, analyse, assess, report on, or optimise your website (whether created by us or others), any social networking services utilised by you including (without limitation) Facebook, Linkedin and Twitter, and any other online marketing or e-business initiatives that may be in place from time to time. The data generated including (without limitation) the analyses, assessments and reports are our Intellectual Property and our Confidential Information and will be owned by us and/or indie.web Limited, but we will not share that data with any third party (other than our parent company or its subsidiaries, or their respective successors in title).
  8. Liability
    1. We will not be liable to you, or any third party, in any way whatsoever for any:
      1. loss or damage to information or data from any cause; or
      2. breach of security; or
      3. loss of profit; or
      4. incidental, indirect, special or consequential loss or damage; or
      5. change (adverse or otherwise whatsoever) to your website or web page rankings as a result of certain actions taken by a search engine as further explained in paragraph (ii) below.
    2. Search Engine Optimisation ("SEO") is a process of applying various techniques to improve the ranking (or visibility) of a website or web page in a search engine's unpaid, organic results. Different search engines use different formulas for ranking a website or a web page and, from time to time, a search engine may change the formulas it uses for that purpose. We have no control whatsoever over the search engine or the changes a search engine may make to its formulas. When a search engine changes its formulas for ranking websites or web pages, your rankings with that particular search engine may be positively or negatively impacted. You acknowledge and agree that where you have purchased SEO services from us or from a Third Party Provider (whether or not recommended by us) we will not be held responsible for any changes (adverse or otherwise whatsoever) in your rankings as a result of changes made by a search engine to its formulas for ranking a website or a webpage.
    3. In any event, our maximum aggregate liability to you arising out of any claim for loss and/or damages (for any cause whatsoever) will under no circumstances exceed an amount equal to the total Charges paid by you under the relevant Terms of Reference in the 12 month period immediately preceding the event giving rise to liability.
    4. The limitations and exclusions of liability in this clause 8 shall apply however liability arises, whether in contract, tort (including negligence), breach of statutory duty or otherwise.
    5. Sometimes we will not be able to fulfill our responsibilities for whatever reason. If such a situation should arise, then clause 8(a), 8(c) and 8(d) will apply.
    6. You agree that we should not be exposed to your business and operational risks and so you agree:
      1. that we will not be liable for the results you achieve (or not achieve) from your use of the Services, including any loss of profits, costs or damages related to products or services that you sell, or are unable to sell; and
      2. to indemnify us against any claims, damages, liabilities, costs and expenses whatsoever and howsoever arising out of the conduct of your business, including your use of the Services and the Website.
    7. If you are not satisfied with the Services, your sole and exclusive remedy is to terminate the Terms of Reference in accordance with clause 13.
  9. Pricing Structures and Payment Terms
    1. Pricing Structures
      1. We have the following pricing structures:
        1. Fixed Price
          Where a fixed price is given, the service, package or product will be charged based on a fixed predetermined amount as detailed in the Terms of Reference ("Fixed Price").
        2. Time and Materials
          Where an Estimated Budget is given in the Terms of Reference or has been varied by virtue of clause 3(a), the Estimated Budget (whether original or varied) is just an estimate and is dependent on the resources utilised and the time expended by us. You will be charged for all the actual hours of work performed at our hourly rate, any direct expenses incurred, and the cost of any materials and any special equipment that may be required for the project ("Time and Materials").
      2. Payment of the price whether Fixed Price or Time and Materials will be on Standard Payment Terms.
    2. Payment Terms
      1. Standard Payment Terms
        You agree to pay the Charges for:
        1. Consulting, Administration and Implementation Services as specified and in the manner provided in the relevant Terms of Reference; and
        2. all Software and Hosting Services monthly in arrears from the Completion Date.
    3. Discount Arrangements
      1. This clause applies only where you, or you and any other companies related to or associated with you, have purchased from us a specific and sizable volume of Services under a Terms of Reference and we determine that such purchase may generate economic or logistical savings or advantages for both parties by reason of the efficiencies arising from, or relating to, undertaking an assured volume of work from you, or, where applicable, you and any other companies related to or associated with you. In recognition of those benefits and your contribution as such, we may, at our sole discretion, elect to enter into an arrangement with you whereby you pay a Special Price or a Special Hourly Rate for some or all of the Services that you have agreed to purchase under that Terms of Reference ("Discount Arrangement"). We stress that when we enter into a Discount Arrangement it is on the strict understanding and condition that the Discount Arrangement applies only to the Services purchased under that Terms of Reference and no other, and that we will be entitled to cancel the Discount Arrangement immediately if:
        1. for any reason whatsoever, you reduce (by volume or by dollar amount) your purchase of the Services under that or any other Terms of Reference; or
        2. where the Discount Arrangement arose from the purchase of a sizable volume of Services by you and any other company related to or associated with you, and the purchase of the Services was reduced (by volume or by dollar amount) by such related or associated company for any reason whatsoever including, without limitation, cancellation of a Terms of Reference; or
        3. you fail to pay promptly on the due date (time being of the essence) any instalment payable under that or any other Terms of Reference; or
        4. that or any other Terms of Reference is terminated in accordance with clause 13.
      2. If we cancel the Discount Arrangement in accordance with clause 9(c)(i), then:
        1. you will not be entitled to have the benefit of the Special Price or the Special Rate;
        2. you agree to compensate us (without any deduction or set-off):
          1. in an amount equal to the total Discount received by you for the Services which have been rendered up to the date of cancellation;
          2. any costs incurred by us to mitigate our losses as a result of your failure to fulfill your commitment to purchase a specific quantity of our Services; and
          3. any other losses, including (but not limited to) overheads and loss of revenue arising from planning, procuring, allocating, and reserving our time and resources for the purpose of providing the Services;
        3. any further Services provided by us after the date of cancellation will be charged to you at our standard list price or our standard hourly rate (as the case may be);
        4. if applicable, we may exercise our rights under clause 9(f).
    4. All Charges are in New Zealand dollars and are exclusive of all taxes and duties unless otherwise specified.
    5. Unless otherwise specified above, you agree to pay all invoices within 14 days of the invoice date. You shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to you by us nor to withhold payment of any invoice because part of that invoice is in dispute.
    6. If you do not pay the Charges on time we may, at our option do any or all of the following:
      1. suspend or restrict your use of the Services;
      2. terminate the relevant Terms of Reference in accordance with clause 13;
      3. refer your account to our debt collection agency;
      4. charge you all collection costs incurred by us, and you agree to indemnify us from and against all costs and disbursements incurred by us in recovering the unpaid Charges, including (but not limited to) internal administration fees, legal costs on a solicitor and own client basis, our collection agency costs, and bank dishonour fees;
      5. charge you default interest from the date when payment became due, until the actual date of payment of all amounts owing (including default interest), at a rate of two percent (2%) per calendar month (which shall at our sole discretion compound monthly at such a rate) after as well as before any judgment;
      6. set-off any amounts due from you against any moneys due from us or held in our account to your credit.
      7. and, for the avoidance of doubt, if we have agreed to allow you to pay the Charges by instalments and you default on the payment of an instalment when due, time being of the essence, then, the whole of the Charges then outstanding and remaining unpaid shall become immediately due and payable, without any demand or other formalities of any kind on our part, and we may exercise any and all of our rights as set out in (a) to (f) above.
  10. Privacy
    1. You authorise us or our agents to:
      1. access, collect, retain and use any information about you;
        1. (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing your creditworthiness;
        2. for the purpose of meeting our obligations and enforcing our rights under these terms and the Terms of Reference; or
        3. for the purpose of marketing products and services to you.
      2. disclose information about you, whether collected by us from you directly or obtained by us from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by you.
      3. with the exception of any Confidential Information, exchange the information we hold about you with our contractors, agents, representatives and Carriers for the purpose of meeting our obligations under these terms and the Terms of Reference.
      4. Monitor and record communications you make to us or we make to you in order to improve the service we provide to you and to assist us with meeting our obligations to you.
    2. Where you are an individual the authorities under clause 10(a) are authorities or consents for the purposes of the Privacy Act 1993.
    3. You shall have the right to request us for a copy of the information about you retained by us and the right to request us to correct any incorrect information about you held by us.
    4. In order to better provide and/or improve the Services, we may analyse website data and/or the various online marketing, social networking or e-business initiatives. Data collected for the analyses will be aggregated data and will be used for our statistical or research purposes. We may retain and use that data but will not share that data with any third party unless:
      1. we have your consent; or
      2. disclosure is required by law; or
      3. we need to provide the data to a third party to carry out tasks on our behalf (for example, data storage) with strict restrictions that prevent the data from being used or shared except as directed by us, and subject to strict confidentiality and security measures; or
      4. the third party is our parent company or its subsidiaries, or their respective successors in title.
  11. Confidential Information
    1. Each party will keep all information about the Terms of Reference, the Services, the Website and other information that is confidential to the other party ("Confidential Information") confidential and will not disclose this information to a third party without the consent of the other party. Each party shall ensure that its employees, subcontractors, professional advisors and agents abide by these obligations of confidentiality.
    2. Unless we agree otherwise in writing, we will each use any Confidential Information belonging to the other party only for the purposes of fulfilling our obligations to each other under the Terms of Reference and as permitted in these terms.
    3. Confidential Information does not include information clearly required to be disclosed by law; or is generally known and available without a party having breached its obligations under this clause 11; or is, or has been, independently and lawfully acquired or developed without the benefit or use of the other party's Confidential Information.
  12. Suspension of Services
    1. We may suspend the provision of the Services to you:
      1. if you do not meet all of your responsibilities under the Terms of Reference or these terms, provided we give you 7 days notice of such suspension.
      2. if a Carrier supplying services to us suspends or interrupts its service to us and that suspension or interruption affects our ability to provide the Services to you.
      3. in an emergency or whenever we, any Carrier, or any other appropriate person considers that it is necessary or reasonable to protect persons, systems or other property.
    2. We may, without any prior notice to you, remove material from or block access to your Website where we have received a notice of infringement under section 92C of the Copyright Act 1994 or any similar legislation in any other jurisdiction. You agree that we shall have no liability to you in respect of any loss (including loss of profit), cost or damage suffered or incurred by you as a result of such action. If there is a dispute between you and a third party regarding your Website or the contents of your Website, you acknowledge that it is your responsibility to resolve such dispute with the third party and you agree to indemnify us against all claims, proceedings or actions by such third party against us including costs (legal or otherwise) that we may incur in defending such claims, proceedings or actions on a full indemnity basis.
    3. Unless we otherwise agree, the Charges will continue to apply where we have suspended the Services or blocked access to your Website or otherwise removed any alleged infringing material pursuant to this clause.
  13. Termination
    1. Either of us may terminate a Terms of Reference (including the Software and Hosting Services) by providing written notice to the other party if the other party has either:
      1. been placed in receivership or liquidation, or entered into an arrangement or makes an assignment for the benefit of its creditors, or has become insolvent or bankrupt; or
      2. breached a term of the Terms of Reference, or these terms and failed to remedy such breach after being given written notice allowing at least 30 days to remedy the breach.
    2. This clause 13(b) shall not apply to a Terms of Reference where you have agreed to a Minimum Term (in which case you may not terminate a Terms of Reference until that Minimum Term is completed), nor to the Software and Hosting Services that may be included in a Terms of Reference (as to which clause 13(c) shall apply). Except as otherwise expressly provided in this clause 13(b), you may terminate the Terms of Reference at any time. However, it is important to note that, as a general rule, we incur substantial upfront costs in both time and resources before the Terms of Reference are finalised including (but not limited to) scoping your project, research and analysis of your requirements, identifying potential challenges, sourcing appropriate solutions and providing recommendations. Furthermore, once the Terms of Reference have been finalised, we continue to incur further significant costs not only in the actual implementation of your project but also in planning the implementation of your project, which includes (but is not limited to) preparatory work such as scheduling and mobilisation of appropriate human resources. Accordingly, if you terminate a Terms of Reference prior to the completion of your project, in addition to any amounts that you are liable to pay us under clause 13(f), you agree that you will also indemnify us of the cost and losses that we have incurred including (but not limited to):
      1. any of the aforementioned costs; and
      2. any loss (including revenue loss) arising from the allocation and commitment of our time and resources to your project to the exclusion of other projects; and
      3. the costs associated with rescheduling work to mitigate our losses arising from your termination; and
      4. any costs incurred in recovering the aforementioned costs and losses;
      5. provided that, with the exception of the provision in 13(d), your total liability shall not exceed the total cost (exclusive of GST) of your project as agreed in the Terms of Reference.
    3. You may terminate the Software and Hosting Services (whether these are included in a Terms of Reference or otherwise), at any time, by giving us one (1) month's written notice of termination.
    4. We may terminate the Terms of Reference (including the Software and Hosting Services) on the occurrence of any of the following events:
      1. if you have not paid any Charges within 14 days of the due date for payment, with the exception of any amounts that are the subject of a genuine dispute and which you have previously notified us in writing as being in dispute; or
      2. if in our reasonable opinion, you are using the Services for any unlawful, abusive or fraudulent purpose; or
      3. if you fail to comply with a legal requirement of any of our Carriers concerning your use of the Services; or
      4. if you commit a material breach of the Terms of Reference or these terms or any other agreement between us, when the breach is not reasonably capable of being remedied; or
      5. if you abuse, harass or threaten (including [but not limited to] threats of abuse or retribution or use of any form of cyber-bullying, verbally or in writing) any of our employees, contractors, agents or officers; or
      6. if you have failed to fulfill your obligations under clause 6(a)(i).
    5. We may terminate a Terms of Reference without cause by notice in writing to you at any time. If we exercise our rights under this clause we will promptly repay to you all of the Charges you have paid to us under that Terms of Reference up to the date of termination with the exception of Charges for the Software and Hosting Services and we shall be wholly discharged from any further obligations under the Terms of Reference or these terms. For the avoidance of doubt, in the event of termination pursuant to this clause 13(e):
      1. clause 13(f) shall not apply; but
      2. clause 13(g) shall continue to apply.
    6. Upon termination by you or by us (other than termination by us pursuant to clause 13(e)):
      1. any amounts owing by you to us under the Terms of Reference and these terms must be paid immediately (including, without limitation, any Charges for Software and Hosting Services or any applicable Early Termination Fee); and
      2. if we have agreed to allow you to pay the Charges by instalments then, the whole of the Charges then outstanding and remaining unpaid shall become immediately due and payable, without any demand or other formalities of any kind on our part; and
      3. in addition, in the event that you have failed to fulfil your obligations under clause 6(a)(i), you also agree to pay us any loss or expense suffered by us as a result of your delay or failure to respond, including (but not limited to):
        1. the costs and disbursements incurred by us for unsuccessfully following up with you, repeatedly, regarding our request(s); and
        2. the costs for rescheduling your project to later date(s); and
        3. any costs incurred by us to source and schedule replacement work in order to mitigate our losses as a result of you failing to fulfill your obligations under clause 6(a)(i); and
        4. any other losses arising from the commitment of our time and resources to your project to the exclusion of any other project, including (but not limited to) the loss of the revenue which, but for the cancellation, we would otherwise have received from your project; and
      4. subject to clause 13(g) and without derogating from any of the foregoing provisions in (i)-(iii) (inclusive) above, we will be regarded as wholly discharged from any further obligations or performance under the Terms of Reference or these terms with effect from and on the date of receipt of your written notice of termination.
    7. Termination or cancellation of a Terms of Reference shall not relieve either party from any right, liability, or claim that has accrued on or before the date of termination or cancellation. The provisions of clauses 6(e)-(f), 7, 8, 9(c)-(f), 10, 11, 13 and 14 of these terms will survive termination or cancellation of a Terms of Reference.
  14. Marketing
    1. You agree that we may:
      1. include a reference on the bottom of the homepage (or equivalent) of the Website, crediting the design, development, management, SEO or combination thereof of the Website to indie.web Limited and/or any of our approved suppliers; and
      2. list you in our marketing materials, including on our website; and
      3. from time to time send you emails with articles and information about our organisation and products and services that we think may be of interest to you. You may elect not to receive such emails at any time by clicking the 'unsubscribe' link at the bottom of those emails or by contacting us.
  15. Variation of Terms

    We may amend or replace these terms from time to time. The amended or replacement terms ("Amended Terms") will then apply to the Services. We will post the Amended Terms on our website and and we will communicate these changes to you via email. If you object to the Amended Terms, you may terminate a Terms of Reference by providing us with one month's written notice. You will have accepted the Amended Terms if you make a further request of us to provide Services to you or if you continue to use our Services and do not give us any notice to terminate the Terms of Reference.
  16. Miscellaneous
    1. You agree that the Terms of Reference and these terms comprise the entire agreement between you and us in respect of the Website and the Services and, unless expressly stated in the Terms of Reference, all prior agreements, warranties, representations, written, verbal or otherwise, are excluded and superseded. By accepting the Terms of Reference, you also confirm and acknowledge that you have not been induced to purchase the Website and/or the Services by any representation whether verbal, written or otherwise, made by or on behalf of us which is not expressly set out in the Terms of Reference.
    2. You agree that, with the exception of urgent interlocutory relief in respect of use of Confidential Information or Intellectual Property in breach of these terms, both of us will attempt to resolve any dispute under these terms by negotiating in good faith for at least 14 days.
    3. The failure by us to enforce any provision of these terms shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision. If any provision of these terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    4. If any of your contact details change, you agree to promptly provide us with your new contact details. We will send you notices and other communications to the last known contact details you have given to us.
    5. You warrant that you have the power to enter into this agreement and have obtained all necessary authorisation to allow you do so, that you are not insolvent and that this agreement creates binding and valid legal obligations on you.
    6. You may not assign any rights or obligations under these terms without our prior written consent. We may assign any rights under these terms without obtaining your prior approval. We may also sub-contract any of our obligations under these terms, but in so doing, will not be relieved of any liability to you under these terms.
    7. We may decline your application for the Services (and/or any request for Additional Services) at our discretion and we do not have to disclose our credit criteria or the reasons for our decision.
    8. In the course of providing Services to you, we may, under your instruction, register domains for you on your behalf under our domain reseller account. You will be the registered owner (Registrant) of your domain(s). We will, however, associate any domains with an email address @indieweb.co.nz. This is to ensure that all email communication from the domain registrar, for example, expiry notifications, is received by us. This is an essential and necessary requirement of our Domain Registration & Management Service.
    9. In the course of providing Services to you, we may, with your permission, create a Google Business Profile ("GBP") or claim an existing GBP for you on your behalf. In aid of ease and efficiency, the GBP will be created or claimed under our Google Account and we will become the "owner" of the GBP. At any time and at your request we will provide you with management access and/or transfer ownership of the GBP to your Google Account in accordance with Google Business Profile third-party policies.
    10. These terms and any contract to which they apply, including (but not limited to) the Terms of Reference, shall be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the Courts of New Zealand.
  17. Definitions

    "Acceptable Use Policy" means our current policy on what is and is not acceptable use of the Services as amended by us from time to time. Our Acceptable Use Policy can be found here.

    "Additional Services" means any additional services (not being Software and Hosting Services or Consulting, Administration and Implementation Services or Third Party Provider products or services) that we agree to provide to you.

    "Amended Terms" has the meaning given to it in clause 15.

    "Carriers" means any entity with whom we have entered into an agreement or arrangement (directly or indirectly) providing for the passing of customer-generated or customer-destined internet traffic between us and that entity.

    "Charges" means the charges payable by you to us under the Terms of Reference for the Consulting, Administration and Implementation Services and the Software and Hosting Services set out in the Terms of Reference, and shall include any amount payable in respect of any Project Variation or Additional Services or Third Party Provider products or services.

    "Customer Services" means the indie.web support team, which is contactable by via our contact form or by email or by phone on 0800 46343932.

    "Completion Date" means the date on which we advise you that the Website is ready for the loading of your information and data. For the avoidance of doubt, the Completion Date is not the same as the "go-live" or "website launch" date which may be later in time than the Completion Date.

    "Confidential Information" has the meaning given to it in clause 11(a).

    "Consulting, Administration and Implementation Services" means the website design and development, consulting, administration, implementation and marketing services and more fully described in the relevant Service Brochures or Proposal and includes consulting, design, computer programming, Content Services, administration, training and marketing services for the purpose of creating, customising, improving and promoting the Website.

    "Content Material" means all written copy, images, illustrations, diagrams, photographs, animations, 3D models, sound, music, video or other materials provided to you as part of the Content Services but excluding any elements (in source and object code) which form part of the generic functionality of the Website or any elements (in source and object code) which implement visual features or layouts of the Website and its content, including (but not limited to) the Content Material.

    "Content Services" means any copywriting, illustration, image editing, photography, video production, or other services to provide Content Material as set out in a Terms of Reference.

    "Customisation" means a customisation required by you as described in the Customisation Plan.

    "Customisation Plan" means the plan developed by us in conjunction with you for a Customisation.

    "Discount" means the amount to be deducted from our standard list price or standard hourly rate as part of a Discount Arrangement.

    "Discount Arrangement" means the arrangement referred to in clause 9(c).

    "Early Termination Fee" means the Early Termination fee as defined in the Terms of Reference.

    "Estimated Budget" means the estimated budget for any Services to be provided by us to you on a Time and Materials basis.

    "Fixed Price" has the meaning given to it in clause 9(a)(i)(A).

    "GBP" has the meaning given to it in clause 16(i).

    "Intellectual Property" means all intellectual property as defined in article 2 of the Convention Establishing the World Intellectual Property Organisation of 1967 and, without limitation, includes any discovery, invention, novel or original designs (whether or not registrable as designs or patents), any trademarks or trade names or goodwill rights associated with such, applications for any of the foregoing, the copyright in any copyright works including (but not limited to) any software, drawings, plans, specifications, designs, know-how and trade secrets owned or used, secret process or improvement in procedure.

    "Our IP" has the meaning given to it in clause 7(a).

    "Open Source Software" has the meaning given to it in clause 7(d).

    "Order Form" means our order form signed or completed (as applicable) by you or on your behalf, which specifies the Services you require from us.

    "Project Variation" has the meaning given to it in clause 3.

    "Proposal" means the proposal accepted by you or on your behalf, in respect of the Services, and includes any changes to it which were made at your request.

    "SEO" has the meaning given to it in clause 8(b).

    "Service Brochure means any brochure(s) detailing the Services.

    "Services" means the Consulting, Administration and Implementation Services, the Software and Hosting Services and the Additional Services as described in clause 2.

    "Software and Hosting Services" means the provision of software as a service, ongoing hosting and any other support Services as set out in the Terms of Reference.

    "Special Hourly Rate" means the hourly rate payable by you as set out in the Terms of Reference after deducting the Discount and "Special Rate" has a corresponding meaning.

    "Special Price" means the price payable by you as set out in the Terms of Reference after deducting the Discount.

    "Standard Payment Terms" means the payment terms described in clause 9(b)(i).

    "Subscription Fee" means the monthly or annual fee payable by you to us for the Software and Hosting Services and any other services which you may from time to time request us to provide to you.

    "Support" means advice and guidance provided by us to assist you with using our Software and Hosting Services, Third Party Provider products or services or Additional Services. Support does not include problems with your computer(s) or communication equipment, your software (except for software (if any) provided by us), your personal email address(es) or any email address not provided by us, your phone line or internet connection or anything else not provided or controlled by us. Support does not include Bug Fixing.

    "Terms of Reference" means:
    (a) the Proposal (if any); and
    (b) any Estimated Budget; and
    (c) the Order Form (if any); and
    (d) the Service Brochure (if any) for each Service you have ordered; and
    (e) each agreed Project Variation (if any); and
    (f) the specifications for any Website which forms part of the Services (if any); and
    (g) the Website Plan (if any).

    "Third Party Provider" means any provider of products or services other than us.

    "Time and Materials" has the meaning given to it in clause 9(a)(i)(B).

    "User Content" means any written copy, images, illustrations, diagrams, photographs, animations, 3D models, sound, music, video, documents, presentations, files, data, information, software, code, script, tag, message, interactive feature, or other material that your Website users post, share, upload, submit, or otherwise provide in any manner on or through to the Software and Hosting Services.

    "Warranty Period" has the meaning given to it in clause 5(b).

    "we" or "us" means indie.web Limited and "our" has a corresponding meaning.

    "Website" means the website we create for you as part of the Consulting, Administration and Implementation Services.

    "Website Plan" means the website plan prepared by us in conjunction with you in respect of the Website.

    "you" means the customer under the Terms of Reference and "your" has a corresponding meaning.

    "Your Material" has the meaning given to it in clause 6(c).