Project work

1. Definitions

1.1Contract” 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 “SeventyTwo Digital” means SeventyTwo Digital Limited, its successors and assigns.

1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting SeventyTwo Digital to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:

1. if there is more than one Client, is a reference to each Client jointly and severally; and
2. if the Client is a partnership, it shall bind each partner jointly and severally; and
3. if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
4. includes the Client’s executors, administrators, successors and permitted assigns.

1.4 “Services” means all Services (which includes any advice or recommendations, consultancy, website design, hosting, application and/or maintenance, brand integration, information technology, marketing, research, strategising and analytical services, support etc.) and/or Goods (including copy, website content and/or development, blogs, any printed or virtual material, samples, brands, designs, images, advertising, publications, data, graphics, pictures, trademarks, Software, applications, manuals, and other associated documentation and/or goods) provided by SeventyTwo Digital to the Client, at the Client’s request, from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.5 “Software” shall mean the programs and other operating information (including documentation) used by a computer.

1.6 “Website” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.

1.7 “SNT” means any Social Network Tool being a social media platform and/or application which is accessible on the internet through the World Wide Web and which provides multimedia content via a graphical user interface (including, but not limited to Facebook, Twitter, LinkedIn, Pininterest, etc.).

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 Client does not wish to allow Cookies to operate in the background when using SeventyTwo Digital’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website. 

1.9 “Prohibited Content” means any content that:

1. is, or could reasonably be considered to be, in breach of the broadcasting standards or any other applicable law or applicable industry code; 
2. contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
3. is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights.

1.10 “Price” or “Fee” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between SeventyTwo Digital and the Client in accordance with clause 6 below.

 

2. Acceptance

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.

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 Client acknowledges that:

1. in the event that the supply of Goods requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, SeventyTwo Digital reserves the right to refuse delivery;
2. the Client shall provide to SeventyTwo Digital any and all documents, permits, approvals, sign off’s and any other information required by SeventyTwo Digital; 
3. the Client shall provide to SeventyTwo Digital the security (if any) requested by SeventyTwo Digital; 
4. no intellectual property (including, but not limited to, login credentials etc.) will be transferred to the Client unless all amounts owing to by SeventyTwo Digital are paid; 
5. where colour matching is required, the Client agrees to supply information and samples regarding the correct colour; 
6. SeventyTwo Digital reserves the right not to undertake any Services, refuse to accept any content supplied by the Client, withdraw any advertisement or publication at any time for any reason (including where such, in SeventyTwo Digital’s opinion is or may be unlawful, offensive, contains Prohibited Content, does not comply with clause 11.1, or is otherwise inappropriate), and SeventyTwo Digital shall not be liable to the Client for any such action; and

2.5 SeventyTwo Digital reserves the right to change any of the terms and conditions displayed on their Website and/or associated Websites (including their Privacy Policy) at any time by notifying the Client through the respective Websites and/or by disclosing such to the Client in writing for any subsequent future contracts. The Client’s continued use of SeventyTwo Digital’s Website/s, or otherwise at such time as the Client makes a further request for SeventyTwo Digital to provide Goods or Services to the Client, shall be deemed acceptance of the terms and conditions which takes effect from that date. 

2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

3. Authorised Representatives

3.1 Unless otherwise limited as per clause 3.2 the Client agrees that should the Client introduce any third party to SeventyTwo Digital as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Services on the Client’s behalf and/or to request any variation to those Services on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies SeventyTwo Digital in writing that said person is no longer the Client’s duly authorised representative).

3.2 In the event that the Client’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise SeventyTwo Digital in writing of the parameters of the limited authority granted to their representative. 

3.3 The Client specifically acknowledges and accepts that they will be solely liable to SeventyTwo Digital for all additional costs incurred by SeventyTwo Digital (including SeventyTwo Digital’s profit margin) in providing any Services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).

 

4. Errors and Omissions

4.1 The Client acknowledges and accepts that SeventyTwo Digital shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

1. resulting from an inadvertent mistake made by SeventyTwo Digital in the formation and/or administration of this Contract; and/or
2. contained in/omitted from any literature (hard copy and/or electronic) supplied by SeventyTwo Digital in respect of the Services.

4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of SeventyTwo Digital; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid. 

 

5. Change in Control

5.1 The Client shall give SeventyTwo Digital not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address and contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by SeventyTwo Digital as a result of the Client’s failure to comply with this clause.

 

6. Price and Payment

6.1 At SeventyTwo Digital’s sole discretion the Price shall be either:

1. as indicated on any invoice provided by SeventyTwo Digital to the Client; or
2. the Price as at the date of Delivery of the Goods according to SeventyTwo Digital’s current price list; or
3. SeventyTwo Digital’s quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

6.2 SeventyTwo Digital reserves the right to change the Price where:

1. SeventyTwo Digital agrees that there will be no charge in the preparation of the initial quotation, which may include Client discussions, project scoping, research, testing and business analysis, etc. however, in some instances the aforementioned services may be charged to the Client additionally (at SeventyTwo Digital’s sole discretion). In the event the Client requires proofs, mock-ups, layouts, samples or dummies or printed, typewritten or other good copy and/or edits, this shall be invoiced at SeventyTwo Digital’s hourly rate unless specified otherwise in the initial quotation, therefore, this variation shall be detailed on the invoice as per sub-clause (g); 
2. quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other copy, any extra work or cost caused by any variation by the Client of their original instructions or by the copy being, in SeventyTwo Digital’s opinion, poorly prepared, or by the Client’s requirements being different from those originally submitted or described; 
3. all work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client; 
4. any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice; 
5. unless otherwise agreed, the Client shall bear the cost of fonts, colour proofs, or artwork, specially bought at the Client’s request for the job; 
6. the performance of any contract with the Client requires SeventyTwo Digital to obtain products and/or services from a third party, the Contract between SeventyTwo Digital and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to SeventyTwo Digital, and the Client shall be liable for the cost in full including SeventyTwo Digital’s margin of such products and/or services; or
7. every effort will be taken by SeventyTwo Digital to match virtual colours with physical colours, SeventyTwo Digital will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client’s computer and/or the final product. Should a physical sample be required this will be provided on request by the Client and will be charged for as an extra. 

6.3 SeventyTwo Digital reserves the right to amend the Price where there is any variation to the accepted plan of scheduled services, strategy, sign off’s, instructions or specifications, (including, but not limited to, as a result of additional purchases required such as “add-on” being modules or extension from third party companies which are used in creating the Client’s Website or additional Services which will be charged for on the basis of SeventyTwo Digital’s standard hourly rates and time (and double such rate for any Services provided outside SeventyTwo Digital’s normal business hours).

6.4 The Client acknowledges that all Services and support for email are chargeable in addition to the Price.

6.5 SeventyTwo Digital shall not be held responsible for any amendments made by any third party before or after a design is published.

6.6 Variations will be charged for on the basis of SeventyTwo Digital’s quotation, and will be detailed in writing, and shown as variations on SeventyTwo Digital’s invoice. The Client shall be required to respond to any variation submitted by SeventyTwo Digital within ten (10) working days. Failure to do so will entitle SeventyTwo Digital to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

6.7 At SeventyTwo Digital’s sole discretion a non-refundable deposit may be required. 

6.8 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by SeventyTwo Digital, which may be:

1. on or before delivery of the Services; 
2. by way of instalments/progress payments in accordance with SeventyTwo Digital’s payment schedule;
3. for certain approved Clients, due twenty (20) days following the end of the month in which a statement is posted or emailed to the Client’s address or address for notices;
4. the date specified on any invoice or other form as being the date for payment; or
5. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by SeventyTwo Digital. 

6.9 Payment may be made by electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and SeventyTwo Digital.

6.10 SeventyTwo Digital may in its discretion allocate any payment received from the Client towards any invoice that SeventyTwo Digital determines and may do so at the time of receipt or at any time afterwards. On any default by the Client SeventyTwo Digital may re-allocate any payments previously received and allocated. In the absence of any payment allocation by SeventyTwo Digital, payment will be deemed to be allocated in such manner as preserves the maximum value of SeventyTwo Digital’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.

6.11 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by SeventyTwo Digital nor to withhold payment of any invoice because part of that invoice is in dispute.

6.12 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to SeventyTwo Digital an amount equal to any GST SeventyTwo Digital must pay for any supply by SeventyTwo Digital under this or any other contract for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

 

7. Fixed Contract Term

7.1 The commencement date shall be the date of the first delivery of the subscription services under a subscription service agreement, or from the date of signing, whichever, is the earlier. A subscription service agreement shall be for the period (‘initial term”) as agreed between both parties and shall revert to a monthly roll over basis automatically, thereafter, unless agreed otherwise until terminated by either party by giving at least three (3) months’ required notice as defined in the subscription service agreement prior to the expiration date of the initial term or any additional term

7.2 Subject to clause 25, if the Client wishes to terminate the Services during the term stipulated, SeventyTwo Digital may charge the Client an early termination Fee, the amount of which will depend on the Services acquired by the Client and the date of termination.

 

8. Product Specifications

8.1 The Client acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in SeventyTwo Digital’s or manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client 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 SeventyTwo Digital.

 

9. Provision of the Services

9.1 Each project is unique to a Client and the costings of a project are estimated and based on the requirements as defined by the Client at the initial meeting and shall include the hours and timeframe that SeventyTwo Digital envisages it will take to complete, (subject to variations as per clause 6.2). The estimate covers the following:

1. all technical, mandatory requirements and assumptions clearly itemised and disclosed by the Client prior to the initiation of the project to ensure all expected features and functionality have been correctly estimated; 
2. any additional work requested or required outside of the original estimate/scope needs to be agreed that SeventyTwo Digital is entitled to re-estimate the charges and time-frame without prejudice; and
3. amendments which is to be expected should be kept to a minimum by receiving the styling, text or content updates in batches in-line with the stage of the project, however, if in the opinion of SeventyTwo Digital, there is the need for more than one round of amendments, then the agreed number of changes must be established, prior to the commencement of the project.

9.2 SeventyTwo Digital may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.

9.3 Any time specified by SeventyTwo Digital for delivery of the Services is an estimate only and SeventyTwo Digital will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that SeventyTwo Digital is unable to supply the Services as agreed solely due to any action or inaction of the Client then SeventyTwo Digital shall be entitled to charge a reasonable Fee for re-supplying the Services at a later time and date.

 

10. Risk and Limitation of Liability for Client Data

10.1 Whilst SeventyTwo Digital, in providing the Goods and Services, shall make all effort to ensure their reliability, SeventyTwo Digital disclaims any liability whatsoever for any loss or damage caused by the Client’s use of, or reliance on, the Services or Goods (including any decision made, or action taken by the Client in reliance upon any such information contained on, or omitted from the Website, and whatsoever content and/or material is contained therein), including, but not limited to, any representations made by SeventyTwo Digital, or servants of SeventyTwo Digital, concerning the Goods and/or Services (including, Website Services).

10.2 Any liability whatsoever, howsoever incurred, in any form of action on the part of SeventyTwo Digital, shall be limited, subject to the maximum extent possible on a reasonably arguable view of the law, to the value of the consideration provided by SeventyTwo Digital.

10.3 Notwithstanding clause 10.2 and/or if subject to clause 21, SeventyTwo Digital shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by SeventyTwo Digital of these terms and conditions (alternatively SeventyTwo Digital’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods and/or Services).

10.4 The Client shall provide SeventyTwo Digital with data in the following formats:

1. for text, files shall be in an electronic format as standard text (.txt), Word (.doc), Google (.doc, sheets, drive, slides or forms), on a USB, or via email;
2. for images, in an electronic format as prescribed by SeventyTwo Digital on a USB, Google drive, or via email with the images of a suitable quality applicable for the use intended and without any subsequent image processing being required. SeventyTwo Digital shall not be responsible for the quality of images scanned from printed materials;
3. additional expenses may be charged to the Client for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing or data entry services.

10.5 The Client acknowledges and agrees that SeventyTwo Digital shall not be held responsible or liable for:

1. anything related to the Website or any other Services provided;
2. any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of SeventyTwo Digital;
3. any loss, corruption, or deletion of files or data (including, but not limited to Software programmes) resulting from illegal hacking or Services provided by SeventyTwo Digital. Whilst SeventyTwo Digital will endeavour to restore the Website, files or data (at the Client’s cost), it is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to SeventyTwo Digital providing the Services. The Client accepts full responsibility for the Client’s software and data and SeventyTwo Digital is not required to advise or remind the Client of appropriate back-up procedures (unless included as part of the Services); and
4. any loss or damage to the Client’s Software or hardware caused by any ‘updates’ provided for that Software.

10.6 SeventyTwo Digital, its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by SeventyTwo Digital to the Client.

10.7 The Services are provided on an “as is, as available” basis. SeventyTwo Digital specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.

 

11. Client-Supplied Content or Materials

11.1 Where the Client supplies content or materials to SeventyTwo Digital for inclusion in the Services:

1. the Client acknowledges that any content or materials supplied to SeventyTwo Digital for incorporation into the Services is subject to the approval of SeventyTwo Digital and may, regardless of prior approval, be rejected and removed by SeventyTwo Digital; 
2. such content or materials will be held by SeventyTwo Digital at the Client’s risk; 
3. SeventyTwo Digital accepts no responsibility for imperfect work caused by defects in or unsuitability of such content or materials; and
4. the Client warrants that all such content or materials supplied to SeventyTwo Digital to be used for the provision of the Services shall:
   1. be true and correct in every particular; 
   2. does not contain Prohibited Content; 
   3. be non-political and non-religious by nature, and suitable for viewer of all ages; 
   4. not be, nor contain, anything that is defamatory of any person or is indecent or obscene; 
   5. complies with all laws, regulations, codes of practice, guidelines and any standards applicable to the advertising industry and as determined by any relevant regulatory agency or industry self-regulatory body (including, but not limited to, the Consumer Protection Act, Fair Trading Act, GDPR, privacy legislation, the Unsolicited Electronic Messages Act, Code of Ethics and New Zealand Standards and Compliance; 
   6. does not infringe copyright, trademark or any other legal rights of another person and/or entity (including the name and image of any person without their consent, etc.); 
   7. does not contain anything which may give rise to any cause of action by a third party against SeventyTwo Digital (including, but not limited to, material that may cause damage or injury to any person and/or entity); 
   8. is not false or misleading and is true in substance and in fact; 
   9. not contain nor constitute a statement that is misleading or deceptive or likely to deceive or to mislead or which is otherwise in breach of a provision of the Fair Trading Act or any other applicable legislation; and
   10. be in the form, and delivered up to SeventyTwo Digital by the date, specified thereby. If the Client fails to adhere to this sub-clause, SeventyTwo Digital shall not be liable to the Client in the event SeventyTwo Digital is unable to provide the Services.

11.2 The Client shall indemnify, and keep indemnified, SeventyTwo Digital at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against SeventyTwo Digital, or incurred or become payable by SeventyTwo Digital, resulting or arising from the Client being in breach of clause 11.1.

11.3 Imprints or any legal obligations required to appear on any printed material are the responsibility of the Client. SeventyTwo Digital reserves the right to place its imprint on all printed material unless specifically requested otherwise.

11.4 In the case of content or materials left with SeventyTwo Digital without specific instructions, SeventyTwo Digital shall be free to dispose of them at the end of thirty (30) days after receiving them, and to accept and retain the proceeds, if any, to cover SeventyTwo Digital’s own costs in holding and handling them.

 

12. Proof Reading

12.1 Whilst every care is taken by SeventyTwo Digital to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading of the Goods, which will be sent to the Client and will be deemed accepted if no response is received by the Client within forty-eight (48) hours of SeventyTwo Digital’s submission thereof. SeventyTwo Digital shall be under no liability whatever for any errors not corrected by the Client in the final proof reading, and should the Client’s alterations requires additional proofs this shall be invoiced as an extra in accordance with clause 6.2.

 

13. Website Development and Maintenance

13.1 Upon acceptance of SeventyTwo Digital’s quotation, and in accordance with this Contract, SeventyTwo Digital will:

1. use its best endeavours to develop the Website in accordance with the Client’s instructions and specifications; and
2. to the extent specified in the Client’s instructions and specifications, negotiate and procure any third-party agreements on behalf of the Client.

13.2 The Client acknowledges that:

1. the development of the Website by SeventyTwo Digital is based upon current technology platforms (e.g. internet browsers, mobile, android, etc.), and therefore SeventyTwo Digital cannot guarantee that Website features and /or content will display correctly; and
2. the overall visual experience will be the same, for use by either superseded or presently undeveloped technology. 

13.3 The Client will:

1. in addition to any other obligations expressed in this Contract, have the following responsibilities:
   1. provision of all data to be incorporated into the Website;
   2. provision of logos, designs, graphic and related materials to be incorporated into the Website; and
   3. provision of any other information, ideas or suggestions which are to be expressly considered by SeventyTwo Digital in developing the Website;
2. ensure that SeventyTwo Digital is given such information and assistance as SeventyTwo Digital reasonably requires to enable SeventyTwo Digital to construct and maintain the Website.

Mobile Web Browsers

13.4 It shall be the Client’s responsibility to ensure that:

1. 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 Website shall be at the sole discretion of SeventyTwo Digital; 
2. in the event the Client requests additional work, in order to meet any specific requirements for mobile web browsers, after SeventyTwo Digital has commenced work on the Website, shall be treated as a variation to the Price;  and
3. a strict estimation of further work required shall be submitted to the Client for approval before proceeding with the variation work.

Domain Registration

13.5 Where SeventyTwo Digital is to register a domain name on the Client’s behalf, SeventyTwo Digital cannot guarantee the availability of the domain name, nor assume a successful registration or such a name.

13.6 SeventyTwo Digital will not be responsible for the renewal of any domain name registration unless specifically requested to do so by the Client.

13.7 The Client will be responsible for complying with all terms and conditions relating to any registered domain name, such as may be required by the ‘Registry’ that is responsible for administering the registration of such domain name.

Public Access

13.8 The Client understands that by placing information on the Website, such information may be accessible to all internet users. SeventyTwo Digital does not (unless expressly requested by the Client) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity.

13.9 The Client assumes full responsibility for their use of the Services, and it is the Client’s sole responsibility to evaluate the accuracy, completeness and usefulness or all opinions, advice, services, and other information, and the quality and merchantability of all Services provided by SeventyTwo Digital, or on the internet generally.

Maintenance

13.10 Where included in the provision of Services, SeventyTwo Digital will provide the maintenance services in accordance with the terms set out in SeventyTwo Digital’s maintenance schedule, and the Client:

1. will procure all necessary authorisations, licences and consents to enable SeventyTwo Digital to have access to the Website in order to provide the Services;
2. is required to pay monthly charges, which shall be specified, and due and payable, as per SeventyTwo Digital’s quotation, invoice/s or any other applicable document. SeventyTwo Digital may adjust the charges from time to time (as per clause 6.2) upon providing one (1) month’s written notice to the Client;
3. must provide SeventyTwo Digital with one (1) months’ written notification for any cancellation of such Services, or one (1) months’ charges for the Services shall be due in lieu of such notice. 

13.11 SeventyTwo Digital will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Website which is attributable to:

1. incorrect information provided by the Client, either pursuant to this clause or otherwise; 
2. failure by the Client to provide relevant information, either pursuant to this clause or otherwise; or
3. any third-party products and/or services used by SeventyTwo Digital in creation of the Website.

 

14. Social Network Tool

14.1 The Client acknowledges and accepts that:

1. where the Client wishes to engage a third party consultant to work on a project together with SeventyTwo Digital, to carry out part of the Services, then the Client agrees to, in the first instance as an act of good faith, to advise of the proposed action prior to any engagement to ensure there is no issue or a conflict of interest;
2. SeventyTwo Digital does not guarantee the SNT’s performance;
3. display on the SNT does not guarantee the availability of any particular goods; therefore, all orders placed through the Client’s Website as a result of any post or other communication posted shall be subject to confirmation of acceptance by the Client;
4. the ability to post communications on a SNT may be unavailable from time to time due regularly scheduled maintenance and/or upgrades by the SNT provider;
5. there are inherent hazards in electronic distribution, and as such SeventyTwo Digital cannot warrant against delays or errors in posts appearing on any SNT.

14.2 With changes in technology, changes in internet use and SNT visiting patterns, particular SNT availability/life cycle, SeventyTwo Digital may suggest changes to the original proposal and recommend an alternative service. Any such suggestions and/or recommendations shall be communication to the Client prior to implementation of any changes. 

14.3 The Client acknowledges that:

1. all SNT used in the provision of the Services are subject to the terms and condition of service of the third party provider and as such it is the Client’s responsibility to be familiar with those terms and conditions; and
2. in SeventyTwo Digital’s use of the Client’s SNT, SeventyTwo Digital is acting as the Client’s agent and any liability arising from the use of the SNT account/s shall be the Client’s responsibility.

 

15. Search Engine Optimisation (SEO)

15.1 Although SeventyTwo Digital shall use their knowledge and experience to gain the best results possible, SeventyTwo Digital gives no guarantee of the quality of visitor or the position / page rank or volume of visits to the Website, or warranty that the Website will be effective in promoting the Client’s business or result in any increase in sales of the products/services of the Client. 

 

16. Client’s Obligations

16.1 The Client will, at its sole cost and expense, subject to any contract with SeventyTwo Digital for Website development and/or maintenance of the Website:

1. ensure that SeventyTwo Digital at all times is granted all necessary licences, permissions and access reasonably required by SeventyTwo Digital to perform the hosting and/or additional support including without limitation; 
2. physical access to any relevant premises and hardware; 
3. logon and password access to any relevant computer systems; 
4. remote online access to any relevant computer systems where available; 
5. provide the content to SeventyTwo Digital, in such form as reasonably prescribed by SeventyTwo Digital from time to time, and hereby grants SeventyTwo Digital a non-exclusive, worldwide, irrevocable licence to use such content for the purposes of hosting the Website; 
6. do all things reasonably necessary to enable SeventyTwo Digital to host the Website on SeventyTwo Digital’s webserver; 
7. change the type of hosting account used if that account is deemed by SeventyTwo Digital to be unacceptable because of poor service, lack of bandwidth or in any other way insufficient to support the Website; 
8. is responsible for any fees payable and due to previous hosting organisations engaged by the Client; and
9. ensure that content supplied to SeventyTwo Digital do not contain Prohibited Content, a link to any Website 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 and/or support Services.

16.2 Failure by the Client to comply with clause 16.1 will entitle SeventyTwo Digital, at its option, to suspend the hosting and/or additional support without liability until such time as clause 16.1 is complied with.

16.3 The Client will not:

1. logon to an account that the Client is not authorised to access; 
2. access data or take any action to obtain services not intended for the Client; 
3. attempt to probe, scan or test the vulnerability of any system, subsystem or network; 
4. tamper, hack, modify or otherwise corrupt or breach security or authenticity measures without proper authorisation; 
5. transmit any material outlined in clause 16.1; 
6. send spam or other duplicative or unsolicited messages in violation of applicable laws including without limitation the Unsolicited Electronic Messages Act; or
7. do anything that prevents or hinders SeventyTwo Digital from providing hosting and support services to any other person.

16.4 The Client 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.

16.5 SeventyTwo Digital at its sole discretion acting reasonably shall be entitled to determine when there has been a breach of clause 16 and without limiting any other provision of these terms and conditions, SeventyTwo Digital shall be entitled without liability to take such actions as it deems appropriate in the circumstances.

 

17. Network Traffic

17.1 Network traffic shall be measured by SeventyTwo Digital and may include all forms of traffic to and from the Website. SeventyTwo Digital reserves the right to suspend hosting and/or support Services (at any time and without notice to the Client) for what it deems to be excessive traffic usage.

 

18. Title

18.1 SeventyTwo Digital and the Client agree that the Client’s obligations to SeventyTwo Digital for the provision of Services shall not cease until:

1. the Client has paid SeventyTwo Digital all amounts owing to SeventyTwo Digital; and
2. the Client has met all of its other obligations to SeventyTwo Digital.

18.2 Receipt by SeventyTwo Digital 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.

18.3 It is further agreed that: 

1. the Client is only a bailee of the Goods and must return the Goods to SeventyTwo Digital on request;
2. the Client holds the benefit of the Client’s insurance of the Goods on trust for SeventyTwo Digital and must pay to SeventyTwo Digital the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
3. the Client irrevocably authorises SeventyTwo Digital to enter any premises where SeventyTwo Digital believes the Goods are kept and recover possession of the Goods;
4. SeventyTwo Digital may recover possession of any Goods in transit whether or not Delivery has occurred; 
5. the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the  Goods while they remain the property of SeventyTwo Digital; and
6. SeventyTwo Digital may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

 

19. Personal Property Securities Act 1999 (“PPSA”)

19.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:

1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
2. a security interest is taken in all Goods that have previously been supplied and that will be supplied in the future by SeventyTwo Digital to the Client, and the proceeds from such Goods.

19.2 The Client undertakes to:

1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which SeventyTwo Digital may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
2. indemnify, and upon demand reimburse, SeventyTwo Digital for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
3. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of SeventyTwo Digital; and
4. immediately advise SeventyTwo Digital of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

19.3 SeventyTwo Digital and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

19.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.

19.5 Unless otherwise agreed to in writing by SeventyTwo Digital, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

19.6 The Client shall unconditionally ratify any actions taken by SeventyTwo Digital under clauses 19.1 to 19.5. 

19.7 Subject to any express provisions to the contrary (including those contained in this clause 19), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA. 

 

20. Security and Charge

20.1 In consideration of SeventyTwo Digital agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, and the Client grants a security interest in all of its present and after-acquired property, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.

20.2 The Client indemnifies SeventyTwo Digital from and against all SeventyTwo Digital’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising SeventyTwo Digital’s rights under this clause.

20.3 The Client irrevocably appoints SeventyTwo Digital and each director of SeventyTwo Digital as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 20 including, but not limited to, signing any document on the Client’s behalf.

 

21. Defective Services

21.1 The Client shall inspect the Services on delivery and shall within seven (7) days of delivery notify SeventyTwo Digital of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford SeventyTwo Digital an opportunity to inspect the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.

21.2 For defective Services, which SeventyTwo Digital has agreed in writing that the Client is entitled to reject, SeventyTwo Digital’s liability is limited to either (at SeventyTwo Digital’s discretion) replacing the Services or rectifying the Services provided that the Client has complied with the provisions of clause 21.1.

 

22. Consumer Guarantees Act 1993

22.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Goods by SeventyTwo Digital to the Client.

 

23. Intellectual Property and Confidentiality

23.1 Where SeventyTwo Digital has designed, drawn or developed Goods for the Client (including, but not limited to, any information regarding strategies and other marketing methodologies etc.), then the copyright in those Goods shall remain the property of SeventyTwo Digital, and the Client undertakes to acknowledge SeventyTwo Digital’s design or drawings in the event that images of the Goods are utilised in advertising or marketing material by the Client. Under no circumstances may such designs, drawings and documents be used without the express written approval of SeventyTwo Digital.

23.2 Notwithstanding anything herein, the intellectual property rights in SeventyTwo Digital’s Services do not vest in the Client and there is no assignment of these intellectual property rights to the Client. SeventyTwo Digital hereby grants to the Client 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 Client’s business however, the Client 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 SeventyTwo Digital unless express approval is given in advance by SeventyTwo Digital. Such license shall terminate on default of payment or any other terms of this Contract by the Client.

23.3 Drawings, sketches, painting, photographs, designs or typesetting furnished by SeventyTwo Digital, dummies, models or the like devices made or procured and manipulated by SeventyTwo Digital, and Web or Digitual UI / UX made from SeventyTwo Digital’s original design, or from a design furnished by the Client, remain the exclusive property of SeventyTwo Digital, unless otherwise agreed upon in writing.

23.4 Sketches and dummies submitted by SeventyTwo Digital on a speculative basis shall remain the property of SeventyTwo Digital. They shall not be used for any purpose other than that nominated by SeventyTwo Digital and no ideas obtained there from may be used without the consent of SeventyTwo Digital, and SeventyTwo Digital shall be entitled to compensation from the Client for any unauthorised use of such sketches and dummies.

23.5 The Client warrants that all designs, specifications or instructions given to SeventyTwo Digital will not cause SeventyTwo Digital to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify SeventyTwo Digital against any action taken by a third party against SeventyTwo Digital in respect of any such infringement.

23.6 The Client agrees that SeventyTwo Digital may (at no cost) use for the purposes of marketing or entry into any competition, any Goods which SeventyTwo Digital has created for the Client and/or any Services provided to the Client.

23.7 SeventyTwo Digital does not accept commissions to provide Services based on copyright works; this overrides Section 21(3) of the Copyright Act 1994 in accordance with Section 21(4) of that Act. The Client shall be entitled, on payment of all monies due to SeventyTwo Digital, to an irrevocable, non-exclusive and non-transferable license to use SeventyTwo Digital’s intellectual property for the specific purpose, and such intellectual property shall not be used for any purpose other than that nominated by SeventyTwo Digital and no ideas obtained therefrom may be used without the consent of SeventyTwo Digital. Unless the right to reproduce or to create derivative work is otherwise set out in writing, the right of the Client shall be limited to the use of the licensed works to create one (1) derivative work only, and to make such copies of SeventyTwo Digital’s intellectual property as are necessary for completion of that derivative work, and any statutory compliance associated with it. SeventyTwo Digital shall be entitled to compensation from the Client for any unauthorised use of SeventyTwo Digital’s intellectual property.

23.8 Where SeventyTwo Digital has provided photographic (digital or otherwise) images for the Client, at SeventyTwo Digital’s sole discretion, any such images may be subject to ongoing licence payments for use of such images. The period of any such licence is determined by SeventyTwo Digital from time to time.

23.9 All PHP, Java Script, HTML and CSS coding and other supplied code (if any) remains the intellectual property of SeventyTwo Digital. Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright. 

23.10 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.

 

24. Default and Consequences of Default

24.1 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 SeventyTwo Digital’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

24.2 If the Client owes SeventyTwo Digital any money the Client shall indemnify SeventyTwo Digital from and against all costs and disbursements incurred by SeventyTwo Digital in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, SeventyTwo Digital’s collection agency costs, and bank dishonour fees).

24.3 Further to any other rights or remedies SeventyTwo Digital may have under this Contract, if a Client has made payment to SeventyTwo Digital, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by SeventyTwo Digital under this clause 24 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.

24.4 Without prejudice to SeventyTwo Digital’s other remedies at law SeventyTwo Digital shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to SeventyTwo Digital shall, whether or not due for payment, become immediately payable if:

1. any money payable to SeventyTwo Digital becomes overdue, or in SeventyTwo Digital’s opinion the Client will be unable to make a payment when it falls due; 
2. the Client has exceeded any applicable credit limit provided by SeventyTwo Digital;
3. the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

25. Cancellation

25.1 Without prejudice to any other remedies SeventyTwo Digital may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions SeventyTwo Digital may suspend or terminate the supply of Services to the Client. SeventyTwo Digital will not be liable to the Client for any loss or damage the Client suffers because SeventyTwo Digital has exercised its rights under this clause.

25.2 SeventyTwo Digital may cancel any contract to which these terms and conditions apply or cancel provision of the Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice SeventyTwo Digital shall repay to the Client any money paid by the Client for the Services. SeventyTwo Digital shall not be liable for any loss or damage whatsoever arising from such cancellation.

25.3 Subject to clauses 25.4 and 25.6, in the event that the Client cancels the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by SeventyTwo Digital as a direct result of the cancellation (including, but not limited to, any loss of profits). In the event that an order is cancelled or suspended by the Client, then SeventyTwo Digital may immediately require the Client to pay for Services provided up to the date of cancellation or suspension.

25.4 Either party may, terminate these terms and conditions or cancel provision of the Services:

1. prior to the commencement of the Services, in the event that after consultation with the Client, SeventyTwo Digital determines it is not technically, commercially or operationally feasible to provide the Services to the Client; 
2. if a term is specified, at any time after the end of the term by giving one (1) months’ notice to the other party;
3. failure to give notice of intention to cancel at least one (1) month prior to the expiration date of the term, the term shall automatically renew on a monthly basis, unless cancelled by way of the Client providing SeventyTwo Digital with one (1) months’ notice.

25.5 SeventyTwo Digital may, in addition to their right to cancel under clause 25.4:

1. do so at any time:
   1. prior to the commencement of the Services, by giving notice to the Client. On giving such notice SeventyTwo Digital shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to SeventyTwo Digital for Services already performed. SeventyTwo Digital shall not be liable for any loss or damage whatsoever arising from such cancellation; or
   2. in the event the Client materially breaches these terms and conditions, and such breach is not capable of remedy.

25.6 In the event of the premature termination of this Contract (including by notification from the Client, (at least one (1) month prior to the expiration date of the Contract term), or as a result of Default, but excluding any breach or termination of this Contract by SeventyTwo Digital), the Client shall be responsible for the immediate payment of the following sums:

1. all monies due and payable up to the date of termination whether periodic or a fixed term, (noting applicable rates may change if the services agreement is shorter than that noted in the quotation); and
2. all other sums owing by the Client under this Contract directly as a result of the Default and termination of this Contract, which shall be calculated on the basis of any substantiated costs reasonably incurred by SeventyTwo Digital, or a minimum of twenty percent (20%) of the remainder of the Price under this Contract, whichever is the lesser, where a fixed term applies (to cover such costs imposed by SeventyTwo Digital third party suppliers that form part of, this Contract, without any margin added by SeventyTwo Digital thereto).

 

26. Limitation of Liability and Indemnity

26.1 SeventyTwo Digital accepts no liability whatsoever for any defect, error or omission in any Services approved by the Client, and will not be responsible for any costs or losses incurred by the Client by reason of any error in the Services (including, but not limited to, offering any refund or credit).

26.2 The Client agrees to indemnify SeventyTwo Digital, it’s employees, agents and affiliates, and their employees and agents against any action, claim, loss or expense arising from the production of Goods and/or publication of the Services, cancellation of, or failure to produce the Goods and/or publish any Services, and all costs, losses and expenses suffered or incurred by SeventyTwo Digital, its employees, agents and affiliates, and their employees and agents as a result of any breach by the Client of these terms and conditions, or any other agreement between the Client and SeventyTwo Digital.

26.3 The Client acknowledges that, due to the nature of digital display, technical difficulties may arise which could prevent the provision of the Services; and the Client, therefore, agrees to indemnify SeventyTwo Digital against any costs or losses incurred by the Client as a result of this.

 

27. Privacy Policy

27.1 All emails, documents, images or other recorded information held or used by SeventyTwo Digital is “Personal Information” as defined and referred to in clause 27.3 and therefore considered confidential. SeventyTwo Digital acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines as set out in the Act. SeventyTwo Digital acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by SeventyTwo Digital that may result in serious harm to the Client, SeventyTwo Digital will notify the Client in accordance with the Act.  Any release of such Personal Information must be in accordance with the Act and must be approved by the Client by written consent, unless subject to an operation of law.

27.2 Notwithstanding clause 27.1, privacy limitations will extend to SeventyTwo Digital in respect of Cookies where the Client utilises SeventyTwo Digital’s website to make enquiries. SeventyTwo Digital 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 Client’s:

1. IP address, browser, email client type and other similar details;
2. tracking website usage and traffic; and
3. reports are available to SeventyTwo Digital when SeventyTwo Digital sends an email to the Client, so SeventyTwo Digital may collect and review that information (“collectively Personal Information”)

If the Client consents to SeventyTwo Digital’s use of Cookies on SeventyTwo Digital’s website and later wishes to withdraw that consent, the Client may manage and control SeventyTwo Digital’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site. 

27.3 The Client authorises SeventyTwo Digital or SeventyTwo Digital’s agent to:

1. access, collect, retain and use any information about the Client;
   1. (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 Client’s creditworthiness; or 
   2. for the purpose of marketing products and services to the Client.
2. disclose information about the Client, whether collected by SeventyTwo Digital from the Client directly or obtained by SeventyTwo Digital from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.

27.4 Where the Client is an individual the authorities under clause 27.3 are authorities or consents for the purposes of the Privacy Act 2020.

27.5 The Client shall have the right to request (by e-mail) from SeventyTwo Digital, a copy of the Personal Information about the Client retained by SeventyTwo Digital and the right to request that SeventyTwo Digital correct any incorrect Personal Information.

27.6 SeventyTwo Digital will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law. 

27.7 The Client can make a privacy complaint by contacting SeventyTwo Digital via e-mail. SeventyTwo Digital will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.

 

28. Service of Notices

28.1 Any written notice given under this Contract shall be deemed to have been given and received:

1. by handing the notice to the other party, in person;
2. by leaving it at the address of the other party as stated in this Contract;
3. by sending it by registered post to the address of the other party as stated in this Contract;
4. if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
5. if sent by email to the other party’s last known email address.

28.2 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.

 

29. Trusts

29.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not SeventyTwo Digital may have notice of the Trust, the Client covenants with SeventyTwo Digital as follows:

1. the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
2. the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
3. the Client will not without consent in writing of SeventyTwo Digital (SeventyTwo Digital will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
   1. the removal, replacement or retirement of the Client as trustee of the Trust;
   2. any alteration to or variation of the terms of the Trust;
   3. any advancement or distribution of capital of the Trust; or
   4. any resettlement of the trust property.

 

30. Jurisdiction

30.1 The Website (excluding any linked third party sites) is controlled by SeventyTwo Digital from their principal business premises in New Zealand. It can be accessed from countries around the world to the extent permitted by the Website. As each country has laws that may differ from New Zealand, by accessing this Website, the Client agrees that the laws and statutes of New Zealand shall apply to any dealings, actions or claims arising out of, or in relation to, this Contract, or the Client’s use of the Website, irrespective of any conflict with any laws and statutes applicable to the Client’s country of domicile.

30.2 The Client further acknowledges and agrees that the filing of a claim against SeventyTwo Digital (if any) must be made in New Zealand in which their principal business premises in New Zealand is domiciled, and that any legal proceedings will be conducted in English.

30.3 SeventyTwo Digital makes no representation that Services offered through the Website are appropriate, available or suitable for use in countries outside of New Zealand, and accessing and/or utilising any Content from, or through, the Website which is illegal in your country of domicile is strictly prohibited. 

 

31. General

31.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues. 

31.2 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.

31.3 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.

31.4 Subject to the CGA, SeventyTwo Digital shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by SeventyTwo Digital of these terms and conditions (alternatively SeventyTwo Digital’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

31.5 SeventyTwo Digital may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.

31.6 The Client cannot licence or assign without the written approval of SeventyTwo Digital.

31.7 SeventyTwo Digital may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of SeventyTwo Digital’s sub-contractors without the authority of SeventyTwo Digital.

31.8 The Client agrees that SeventyTwo Digital may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for SeventyTwo Digital to provide Goods to the Client. 

31.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party.  This clause does not apply to a failure by the Client to make a payment to SeventyTwo Digital.

31.10 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.

31.11 Clauses 10, 23, 25, 26, 27, 28 and 31.1 survive the end of this Contract, and any other terms and conditions which by their nature are intended to survive.