1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “HiHo” means Live Longer Limited T/A HiHo, its successors and assigns or any person acting on behalf of and with the authority of Live Longer Limited T/A HiHo.
1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting HiHo to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
(c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Customer’s executors, administrators, successors and permitted
1.4 “Services” means all Products (which includes any content, files, information, printed or virtual material, data, hardware, software or applications (whether supplied from a third party software development company or where custom developed or programmed for the Customer), brands, designs, images, graphics, pictures, trademarks, manuals, and other associated documentation and/or goods, accessories or parts) or Services (which includes any advice or recommendations, consultancy, hosting (which includes virtual server hosting, website hosting, e-mail hosting, etc.), monitoring, data back-up or storage, design and/or website maintenance, brands, designs, project management work, brand integration, strategising and analytical services, technical service, support and training, repairs, or installation of Products, etc.) supplied by HiHo to the Customer, at the Customer’s request, from time to time (where the context so permits the terms ‘Products’ or ‘Services’ shall be interchangeable for the other).
1.5 “Web Site” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
1.6 “Prohibited Content” means any content on any advertising media that:
(a) is, or could reasonably be considered to be, in breach of the Broadcasting Xxx 0000; the Fair Trading Xxx 0000; or any other applicable law or applicable industry code; or
(b) 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
(c) is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights (including, but not limited to, the distribution of music files or any other material in which the Customer does not own the copyright).
1.7 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.8 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when ordering from the website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Products or Services via the website.
1.9 “Charges” means the Charges payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between HiHo and the Customer in accordance with clause 5 below and shall be in New Zealand dollars ($NZ), unless otherwise specified.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for, or accepts Services provided by HiHo.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Customer acknowledges that the supply of Products on credit shall not take effect until the Customer has completed a credit application with HiHo and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Products request exceeds the Customers credit limit and/or the account exceeds the payment terms, HiHo reserves the right to refuse delivery.
2.6 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on HiHo’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
2.7 None of HiHo’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of HiHo in writing nor is HiHo bound by any such unauthorised statements.
2.8 Once accepted by the Customer, HiHo’s quotation shall be deemed to interpret correctly the Customer’s instructions, whether written or verbal. Where verbal instructions only are received from the Customer, HiHo shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
2.9 Any advice, recommendations, information, assistance or service provided by HiHo in relation to Services provided is given in good faith, is based on information provided to HiHo, and HiHo’s own knowledge, and experience. Whilst it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Services, human error is possible under these circumstances, and HiHo shall make all effort to offer the best solution to the Customer.
2.10 The Customer accepts and acknowledges that copyright is retained by HiHo on all design work and other Services provided by HiHo including text, images, ideas, visuals and illustrations unless specifically released in writing and after all costs have been settled.
2.11 This Contract constitutes the entire Contract between HiHo and the Customer, and the Customer hereby acknowledges that no reliance is placed on any representation made by HiHo, but not embodied in this Contract.
2.12 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 Xxx 0000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Change in Control
3.1 The Customer shall give HiHo 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 and contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by HiHo as a result of the Customer’s failure to comply with this clause.
4. Charges and Payment
4.1 At HiHo’s sole discretion the Charges shall be either:
(a) as indicated on any invoice provided by HiHo to the Customer; or
(b) HiHo’s quoted price (subject to clause 4.3) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days;
(c) as per HiHo’s set non-refundable monthly Charges for the Services (“Plan”), which
will be as stipulated (including when due and payable) by HiHo in the Plan.
4.2 A copy of the written estimate or quotation is to be signed and dated by the Customer to indicate acceptance and should be returned to HiHo. As an alternative, the Customer may send an official order for the Services via email in reply to the estimate or quotation which will imply the Customer’s acceptance of HiHo’s terms and conditions. The Customer accepts that no work will be commenced until acceptance has been supplied to HiHo as per this clause.
4.3 Additional and/or Varied Services:
(a) HiHo agrees that there will be no charge in the preparation of the initial quotation, which may include Customer discussions, project scoping, research, testing and business analysis, etc. However, in some instances the aforementioned services may be charged to the Customer additionally (at HiHo’s sole discretion). In the event the Customer requires proofs, mock-ups, layouts, samples or dummies or printed, typewritten or other good copy and/or edits, this shall be invoiced at HiHo’s hourly rate unless specified otherwise in the initial quotation, therefore, this variation shall be detailed on the invoice as per sub-clause (g);
(b) All work carried out whether experimentally or otherwise at the Customer’s request will be charged to the Customer;
(c) 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 Customer and shown as extras on the invoice;
(d) Unless otherwise agreed, the Customer shall bear the cost of fonts, or colour proofs, or artwork, specially bought at the Customer’s request for the job;
(e) Where the performance of any Contract with the Customer requires HiHo to obtain products and/or services from a third party, the Contract between HiHo and the Customer shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to HiHo, and the Customer shall be liable for the cost in full including HiHo’s margin of such products and/or services;
(f) Whilst every effort will be taken by HiHo to match virtual colours with physical colours, HiHo will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Customer’s computer and/or the final product. Should a physical sample be required this will be provided on request by the Customer and will be charged for as an extra and charged contra against final invoice;
(g) HiHo reserves the right to amend the Charges where there is any variation to the accepted plan of scheduled Services, or instructions/specifications, which will be charged for on the basis of HiHo’s standard hourly rates (and double such rate for any Services provided outside HiHo’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;
(h) As a result of increases beyond HiHo’s reasonable control in the cost of materials or labour (e.g. third-party network operator or HiHo’s costs (e.g. google) or fluctuations in currency exchange rates, etc.). Where the Customer is on a Plan, HiHo will provide one (1) month’s written notice to the Customer of any variation to the Charges thereof;
(i) The Customer acknowledges that all Services and support for email are chargeable in addition to the Charges;
(j) HiHo shall not be held responsible for any amendments made by any third party before or after a design in published.
4.4 At HiHo’s sole discretion a deposit may be required.
4.5 Time for payment for the Services being of the essence, the Charges will be payable by the Customer on the date/s determined by HiHo, which may be:
(a) on completion of the Services;
(b) by way of instalments/progress payments in accordance with HiHo’s payment schedule;
(c) for certain approved Customer’s, due twenty (20) days following the end of the month
in which a statement is posted to the Customer’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by HiHo.
4.6 The Customer shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to the Customer by HiHo nor to withhold payment of any invoice because part of that invoice is in dispute.
4.7 Unless otherwise stated the Charges does not include GST. In addition to the Charges, the Customer must pay to HiHo an amount equal to any GST HiHo must pay for any supply by HiHo under this or any other agreement for the sale of the Products. 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 Charges. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Charges except where they are expressly included in the Charges.
5. Provision of the Services
5.1 Any time specified by HiHo for provision of the Services is an estimate only and HiHo will not be liable for any loss or damage incurred by the Customer as a result of provision being late. However both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that HiHo is unable to provide the Services as agreed solely due to any action or inaction of the Customer, then HiHo shall be entitled to:
(a) charge the Customer additionally for re-providing the Services at a later time and date; or
(b) subject to clause 21.3, terminate the Contract.
6. Product Specifications
6.1 The Customer acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in HiHo’s or manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by HiHo.
6.2 The Customer shall be responsible for ensuring that the Products ordered are suitable for their intended use.
7. Design Concepts and Projects
7.1 HiHo shall provide an initial design concept for branding a business for the Customer’s consideration. Additional designs can be offered by HiHo which would be at an extra cost to the Customer.
7.2 Any indication provided by HiHo 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 HiHo.
7.3 HiHo shall not be responsible for any project over-runs regardless of the cause.
7.4 HiHo considers that the design project is accepted upon receipt of the Customer’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 HiHo or contracted on the Customer’s behalf shall constitute a separate project and can be treated as a separate charge.
8. Web Site Development
8.1 HiHo’s Responsibilities:
(a) Upon acceptance of HiHo’s quotation, and in accordance with this Contract, HiHo will:
(i) use its best endeavours to develop the Web Site in accordance with the Customer’s instructions and specifications; and
(ii) to the extent specified in the Customer’s instructions and specifications,
negotiate and procure any third-party agreements on behalf of the Customer.
(b) The Customer acknowledges that the development of the Web Site by HiHo is based upon current technology platforms (e.g. internet browsers, mobile, android, etc.), and therefore HiHo 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.
8.2 Customer’s Responsibilities:
(a) The Customer will, in addition to any other obligations expressed in this Contract, have the following responsibilities:
(i) provision of all content (including data, logos, designs and/or graphic and related materials) to be incorporated into the Web Site;
(ii) provision of any other information, ideas or suggestions which are to be expressly considered by HiHo in developing the Web Site.
(b) The Customer will ensure that HiHo is given such information and assistance (including access to computer systems and other locations to complete a branding project) as HiHo reasonably requires to enable HiHo to construct and maintain the Web Site.
(c) Subject to clause 20.3, the Customer shall supply access to any computer system, usernames and passwords required to remove data and/or sites for failure to comply with these terms and conditions.
(d) It shall be the Customer’s responsibility to ensure that any specific requirements they may have for mobile web browsers is included in the brief, as, unless otherwise specified therein, the choice of web browsers and technology used in the development of the Web Site shall be at the sole discretion of HiHo. In the event that additional Services are requested, or required (as per clause 8.1(b)), in order to meet any specific requirements for mobile web browsers, after HiHo 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 Customer for approval before proceeding with the variation work.
(e) HiHo will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Web Site which is attributable to:
(i) incorrect information provided by the Customer, either pursuant to this clause or otherwise; or
(ii) failure by the Customer to provide relevant information, either pursuant to this clause or otherwise; or
(iii) any third-party products and/or services used by HiHo in creation of the Web Site.
8.3 Proof Reading:
(a) Whilst every care is taken by HiHo to carry out the instructions of the Customer, it is the Customer’s responsibility to undertake proof reading and provide feedback (where necessary). HiHo shall be under no liability whatsoever for any errors not corrected by the Customer during the proof reading stages, and:
(i) should the Customer’s alterations require additional proofs this shall be invoiced as an extra;
(ii) if, at any stage the Customer is unhappy with the direction the Services are taking, the Customer can cancel this Contract and pay HiHo for work completed up to that date of cancellation.
(b) When style, type or layout is left to HiHo’s judgement and the Customer makes further alterations, this will be invoiced as an extra.
(c) HiHo 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 HiHo via email.
(d) Should the Customer fail to notify HiHo in writing of any amendments within fourteen
(14) days from the commencement of the review period, HiHo shall deem that the original draft as being acceptable.
8.4 Customer’s Property and Materials:
(a) Graphic files should be supplied in an editable, vector digital format and photographs in a high resolution digital format. If the Customer chooses to purchase stock photographs, HiHo can suggest stock libraries.
(b) In the case of property and materials left with HiHo without specific instructions, HiHo 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.
(c) Where materials or equipment are supplied by the Customer, HiHo accepts no responsibility for imperfect work caused by defects in or unsuitability of such materials or equipment.
(a) Subject to sub-clause (b), HiHo will provide the Maintenance Services in accordance with the maintenance terms set out in HiHo’s maintenance schedule.
(b) The Customer will procure all necessary authorisations, licences and consents to enable HiHo to have access to the Web Site in order to provide the Maintenance Services.
9. Hosting Services
9.1 “Live Date” means the date in which HiHo provides the Hosting Services as per initial acceptance of HiHo’s quotation.
9.2 Hosting Services shall only be used by the Customer for lawful purposes. Any use which violates any applicable national or international laws is strictly prohibited (e.g. posting or transmitting any unlawful, threatening, abusive, libellous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind – including, but not limited to, any transmission constituting or encouraging conduct that would constitute a criminal offense or give rise to civil liability).
9.3 Hosting Services exclude domain registrations and SSL Certificates, and where the Customer is changing from another hosting provider the install and set-up of the Web Site on HiHo’s webservers, which shall be charged to the Customer additionally.
9.4 HiHo will, at its sole cost and expense:
(a) host the Web Site on HiHo’s webservers;
(b) ensure that from the Live Date:
(i) sufficient capacity is maintained on HiHo’s webserver to enable users access to the Web Site in a timely manner;
(ii) the Web Site is accessible to users in accordance with the agreed service levels (subject to reasonable downtime for server maintenance which has been notified to the Customer prior to the commencement of the downtime or (where applicable) Maintenance in accordance with clause 9.8);
(c) provide the Customer with reasonable access to the Web Site to perform maintenance services.
9.5 HiHo will not:
(a) alter or amend, or permit any person to alter or amend the Web Site without the written consent of the Customer;
(b) post or display on the Web Site any advertisement, sponsorship or promotion without the written consent of the Customer;
(c) use any user data for marketing, referral or other purposes except as expressly authorised by this Contract;
(d) sub-licence, rent, time-share, lease, lend or grant any rights to use the Web Site; or
(e) assign, transfer or authorise anyone else to exercise the rights in any licence granted pursuant to this Contract.
9.6 HiHo will make best efforts to ensure that the Customer receives continual and uninterrupted Services (including network or hosting servers) during the term of this Contract, however HiHo does not in any way warrant or otherwise guarantee the availability of the Services, which shall be subject to regularly scheduled maintenance cycles, and many events/circumstances beyond the control of HiHo. In no event though, shall HiHo be liable to the Customer for damages (including loss of income) resulting from or in relation to any failure or delay (including server downtime, programming errors, lack of connection or slow connection) of HiHo to provide Services under this Contract, or any loss of data, if such delays or failures are due to circumstances beyond our control. Such a failure or delay shall not constitute a default under this Contract.
9.7 HiHo may, at their sole discretion, limit or deny access to the Services is, in the judgement of HiHo, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network.
9.8 Web Site Maintenance Services:
(a) Subject to clause (b), HiHo will provide the Web Site Maintenance Services in accordance with the maintenance terms set out in HiHo’s maintenance schedule.
(b) The Customer will procure all necessary authorisations, licences and consents to enable HiHo to have access to the Web Site in order to provide the Maintenance Services.
9.9 Customer’s Obligations:
(a) The Customer will, at its sole cost and expense:
(i) subject to any Contract with HiHo for Web Site Development, develop and maintain the Web Site;
(ii) provide the content to HiHo, in such form as reasonably prescribed by HiHo from time to time, and hereby grants HiHo a non-exclusive, worldwide, irrevocable licence to use such content for the purposes of hosting the Web Site;
(iii) do all things reasonably necessary to enable HiHo to host the Web Site on HiHo’s webserver;
(iv) change the type of hosting account used if that account is deemed by HiHo to be unacceptable because of poor service, lack of bandwidth or in any other way insufficient to support the Web Site;
(v) is responsible for any fees payable and due to previous hosting organisations engaged by the Customer;
(vi) ensure that content supplied to HiHo do not contain Prohibited Content, a link to any web site that contains Prohibited Content, or any viruses, trojan horses, worms, time bombs, cancel bots or any other software program or routine designed for or capable of interfering with the operation of the Hosting Services.
(b) The Customer will not:
(i) logon to an account that the Customer is not authorised to access;
(ii) access data or take any action to obtain services not intended for the Customer;
(iii) attempt to probe, scan or test the vulnerability of any system, subsystem or network;
(iv) tamper, hack, modify or otherwise corrupt or breach security or authenticity measures without proper authorisation;
(v) transmit any material outlined in clause 9.9(a)(vi);
(vi) do anything that prevents or hinders HiHo from providing Hosting Services to any other person.
(c) The Customer acknowledges that spamming (i.e. the sending of unsolicited email), email address cultivation, or any unauthorised collecting of email addresses without prior notification of the email address owner is strictly prohibited.
9.10 Network Traffic:
(a) Network traffic shall be measured by HiHo and may include all forms of traffic to and from the Web Site. HiHo reserve the right to suspend Hosting Services (at any time and without notice to the Customer) for what it deems to be excessive traffic usage.
9.11 Limitation of Liability for Hosting Services
(a) in consideration of clause 26.3, in the event the Hosting Services provided to the Customer are disrupted or malfunction for any reason, HiHo’s liability shall be limited to damages which under no circumstances shall exceed the amount due and payable by the Customer to HiHo for the Hosting Services during the period of disruption or malfunction.
10. Search Engine Optimisation (SEO)
10.1 Although HiHo shall use their knowledge and experience to gain the best results possible, HiHo gives no guarantee of the quality of visitor or the position / page rank or volume of visits to the Web Site, or warranty that the Web Site will be effective in promoting the Customer’s business or result in any increase in sales of the products/services of the Customer. Periodic reporting will be sent to the Customer’s nominated email address, at the sole discretion of HiHo.
11. Domain Registration
11.1 Where HiHo is to register a domain name on the Customer’s behalf, HiHo cannot guarantee the availability of the domain name, nor assume a successful registration or such a name.
12. Risk and Limitation of Liability for Customer Data
12.1 The Customer shall provide HiHo with data in the following formats:
(a) for text, files shall be in an electronic format as standard text (.txt) or Work (.doc) on a USB, CD-ROM or via email;
(b) for imaged, in an electronic format as prescribed by HiHo 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. HiHo shall not be responsible for the quality of images scanned from printed materials;
(c) additional expenses may be charged to the Customer for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing or data entry services.
12.2 The Customer acknowledges and agrees that HiHo shall not be held responsible or liable for:
(a) anything related to the Web Site, Hosting Services or any other Services provided;
(b) any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of HiHo;
(c) any loss, corruption, or deletion of files or data (including, but not limited to software programmes) resulting from illegal hacking or Services provided by HiHo. Whilst HiHo will endeavour to restore the Web Site, files or data (at the Customer’s cost), it is the sole responsibility of the Customer to back-up any data which they believe to be important, valuable, or irreplaceable prior to HiHo providing the Services. The Customer accepts full responsibility for the Customer’s software and data and HiHo is not required to advise or remind the Customer of appropriate backup procedures (unless included as part of the Services);
(d) any loss or damage to the Customer’s software or hardware caused by any ‘updates’
provided for that software.
12.3 HiHo, its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Customer or any person related to or dealing with the Customer out of, in connection with or reasonably incidental to the provision of the Services by HiHo to the Customer.
12.4 The Services are provided on an “as is, as available” basis. HiHo specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.
12.5 Public Access:
(a) The Customer understands that by placing information on the Web Site, such information may be accessible to all internet users. HiHo does not (unless expressly requested by the Customer) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity. The Customer assumes full responsibility for their use of the Services, and it is the Customer’s sole responsibility to evaluate the accuracy, completeness and usefulness or all opinions, advice, services, and other information, and the quality and merchantability of all Services provided by HiHo, or on the internet generally.
13. Defects, Errors, Omissions and Warranty
13.1 The Customer shall inspect the Products on delivery and shall within five (5) days of delivery (time being of the essence) notify HiHo of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford HiHo an opportunity to inspect the Products within a reasonable time following delivery if the Customer believes the Products are defective in any way. If the Customer shall fail to comply with these provisions the Products shall be presumed to be free from any defect or damage. For defective Products, which HiHo has agreed in writing that the Customer is entitled to reject, HiHo’s liability is limited to either (at HiHo’s discretion) replacing the Products or repairing the Products.
13.2 Products will not be accepted for return other than in accordance with 13.1 above, and provided that:
(a) HiHo has agreed in writing to accept the return of the Products; and
(b) the Products are returned at the Customer’s cost within ten (10) days of the delivery
(c) HiHo will not be liable for Products which have not been stored or used in a proper manner; and
(d) the Products are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
13.3 HiHo will not accept the return of Products for credit.
13.4 For defective Services, which HiHo has agreed in writing that the Customer is entitled to reject, HiHo’s liability is limited to either (at HiHo’s discretion) replacing the Services or rectifying the Services, provided that the Customer has complied with the provisions of clause 13.1.
13.5 For Products not manufactured by HiHo, the warranty shall be the current warranty provided by the manufacturer of the Products. HiHo shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Products.
14. Protection of Reputation
14.1 Any misuse, misrepresentation or any other action that negatively impacts the Provider’s brand which is deemed to damage and/or tarnish the reputation of the Provider’s brand, the Customer must cease and desist from such misuse, misrepresentation or other action immediately on receipt of a written notice from the Provider to this effect.
15.1 HiHo and the Customer agree that the Customer’s obligations to HiHo for the supply of Services shall not cease (and ownership of any Products shall not pass) until:
(a) the Customer has paid HiHo all amounts owing to HiHo for the Services; and
(b) the Customer has met all other obligations due by the Customer to HiHo in respect of all contracts between HiHo and the Customer.
15.2 Receipt by HiHo 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 HiHo’s ownership or rights in respect of the Services, and this Contract, shall continue.
15.3 It is further agreed that, until ownership of the Products passes to the Customer in accordance with clause 15.1:
(a) the Customer is only a bailee of the Products and must return the Products to HiHo on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Products on trust for HiHo and must pay to HiHo the proceeds of any insurance in the event of the Products being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Products other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Products then the Customer must hold the proceeds of any such act on trust for HiHo and must pay or deliver the proceeds to HiHo on demand.
(d) the Customer should not convert or process the Products or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of HiHo and must sell, dispose of or return the resulting product to HiHo as it so directs.
(e) the Customer irrevocably authorises HiHo to enter any premises where HiHo believes the Products are kept and recover possession of the Products.
(f) HiHo may recover possession of any Products in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Products nor grant nor otherwise give away any interest in the Products while they remain the property of HiHo.
(h) HiHo may commence proceedings to recover the Charges notwithstanding that ownership of the Products has not passed to the Customer.
16. Personal Property Securities Xxx 0000 (“PPSA”)
16.1 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Products and/or all collateral (account) – being a monetary obligation of the Customer for the Services – that have previously been provided, and that will be provided in the future, by HiHo to the Customer.
16.2 The Customer undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which HiHo may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, HiHo for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made thereby;
(c) not register a financing change statement or a change demand without the prior written consent of HiHo.
16.3 HiHo and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
16.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
16.5 Unless otherwise agreed to in writing by HiHo, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
16.6 The Customer shall unconditionally ratify any actions taken by HiHo under clauses 16.1 to 16.5.
17.1 In consideration of HiHo agreeing to provide the Products/Services, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
17.2 The Customer indemnifies HiHo from and against all HiHo’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising HiHo’s rights under this clause.
17.3 The Customer irrevocably appoints HiHo and each director of HiHo as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of
this clause 17 including, but not limited to, signing any document on the Customer’s behalf.
18. Intellectual Property and Confidentiality
18.1 Where HiHo has designed, drawn or developed Services (including the Web Site) for the Customer, HiHo retains full intellectual property ownership of the Services, including the copyright in any designs and drawings and documents, and HiHo hereby grants to the Customer an irrevocable, non-exclusive and non-transferable licence to use the Services solely in relation to the operation of the Customer’s own business, conditional upon the Customer fulfilling their obligations under this Contract (including, but not limited to, the full payment of the Charges).
18.2 Subject to the Copyright Xxx 0000 and the conditions therein, where HiHo or their subcontractor has provided the Customer with a licence for use on any design, copy, writing, drawing, image, illustration, idea or code created for the Customer, the licence shall be for use by the Customer on a one-time only basis and may not be modified, re- used, or re-distributed in any way or form without the express permission of HiHo and any of its relevant subcontractors.
18.3 All design work where there is a risk that another party makes a claim, should be registered by the Customer with the appropriate authorities prior to publishing or first use or searches and legal advice sought as to its use. HiHo shall not be held responsible for any or all damages resulting from such claims.
18.4 The Customer hereby authorises HiHo to utilise images of the Services created by HiHo in advertising, marketing, or competition material by HiHo including, but not limited to:
(a) the Customer permitting HiHo to place a small credit on printed material, exhibition displays, advertisement and/or link to HiHo’s own web site on the Customer’s Web Site, which shall usually be in the form of a small logo or line of text placed towards the bottom of the page;
(b) allowing HiHo to place web sites and other designs, along with a link to the Customer’s Web Site on HiHo’s own web site for demonstration purposes and to use any designs in HiHo’s own publicity.
18.5 The Customer shall indemnify HiHo against any claims by third parties for patent, trademark, design or copyright infringement, directly or indirectly arising out of the design, workmanship, material, construction, or use of the Services or any other deficiency therein. Where the Customer has supplied drawings, sketches, files or logo’s to HiHo, the Customer warrants that the drawings, sketches, files or logo’s do not breach any patent, trademark, design or copyright, and the Customer agrees to indemnify HiHo against any action taken by a third party against HiHo.
18.6 Notwithstanding anything herein, the Intellectual Property Rights in HiHo’s Services do not vest in the Customer and there is no assignment of these Intellectual Property Rights to the Customer. HiHo hereby grants to the Customer an irrevocable, non-exclusive and non-transferable licence to use and reproduce the Services for the purposes of this Contract only, and solely for the operation of the Customer’s business however, the Customer shall not use nor make copies of such Intellectual Property in connection with any work or business other than the work or business specified in writing to HiHo unless express approval is given in advance by HiHo. Such license shall terminate on default of payment or any other terms of this Contract by the Customer.
18.7 All Flash, PHP, Java Script, HTML and Dynamic HTML coding and other supplied code (if any) remains the intellectual property of HiHo. Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright.
18.8 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.
19. Consumer Xxxxxxxxxx Xxx 0000
19.1 If the Customer is acquiring Services for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Xxxxxxxxxx Xxx 0000 do not apply to the supply of Services by HiHo to the Customer.
20.1 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 HiHo’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
20.2 If the Customer owes HiHo any money the Customer shall indemnify HiHo from and against all costs and disbursements incurred by HiHo in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, HiHo’s collection agency fees, and bank dishonour fees).
20.3 Further to any other rights or remedies HiHo may have under this contract, if a Customer has made payment to HiHo, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by HiHo under this clause 20 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
20.4 Without prejudice to any other remedies HiHo may have, if at any time the Customer is in breach of any obligation (including those relating to payment, whether or not the payment is due to HiHo) HiHo may suspend or terminate the provision of Services to the Customer, (this includes but is not restricted to, withholding domain codes, passwords and Products, and/or blocking or restricting public and Customer access to the Web Site, or removing the Web Site from the web completely) and any of its other obligations under the terms and conditions. HiHo will not be liable to the Customer for any loss or damage the Customer suffers because HiHo has exercised its rights under this clause.
20.5 Without prejudice to HiHo’s other remedies at law HiHo shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to HiHo shall, whether or not due for payment, become immediately payable if:
(a) any money payable to HiHo becomes overdue, or in HiHo’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer has exceeded any applicable credit limit provided by HiHo;
(c) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
21. Cancellation and Termination
21.1 HiHo may cancel these terms and conditions or cancel provision of the Services at any time before the Services are provided by giving written notice. HiHo shall not be liable for any loss or damage whatever arising from such cancellation.
21.2 In the event that the Customer may cancel provision of the Services. In the event that the Customer cancels provision of the Services the Customer shall be liable for any costs incurred by HiHo (including, but not limited to, loss of profit) up to the time of cancellation.
21.3 Where the Customer cancels an order:
(a) the initial notification may be by telephone or email but must be confirmed in writing within fourteen (14) days;
(b) the Customer shall be invoiced for all work completed over and above the non- refundable deposit as per clause 4.4;
(c) where failure clause 21.3(a) occurs, the Customer shall be required to pay the full quoted cost of the Services.
21.4 Should the Customer, for any reason, cause the Services to be delayed for more than three (3) months after the acceptance date, this Contract will be terminated by HiHo (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.
21.5 If the Customer fails to comply with any of the provisions of this Contract and does not rectify such non-compliance within seven (7) days of HiHo giving notice either in writing, via fax or email, then HiHo may without prejudice to any other rights or remedies, and without being liable to the Customer for any loss or damage that may result, give notice to the Customer terminating their right to use the Web Site, Software and Services. Upon termination of the Contract, the Customer shall lose all right to use the Web Site and products, and shall forthwith deliver the Products to HiHo and destroy all copies made. The Customer shall certify in writing that the copies have been destroyed.
21.6 Upon termination of this Contract, HiHo will immediately delete all files and content relating to the Customer and the Services provided thereto.
21.7 It is the Customer responsibility to make arrangements for the transfer of their data prior to the termination date. HiHo accepts no liability for any loss or damage incurred by the Customer as a result of the deletion of such data.
21.8 In the event the Services are terminated as per clauses 21.3 or 21.5, 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.
21.9 Fixed Term Contracts
(a) Where this contract relates to a fixed term contract, all payments shall fall due as per the payment schedule. To terminate the fixed term contract on, or after, the current annual term, the Customer must give HiHo not less than twenty (20) working days’ notice prior to the current anniversary date of this Contract. The Services will then terminate at the end of the then current annual term. If the Customer does not terminate the Services on expiry of the current annual term, the Services shall revert to a month-by-month basis charge until otherwise agreed by both parties. Any additional Services shall become due and payable until notice (as herein) is received.
confidential. HiHo acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Xxx 0000 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). HiHo acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by HiHo that may result in serious harm to the Customer, HiHo will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
22.2 Notwithstanding clause 22.1, privacy limitations will extend to HiHo in respect of Cookies where transactions for purchases/orders transpire directly from HiHo’s website. HiHo agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to HiHo when HiHo sends an email to the Customer, so HiHo
may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via HiHo’s website.
22.3 The Customer authorises HiHo or HiHo’s agent to:
(a) access, collect, retain and use any Personal Information about the Customer;
(i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose Personal Information about the Customer, whether collected by HiHo from the Customer directly or obtained by HiHo from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
22.4 Where the Customer is an individual the authorities under clause 22.3 are authorities or consents for the purposes of the Privacy Xxx 0000.
22.5 The Customer shall have the right to request HiHo for a copy of the Personal Information about the Customer retained by HiHo and the right to request HiHo to correct any incorrect Personal Information about the Customer held by HiHo.
23. Service of Notices
23.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) 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;
(e) if sent by email to the other party’s last known email address.
23.2 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.
24.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not HiHo may have notice of the Trust, the Customer covenants with HiHo as follows:
(a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
(b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
(c) the Customer will not without consent in writing of HiHo (HiHo will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Customer as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
25. Dispute Resolution
25.1 HiHo and the Customer will negotiate in good faith and use their reasonable efforts to settle any dispute that may arise out of, or relate to, this Contract, or any breach thereof. If any such dispute cannot be settled amicably through ordinary negotiations, the dispute shall be referred to the representatives nominated by each party who will meet in good faith in order to attempt to resolve the dispute. Nothing shall restrict either party’s freedom to commence legal proceedings to preserve any legal right or remedy or protect and proprietary or trade secret right.
26.1 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.
26.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Auckland Courts of New Zealand.
26.3 HiHo shall be under no liability whatsoever to the Customer for any expenses, claims, costs (including but not limited to legal fees and commissions), damages suffered or incurred by HiHo, or indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by HiHo of these terms and conditions, caused by any failure by the Customer to comply with their obligations under this Contract, or that arise from any claim relating to the Services by any person that the Customer authorises to use the Services, or where due to server downtime or programming errors (alternatively HiHo’s liability shall be limited to damages which under no circumstances shall exceed the Charges).
26.4 HiHo may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
26.5 The Customer cannot licence or assign without the written approval of HiHo.
26.6 HiHo may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of HiHo’s sub-contractors without the authority of HiHo.
26.7 The Customer agrees that HiHo may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for HiHo to provide Products and/or Services to the Customer.
26.8 Neither party shall be liable for any default due to fires, explosions, severe weather, industrial disputes, insurrection, requirements or regulations, or any civil or military authority, acts of war (whether declared or not), civil unrest, acts of God, earthquake, flood, riot, embargo, government act, strike, lock-out, storm, terrorism, or failure or outage of any telecommunications links or other connections forming part of the Internet which are beyond the reasonable control of either party.
26.9 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.