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- Introduction
These terms, along with our Acceptable Use Policy (click here to view), apply to all Services that we (Zeald Limited) provide to you anytime, whether now or in the future. These terms always apply except when we have expressly notified you otherwise in writing.
- Services
- We may provide you with the Services as follows:
- E-Business Consulting and Development Services
- We agree with you a Terms of Reference for the proposed E-Business Consulting and Development Services. The specifications and details of the proposed E-Business Consulting and Development Services are set out in the relevant Product Brochure and/or Change Specification including the specifications for any Website, pricing and other details (“Terms of Reference”).
- You agree to make information and resources available in a timely manner so as to enable us to fulfil our obligations to you under the Terms of Reference in a timely manner.
- We will use our reasonable endeavours to deliver the E-Business Consulting and Development Services to you in accordance with the Terms of Reference.
- The Terms of Reference is based upon information that you provide to us. Therefore, you must make sure that you fully brief us on all matters. If you do not, the cost of the Terms of Reference may change (see clause 3.i).
- When the Terms of Reference is agreed and signed by you it is a complete statement of your requirements.
- Hosting Services
- We will provide the Hosting Services you have selected in the Terms of Reference to you from the Completion Date. It is important to understand that we are providing you the Hosting Services from the Completion Date not the 'go-live' or 'website launch' date and so unless some other arrangement has been made you will be billed in accordance with the Terms of Reference from this point forward.
- We will aim to provide you with consistent and reliable Hosting Services. We use professional hosting facilities but we are dependent on services provided by our Carriers and cannot guarantee there will be no interruptions to our Hosting Services. When access to your Website is disrupted, we will use our reasonable endeavours to reinstate the Hosting Services as soon as possible. We employ a variety of monitoring systems to detect major interruptions to service. If a major interruption is detected by our monitoring systems our network engineers are immediately notified 24 hours a day, 7 days a week, 365 days of the year.
- We will deliver the Hosting Services to you in whatever way we deem to be most appropriate. We can choose or change Carriers and any other suppliers at our sole discretion.
- Subject to any limitations in the Terms of Reference, you may choose to change the Hosting Services by requesting the change in writing and we will action your request as soon as we are reasonably able to. Any change to the Charges for the Hosting Services will take effect on the day we notify you that the changed Hosting Services are available for your use. If you change your Hosting Services it is up to you to check what, if any, special terms and conditions may apply to the new Hosting Services or if there is any fee for changing the Hosting Services. You may contact Customer Services or visit our website to obtain information about the different Hosting Services.
- The Hosting Services you have selected may include:
- a credit card transaction entitlement. If so, the included credit card transaction entitlement and any other entitlement in any particular Hosting Service:
- may not be carried over from month to month;
- cannot be redeemed for cash, or other Charges and cannot be transferred or assigned;
- expires on termination and any unused included transactions will be forfeited; and
- is subject to any other conditions for that particular Service.
- Phone and email support for the set-up, configuration and loading of your Website and other Services you might have with us. Such phone and email support is also provided to help assist and advise you in ways that you may be able to continue to improve the results that you are achieving with our Services. If included in the Hosting Services you have selected, you will not be charged for phone or email support. There is however, a reasonable use limit of 20 minutes of phone and email support per month per customer set on all our Services. If you exceed these limits then additional Charges for phone and email support may apply. If this is case, we will advise you before providing the phone and email support which will incur additional Charges. Our phone and email support does not cover problems in your computer, communication equipment, your software (except for software provided by us), your phone line, your internet connection or any other part of the internet not controlled by us.
- We reserve the right to remove or change any Hosting Services we may have offered from time to time and either replace them with new Services or move you on to the most similar or suitable Hosting Service then on offer to our customers. If we do remove or change a Hosting Service that affects you, we will give you as much notice as is practically possible but, in any case, not less than 30 days notice.
- Additional Services
The provision of any Additional Services shall be as agreed by us in the change specification or Terms of Reference for those Additional Services. Any such Additional Services will also be subject to these terms as amended by us from time to time.
- Project Changes
- Sometimes projects require changes which weren't expected at the outset or you may request changes to the Services. This can involve less or more cost to you. If this happens, we will both try and agree upon a written variation (including, if necessary, a price variation) to the Terms of Reference (“Change Specification”). Any Change Specification will become part of the Terms of Reference for that project. If we cannot agree on a variation (including the price of the variation), the Services will continue in accordance with the Terms of Reference.
- Warranties
- We warrant that we will provide all our Services with the care and skill that can be expected from a competent E-Business advisor, developer and hosting service provider.
- If we supply you with a Website, we also warrant that for 60 days from the Completion Date (“Warranty Period”) the Website will conform to the Terms of Reference. If this warranty is breached within the Warranty Period we will bring the Website into conformity with the Terms of Reference at our cost. Note that this warranty does not extend to any deviations caused by your negligence, misuse, or alterations or modification made by you that we have not permitted in writing.
- Except as mentioned above, all conditions and warranties, express or implied, are excluded to the maximum allowed by law. In particular, we do not warrant that the Website (if any) will:
- be completely free of defect or error; or
- be completely secure; or
- work on all internet browsers, operating systems and screen resolutions.
- Also, if we recommend that you use someone else's products or services in conjunction with the Services, you agree that we will have no liability (however arising) in respect of such products or services or the provision of such products and services to you.
- You agree that any goods or services we supply to you are purchased by you for the purpose of your business, and so the provisions of the Consumer Guarantees Act 1993 do not apply.
- Your Responsibilities
- When we have, or are going to, supply you with Services, it is your responsibility to:
- promptly provide, all the information, assistance and approvals that we may reasonably require;
- maintain backup data necessary to replace any of your data that is lost or damaged from any cause;
- obtain, and if required pay for, any consents and licenses required for us to incorporate third party materials in the website; and
- follow any instructions provided by us in respect of the Website and/or the Services and ensure that your employees, agents and contractors who uses the Website and the Services also meet your responsibilities under this Agreement when using the Website and/or the Services;
- use the Services at all times strictly in accordance with our Acceptable Use Policy; and
- keep strictly confidential any password and logon we give you for access to the administration functions of the Website.
- You confirm that all data, images, software and other information you supply to us or place on your Website (“Your Materials”) are:
- complete and accurate and not likely to mislead or deceive or cause damage to the reputation of any person or company;
- do not infringe the rights of any person (including intellectual property rights); and
- are not offensive, harmful, upsetting, unlawful, or otherwise objectionable. For the avoidance of doubt, this includes complying with the Film, Videos and Publications Classification Act 1993 and the Films, Videos and Publications Classification Amendment Act 2005.
- You agree that you will not, either on your own account or as a consultant, partner, agent, corporate trustee, shareholder or member of any other person or entity, induce, or attempt to induce, any employee or licensee of ours to terminate his or her employment or relationship with us.
- Intellectual Property
- We need to be able to use our website layouts and templates for more than one client. Therefore, except for any intellectual property in Your Materials and any Content Materials, Zeald and its suppliers own all Intellectual Property in the Website (including, the user interface, measurement and tracking tools) and any ideas, know how, software, and documentation developed in connection with the Services (including any Additional Services) (“Zeald IP”).
- We also understand that you are paying for the Website, and need to be able to use it. So, provided you meet your payment obligations for the E-Business Consulting and Development Services you are granted a personal, non exclusive, non transferable license to use Zeald IP in the manner anticipated in the Terms of Reference. We warrant that we have the right to grant you a licence to use the Services in the manner anticipated in the Terms of Reference. However, unless we have expressly agreed otherwise in writing, no license is given for you to use Zeald IP to develop any products or software that will be sold by you or anyone else.
- Provided you meet your payment obligations for the E-Business Consulting and Development Services, you are granted all Intellectual Property rights (including copyright) in the Content Materials provided as part of the Content Services.
- Liability
- We will not be liable to you, or any third party, for any:
- loss or damage to information or data from any cause,
- breach of security;
- loss of profit; and
- incidental, indirect special or consequential loss or damage.
- In any event, the maximum aggregate liability of Zeald to you arising out of any claim for loss and/or damages for any cause will under no circumstances exceed an amount equal to the total charges paid by you under the relevant Terms of Reference in the 12 month period immediately preceding the event giving rise to liability.
- The limitations and exclusions of liability in this clause 7 shall apply however liability arises, whether in contract, tort (including negligence), breach of statutory duty or otherwise.
- Sometimes we will not be able to fulfil our responsibilities through no fault of our own. Therefore, we are not responsible for any failure or delay to perform our obligations due to events beyond our reasonable control or failure by you to perform any of your responsibilities under this Agreement.
- You agree that we should not be exposed to your business and operational risks and so you agree:
- that we will not be liable for the results you achieve from your use of the Services, including any loss of profits, costs or damages related to products or services that you sell, or are unable to sell; and
- to indemnify us against any third party claims, damages, liabilities, costs and expenses arising out of the conduct of your business, including your use of the Services and the Website.
- Payment
- You agree to pay the Charges for the Services as follows:
- E-Business Consulting and Development Services
Unless otherwise agreed, we will invoice you for progress payments and completion of the E-Business Consulting and Development Services in accordance with the provisions of the Terms of Reference.
- Hosting Services
We will invoice you monthly in advance from the Completion Date for any Hosting Services you have selected. Unless otherwise agreed, Charges for the Hosting Services are payable by automatic payment into the bank account we specify.
- Additional Services
The Charges for any Additional Services will be agreed in the relevant Terms of Reference or Change Specification.
- All Charges are in New Zealand dollars and are exclusive of all taxes and duties.
- You agree to pay all invoices within 14 days of the invoice date.
- If you do not pay the Charges on time we may, at our option:
- suspend or restrict your use of the Services;
- terminate this Agreement;
- refer your account to our debt collection agency;
- charge you collection costs; and/or
- charge you default interest at the Default Rate on the amount outstanding until the actual date of actual payment of all amounts owing (including default interest).
- Credit References and Provision of Related Services
- You authorise us to check your credit status with any credit reference agency and/or credit referees you provide as we see fit from time to time and to pass on credit information about you to any credit reference agency at any time. If you are not satisfied with the information about you which we receive from any credit reference agency, you must deal directly with the credit reference agency to resolve this.
- We may decline your application for the Services (and/or any request for Additional Services) at our discretion and we do not have to disclose our credit criteria or the reasons for our decision.
- Confidential Information
- Each party will keep all information about the Terms of Reference, the Services, the Website and other information that is confidential to the other party (”Confidential Information”) confidential and will not disclose this information to a third party without the consent of the other party. Each party shall ensure that its employees, subcontractors and agents abide by these obligations of confidentiality.
- Unless we agree otherwise in writing, we will each use any Confidential Information belonging to the other party only for the purposes of fulfilling our obligations to each other under the Terms of Reference and as permitted in these Terms of Trade.
- Confidential Information does not include information clearly required to be disclosed by law; or is generally known and available without a party having breached its obligations under this clause 10; or is, or has been, independently and lawfully acquired or developed without the benefit or use of the other party's Confidential Information.
- Suspension of Services
- If you do not meet all of your responsibilities under this Agreement, we may suspend the provision of Services to you without prior notice.
- We may also suspend or disconnect you from our network if a Carrier supplying services to us suspends or interrupts its service to us and that suspension or interruption affects our ability to provide the Services to you.
- We may also suspend or restrict a service in an emergency or when ever we, any Carrier, or any other appropriate person considers that is necessary or reasonable to protect persons, systems or other property.
- Unless we otherwise agree, the Charges will continue to apply where we have suspended the Services.
- Termination
- Either of us may terminate a Terms of Reference (including the Hosting Services) by providing written notice to the other party if the other party has either:
- been placed in receivership or liquidation or entered into a composition with its creditors or become insolvent or bankrupt; or
- breached a term of the Terms of Reference or these Terms of Trade and failed to remedy such breach after being given written notice allowing at least 30 days to remedy the breach.
- Unless you have agreed to any fixed term in the Terms of Reference (in which case your rights of termination are set out in that Terms of Reference), you may also terminate the Terms of Reference by providing us with one month's written notice at any time after 12 months have elapsed since the Completion Date.
- We may also terminate this Agreement on the occurrence of any of the following events:
- non payment or late payment of invoices, with the exception of any amounts that are the subject of a genuine dispute and which you have previously notified us in writing as being in dispute; or
- if in our reasonable opinion, you are using the Services for any unlawful abusive, or fraudulent purpose; or
- if you fail to comply with a legal requirement of any of our Carriers concerning your use of the Services.
- if you commit a material breach of this Agreement or any other Agreement between us, when the breach is not reasonably capable of being remedied.
- Upon termination:
- any amounts owing by you to us under the Terms of Reference and these Terms of Trade must be paid immediately; and
- subject to clause 12.v, we may be regarded as discharged from any further obligations under the Terms of Reference .
- Termination or cancellation of a Terms of Reference shall not relieve either party from any right, liability, or claim that has accrued on or before the date of termination or cancellation. The provisions of clauses 6, 7, 8, 10, 12 and 13 of these Terms of Trade will survive termination or cancellation of a Terms of Reference.
- Marketing
- You agree that we may:
- include a reference on the bottom of the Homepage (or equivalent) of the Website, crediting the design, development and hosting of the Website to Zeald and/or any of our approved suppliers; and
- list you on our marketing materials, including on our website.
- Your Information
- You agree that for the purposes and performance of our obligations under the Terms of Reference, we may collect information about you. This information may be collected from you and from others.
- We will give you access to and, at your request, we will correct any information we hold about you.
- With the exception of any Confidential Information, you agree to allow us to use the information we hold about you and may exchange this information with our contractors, agents, representatives, Carriers, and with credit reporting and debt collection agencies.
- Variation of Terms
We may amend or replace these terms of trade from time to time. The amended or replacement terms of trade will then apply to the Services. We will tell you about this by posting the amended or replacement terms of trade on our website and by notifying you by e-mail of the new terms of trade. You will be bound by the amended or replacement terms and conditions even if you are unaware of the amendments or replacement terms and conditions. If you are in any doubt as to the current terms of trade that apply to the Services please visit our website http://www.zeald.com/tot or contact Customer Services. Please ask Customer Services at any time for a free copy of our current terms of trade.
- Miscellaneous
- You agree that, with the exception of urgent interlocutory relief in respect of use of confidential information or intellectual property in breach of this Agreement, both of us will attempt to resolve any dispute under this Agreement by negotiating in good faith for at least 14 days.
- If at any time any provision of this Agreement is or becomes illegal or unenforceable, neither the legal validity nor enforceability of the remaining provisions shall in any way be affected or impaired.
- We will send you notices and other documentation to the last known address, fax number or email address you have given to us.
- You may not assign any rights or obligations under this Agreement without our prior written consent. We may assign any rights under this Agreement without obtaining your prior approval. We may also sub-contract any of our obligations under this Agreement, but in so doing, will not be relieved of any liability to you under this Agreement.
- This Agreement shall be governed by New Zealand law.
- Definitions
“Acceptable Use Policy” means our most current policy on what is and is not acceptable use of the Services as amended by us from time to time. Our Acceptable use Policy can be found at http://www.zeald.com/Company/Acceptable+Use+Policy.html.
“Additional Services” means any additional services (not being Hosting or E-Business Consulting or Development Services) that we agree to provide to you.
“Charges” means all charges payable by you to us for the Services you have selected in the Terms of Reference. The Charges include amounts payable under any Change Specification or for Additional Services)
“Customer Services” means the Zeald customer services team, which is contactable by email on support@zeald.com or by phone on 0508 WEBSITE.
“Default Rate” is the rate of 1.5% per month. It applies from the date payment by you is due to the date we receive your payment in full.
“Carriers” means is any entity with whom we have entered into an agreement or arrangement (directly or indirectly) providing for the passing of customer generated or customer destined internet traffic between us and that entity.
“Change Specification” has the meaning given in clause 3.i.
“Completion Date” means the date on which we advise you that the Website is ready for the loading of your information and data.
“Content Material” means all written copy, illustrations, diagrams, photographs or other materials provided to you as part of the Content Services.
“Content Services” means any copywriting, illustration, photography, or other services to provide Content Material for the Website as selected by you in a Terms of Reference and provided by, or on behalf of us, as part of the E-Business Consulting and Development Services. The particulars and specifications of the Content Services are described in the relevant Product Brochures for those services.
“E-Business Consulting and Development Services” means the e-business consulting and development services and more fully described in the relevant Product Brochures and includes consulting, design, computer programming and training services for the purpose of creating the Website together with any website extras, such as Content Services.
“Homepage” means the homepage created or to be created for you as part of the E-Business Consulting and Development Services.
“Hosting Services” means the ongoing hosting and the Support Services selected by you in a Terms of Reference and to be provided by us to:
- place the Website on the computer server(s) operated by Zeald in order that you and others may use the Website;
- provide password restricted access for you to use and administer the Website;
- allow storage of information received by you or from the general public on such server(s); and
- support and enhance your use and operation of the Website and the Hosting Services,
on the terms more particularly described in the relevant Product Brochure.
“Intellectual Property” means all intellectual property as defined in article 2 of the Convention Establishing the World Intellectual Property Organisation of 1967 and, without limitation, includes any discovery, invention, novel or original designs (whether or not registrable as designs or patents), any trade marks or trade names or goodwill rights associated with such marks, applications for any of the foregoing, the copyright in any software, drawings, plans, specifications, designs, know-how and trade secrets owned or used, secret process or improvement in procedure.
“Product Brochure” means the brochure(s) specifying the Services, a copy of which was provided to you with the Terms of Reference.
“Services” means the E-Business Consulting and Development Services, the Hosting Services and the Additional Services as described in clause 2.
“Support Services” means those services to support and enhance your use and operation of the Website and the other Hosting Services as selected in the Terms of Reference and described in the relevant Product Brochure(s).
“Terms of Reference” means your signed application for the Services, in which you specify what Services you require. The Terms of Reference includes the relevant Product Brochure(s) and any Change Specification, the specifications for any Website, pricing and other details for the Services you have selected in that Terms of Reference.
“we” or “us” means Zeald Limited and “our” has a corresponding meaning.
“Website” means the website we create for you as part of the E-Business Consulting and Development Services.
“you” means the customer under this Agreement and “your” has a corresponding meaning.
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