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:
1.4 “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:
1.10 “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.
2.1 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:
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.
3.1 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)).
4.1 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):
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.
5.1 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.
6.1 At SeventyTwo Digital’s sole discretion the Price shall be either:
6.2 SeventyTwo Digital reserves the right to change the Price where:
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:
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.
7.1 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.
8.1 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.
9.1 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:
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.
10.1 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:
10.5 The Client acknowledges and agrees that SeventyTwo Digital shall not be held responsible or liable for:
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.
11.1 Where the Client supplies content or materials to SeventyTwo Digital for inclusion in 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.
12.1 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.
13.1 Upon acceptance of SeventyTwo Digital’s quotation, and in accordance with this Contract, SeventyTwo Digital will:
13.2 The Client acknowledges that:
13.3 The Client will:
13.4 It shall be the Client’s responsibility to ensure that:
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.
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.
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:
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:
14.1 The Client acknowledges and accepts that:
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:
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.
16.1 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:
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:
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.
17.1 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.
18.1 SeventyTwo Digital and the Client agree that the Client’s obligations to SeventyTwo Digital for the provision of Services shall not cease until:
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:
19.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
19.2 The Client undertakes to:
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.
20.1 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.
21.1 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.
22.1 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.
23.1 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.
24.1 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:
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:
25.5 SeventyTwo Digital may, in addition to their right to cancel under clause 25.4:
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:
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.
27.1 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:
27.3 The Client authorises SeventyTwo Digital or SeventyTwo Digital’s agent to:
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.
28.1 Any written notice given under this Contract shall be deemed to have been given and received:
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.
29.1 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:
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.
31.1 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.