Terms and Conditions
Terms & Conditions of Trade PREAMBLE
1.1 All Services of MRD WEB Ltd T/A MRD WEB, whether gratuitous or not, are supplied subject to these Conditions and:
(a) The provisions of Part I shall apply to the provision of all and any Services.
(b) The provisions of Part II shall only apply to the provision of Hosting Services.
(c) The provisions of Part III shall only apply to the provision of Web Development Services.
PART I – GENERAL CLAUSES
2.1 “Consultant” shall mean MRD WEB Ltd T/A MRD WEB as defined by the form attached to or overleaf of these terms and conditions of trade and its successors and assigns.
2.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by the Consultant to the Client.
2.3 “Guarantor” means that person (or persons), or entity who agrees to be liable for the debts of the Client on a principal debtor basis.
2.4 “Materials” shall mean all data, graphics, pictures, trade marks, Software and other materials to be incorporated in the Client’s Website (including, but not limited to, user data created by the operation of the Client’s Website).
2.5 “Goods” shall mean Goods supplied by the Consultant to the Client (and where the context so permits shall include any supply of Services and
the Website as hereinafter defined) and are as described on any documents provided by the Consultant to the Client.
2.6 “Services” shall mean hosting and other services supplied by the Consultant to the Client and include any advice or recommendations (and
where the context so permits shall include any supply of Goods as defined above).
2.7 “Software” shall mean the programs and other operating information (including documentation) used by a computer.
2.8 “Price” shall mean the cost of the Goods as agreed between the Consultant and the Client subject to clause 4 of this contract.
2.9 “Website” shall mean the website developed by the Consultant for the Client which shall be broadcast live on the Internet providing multimedia
content via a graphical user interface.
2.10 “Prohibited Content” means any content on a Website that:
(a) is, or could reasonably be considered to be, in breach of broadcasting or any other applicable law or applicable industry code; or
(b) contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading
or deceptive, likely to mislead or deceive or otherwise unlawful; or
(c) is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights.
3.1 Any instructions received by the Consultant from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by the Consultant shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written
consent of the Consultant.
3.4 The Client undertakes to give the Consultant at least fourteen (14) days notice of any change in the Client’s name, address and/or any other
change in the Client’s details.
4. Price And Payment
4.1 At the Consultant’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Consultant to the Client in respect of Goods supplied; or
(b) the Consultant’s quoted Price (subject to clause 4.2 and 19) which shall be binding upon the Consultant provided that the Client shall accept
the Consultant’s quotation in writing within thirty (30) days.
4.2 The Consultant reserves the right to change the Price in the event of a variation to the Consultant’s quotation.
4.3 At the Consultant’s sole discretion payment for fifty percent (50%) of the quoted Price shall be due upon acceptance of the Consultant’s
4.4 Unless otherwise mutually agreed prior to the completion date of the project, the balance of payment shall be invoiced to the Client two (2) weeks from the mutually agreed project competition date whether or not the Goods have been delivered and/or Services have been completed, if it is agreed that the client has delayed the project completion date by way of not delivery information, content or not making timely decisions critical to the project time frame.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment
shall be due fourteen (14) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client
and the Consultant.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4.8 Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at the Clients request for the job.
4.9 When quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good copy, any extra work or
cost caused by any variation by the Client of his original instructions or by the manuscript copy being, in the Consultants opinion, poorly prepared or by the Client’s requirements being different from those originally submitted or described may be charged to the Client and shown as extras on the invoice.
4.10 All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.
5. Delivery Of Goods
5.1 At the Consultant’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at the Consultant’s address; or
(b) the Client takes possession of the Goods at the Client’s address (in the event that the Goods are delivered by the Consultant); or (c) when the website goes live on the internet.
5.2 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Consultant shall be entitled to charge a reasonable fee for redelivery.
5.3 The Consultant may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the
provisions in these terms and conditions.
5.4 The failure of the Consultant to deliver shall not entitle either party to treat this contract as repudiated.
6.1 If the Consultant retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Consultant is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Consultant is sufficient evidence of the
Consultant’s rights to receive the insurance proceeds without the need for any person dealing with the Consultant to make further enquiries.
6.3 The Consultant shall be under no liability whatsoever to the Client for any variation (beyond the reasonable control of the Consultant) in colours
between the approved prototype and the finished Goods.
6.4 Whilst every care is taken by the Consultant to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof reading of the Goods. The Consultant shall be under no liability whatever for any errors not corrected by the Client in the final proof reading. Should the Clients alterations require additional proofs this shall be invoiced as an extra.
6.5 When style, type or layout is left to the Consultants judgement, then the Client makes further alterations to the copy this will be invoiced as an extra.
7. Client’s Property and Material Supplied by Client
7.1 In the case of property and materials left with the Consultant without specific instructions, the Consultant shall be free to dispose of them at the end of twelve months after his receiving them and to accept and retain the proceeds, if any, to cover his own costs in holding and handling them.
7.2 Where materials or equipment are supplied by the Client the Consultant accepts no responsibility for imperfect work caused by defects in or unsuitability of such materials or equipment.
7.3 Any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Client deemed necessary by the Consultant to ensure correctly finished work shall be invoiced as an extra.
8.1 The Consultant and Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid the Consultant all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to the Consultant in respect of all contracts between the Consultant and the Client.
8.2 Receipt by the Consultant of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Consultant’s ownership or rights in respect of the Goods shall continue.
8.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Consultant shall have received payment and all other
obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from the Consultant to the Client the Consultant may give notice in writing to the Client
to return the Goods or any of them to the Consultant. Upon such notice the rights of the Client to obtain ownership or any other interest in
the Goods shall cease; and
(c) the Consultant shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to the Consultant then the Consultant or the Consultant’s agent may (as the invitee of the Client) enter
upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take
possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as the Consultant has received payment in full for the Goods then the Client shall
hold any proceeds from the sale or disposal of the Goods on trust for the Consultant; and
(f) the Client shall not deal with the money of the Consultant in any way which may be adverse to the Consultant; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the
(h) the Consultant can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have
passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that the
Consultant will be the owner of the end products.
9. Personal Property Securities Act 1999 (“PPSA”)
9.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by the Consultant to the Client (if any) and all Goods that will be supplied in the
future by the Consultant to the Client.
9.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Consultant may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Consultant 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;
(c) not register a financing change statement or a change demand without the prior written consent of the Consultant; and
(d) immediately advise the Consultant 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.
9.3 The Consultant and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
9.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
9.5 Unless otherwise agreed to in writing by the Consultant, the Client waives its right to receive a verification statement in accordance with section
148 of the PPSA.
9.6 The Client shall unconditionally ratify any actions taken by the Consultant under clauses 9.1 to 9.5.
10.1 The Client shall inspect the Goods on delivery and shall within fourteen (14) days of delivery (time being of the essence) notify the Consultant of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Consultant an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Consultant has agreed in writing that the Client is entitled to reject, the Consultant’s liability is limited to either (at the Consultant’s discretion) replacing the Goods or repairing the Goods.
10.2 Goods will not be accepted for return other than in accordance with 10.1 above.
11.1 To the extent permitted by statute, no warranty is given by the Consultant as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. The Consultant shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
11.2 Once accepted by the Client, the Consultant’s written quotation shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, the Consultant shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
12. Intellectual Property
12.1 Drawings, sketches, painting, photographs, designs or typesetting furnished by the Consultant, dummies, models or the like devices made or procured and manipulated by the Consultant and negatives, positives, blocks, engravings, stencils, dies, plates or cylinders made from the Consultant’s original design, or from a design furnished by the Client, remain the exclusive property of the Consultant unless otherwise agreed upon in writing.
12.2 Sketches and dummies submitted by the Consultant on a speculative basis shall remain the property of the Consultant. They shall not be used for any purpose other than that nominated by the Consultant and no ideas obtained there from may be used without the consent of the Consultant. The Consultant shall be entitled to compensation from the Client for any unauthorised use of such sketches and dummies.
12.3 Where the Consultant has designed or drawn Goods for the Client then the Client undertakes to acknowledge the Consultants design or drawings in the event that images of the Goods are utilised in advertising or marketing material by the Client.
12.4 The Client hereby authorises the Consultant to utilise images of the Goods designed or drawn by the Consultant in advertising, marketing, or competition material by the Consultant.
12.5 The Client shall indemnify the Consultant against any claims by third parties for patent, trademark, design or copyright infringement, directly or indirectly arising out of the design, workmanship, material, construction, or use of the Goods or any other deficiency therein. Where the Client has supplied drawings, sketches, files or logo’s to the Consultant, the Client warrants that the drawings, sketches, files or logo’s do not breach any patent, trademark, design or copyright, and the Client agrees to indemnify the Consultant against any action taken by a third party against the Consultant.
12.6 Notwithstanding anything herein, the Intellectual Property Rights in the Consultant’s Materials and the Consultant’s Routines do not vest in the Client and there is no assignment of the Intellectual Property Rights in the Consultant’s Materials or the Consultant’s Routines to the Client. The Consultant hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use and reproduce the Consultant’s Materials and Consultant’s Routines for the purposes of this agreement only.
12.7 Where the Consultant has provided Software, the Consultant retains ownership of the Software, but grants a licence to the Client for use of the Software. The Client will use any Software supplied by the Consultant strictly in terms of the licence under which it is supplied and shall not modify, change or copy any such Software. The Client will use any third-party Software supplied by the Consultant, and identified as such, strictly in terms of the licence under which it is supplied.
12.8 Where the Consultant has provided photographic (digital or otherwise) images for the Client, at the Consultants 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 the Consultant from time to time.
13. Default and Consequences of Default
13.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
13.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Consultant from and against all costs and disbursements incurred by the Consultant in pursuing the debt including legal costs on a solicitor and own Client basis and the Consultant’s collection agency costs.
13.3 Without prejudice to any other remedies the Consultant may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Consultant may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. The Consultant will not be liable to the Client for any loss or damage the Client suffers because the Consultant has exercised its rights under this clause.
13.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
13.5 Without prejudice to the Consultant’s other remedies at law the Consultant shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Consultant shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Consultant becomes overdue, or in the Consultant’s opinion the Client will be unable to meet its payments as
they fall due; or
(b) 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14.1 The Consultant may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Consultant shall repay to the Client any sums paid in respect of the Price. The Consultant shall not be liable for any loss or damage whatever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by the Consultant (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
15. Privacy Act 1993
15.1 The Client and the Guarantor/s (if separate to the Client) authorises the Consultant to:
(a) collect, retain and use any information about the Client and/or Guarantors, for the purpose of assessing the Client’s and/or Guarantors
creditworthiness or marketing products and services to the Client and/or Guarantors; and
(b) disclose information about the Client and/or Guarantors, whether collected by the Consultant from the Client and/or Guarantors directly or obtained by the Consultant 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 and/or Guarantors.
15.2 Where the Client and/or Guarantors are an individual the authorities under clause 18.1 are authorities or consents for the purposes of the Privacy Act 1993.
15.3 The Client and/or Guarantors shall have the right to request the Consultant for a copy of the information about the Client and/or Guarantors retained by the Consultant and the right to request the Consultant to correct any incorrect information about the Client and/or Guarantors held by the Consultant.
16. Unpaid Consultant’s Rights
16.1 Where the Client has left any item with the Consultant for repair, modification, exchange or for the Consultant to perform any other Service in relation to the item and the Consultant has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Consultant shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while the Consultant is in possession of the item;
(c) a right to sell the item.
16.2 The lien of the Consultant shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
17.1 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.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of Napier.
17.3 The Consultant 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 the Consultant of these terms and conditions.
17.4 In the event of any breach of this contract by the Consultant the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.5 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 the Consultant nor to withhold payment of any invoice because part of that invoice is in dispute.
17.6 The Consultant may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Consultant reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to
these terms and conditions, then that change will take effect from the date on which the Consultant notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or
other event beyond the reasonable control of either party.
17.9 The failure by the Consultant to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it
affect the Consultant’s right to subsequently enforce that provision.
PART II: WEBSITE HOSTING
18. What The Consultant Will Do
18.1 The Consultant will do:
(a) install the Client’s Materials on the Consultant’s Server;
(b) host the Client’s Website on the Consultant’s Server;
(c) ensure that from the Live Date:
(i) sufficient capacity is maintained on the Consultant’s Server to enable Users access to the Client’s Website in a timely manner;
(ii) the Client’s Website is accessible to Users in accordance with the Service Levels (subject to reasonable downtime for server maintenance which has been notified to the Client prior to the commencement of the downtime or Website Maintenance in accordance
with Clause (d));
(d) provide the Client with reasonable access to the Client Website to perform maintenance services.
19. What The Consultant Will Not Do
19.1 The Consultant will not:
(a) alter or amend, or permit any person to alter or amend the Client’s Website without the written consent of the Client;
(b) post or display on the Client’s Website any advertisement, sponsorship or promotion without the written consent of the Client; (c) use any User Data for marketing, referral or other purposes except as expressly authorised by this agreement;
(d) sub-licence, rent, time-share, lease, lend or grant any rights to use the Client’s Website; or
(e) assign, transfer or authorise anyone else to exercise the rights in any licence granted pursuant to this agreement.
20. What The Client Will Do
20.1 The Client will, at its sole cost and expense:
(a) provide the Client’s Materials to the Consultant, in such form as reasonably prescribed by the Consultant from time to time, and hereby
grants the Consultant a non-exclusive, world wide, irrevocable licence to use the Client’s Materials for the purposes of hosting the Client’s
(b) do all things reasonably necessary to enable the Consultant to host the Client’s Website on the Consultant Server;
(c) ensure that the Client’s Materials supplied to the Consultant do not contain:
(i) Prohibited Content;
(ii) a link to any website that contains prohibited content; or
(iii) any viruses, trojan horses, worms, time bombs or any other software program or routine designed for or capable of interfering with the
operation of the Hosting Services.
21. What The Client Will Not Do
21.1 The Client will not do anything that prevents or hinders the Consultant from providing hosting services to any other person.
PART III: DEVELOPMENT OF THE WEBSITE
22. What The Consultant Will Do
22.1 Upon approval of the Specifications and Quotation in accordance with this agreement, the Consultant will:
(a) use its best endeavours to develop the Website in accordance with the Development Stages; and
(b) to the extent specified in the Specifications, negotiate and procure Third Party Agreements on behalf of the Client.
23. What The Client Will Do
23.1 The Client will ensure that the Consultant is given such information and assistance as the Consultant reasonably requires to construct and maintain the Website.
23.2 The Consultant will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Website which is attributable to:
(a) incorrect information provided by the Client, either pursuant to this clause or otherwise; or
(b) failure by the Client to provide relevant information, either pursuant to this clause or otherwise; or
(c) any 3rd party Materials used by the Client in creation of the Website
24.1 Subject to Clause 27.2, the Consultant will provide the Maintenance Services in accordance with the maintenance terms set out in the Consultant’s maintenance schedule.
24.2 The Client will procure all necessary authorisations, licences and consents to enable the Consultant to have access to the Website in order to provide the Maintenance Services.