Terms of trade

Website Terms and Conditions

DEFINITIONS AND INTERPRETATION     1.1 In this Agreement: “Acceptance Criteria” has the meaning given to it in Clause 5; “Acceptance Period” means the period of 10 Business Days beginning on the Implementation Date of the Website to the Customer;“Agreement” means the agreement between Fabric Digital Limited and the Customer incorporating these Terms and Conditions and the Proposal, and any amendments to it from time to time; “Business Day” means any week day, other than a bank or public holiday in New Zealand “Business Hours” means between 09:00 and 17:30 New Zealand Standard Time on a Business Day; “Charges” means the amounts payable by the Customer to Fabric Digital Limited under or in relation to the Agreement (as set out in the Proposal);    “Confidential Information” means: (a) any information supplied by Fabric Digital Limited to the Customer (whether supplied in writing, orally or otherwise) marked as “confidential”, described as “confidential” or reasonably understood to be confidential; (b) the terms (but not the existence) of the Agreement; “Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly); “Customer” means the customer for services under the Agreement as specified in the Proposal and this Agreement; “Customer Works” means the works and materials provided to Fabric Digital Limited by the Customer, or by any third party acting for or on behalf of the Customer, for incorporation into the Website;“Defect” means a defect, error or bug having a material adverse effect on the appearance, operation or functionality of the Website but excluding any defect, error or bug caused by or arising as a result of: (a) an act or omission of the Customer, or an act or omission of one of the Customer's employees, officers, agents or sub-contractors; (b) an incompatibility between the Website and any other application, program or software;

“Delivery Date” means the date for delivery of the Website specified in the Proposal;“Deployment Date” means the date Website Deployment has occurred. “Design Elements” means the visual appearance of the Website (including page layouts, artwork, photographs, logos, graphics, animations, video works and text comprised in the Website) together with all mark-ups and style sheets comprised in or generated by the Website, but excluding: (a) the Customer Works; and (b) the Third Party Works; and (c) the Website Content

“Domain Name” means the top level domain(s) referred to in the Proposal; “Early Termination” means termination of the contract in accordance with clause 14 before the expiration of the Minimum Term. “Early Termination Charges” means the charges incurred by the Customer if Early Termination occurs. This is calculated as follows: (a) Termination Penalty X percentage of Minimum Term remaining “Effective Date” means the date of execution of this Agreement; “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars); “Implementation Date” means the implementation date of the Website as detailed in Clause 5; “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs); “Minimum Term” means the period of 1 Year starting from the Implementation Date unless otherwise stated in the Proposal; “Personal Data” has the meaning given to it in the Privacy Act 1993; “Prohibited Content” means: (a) material which breaches any applicable laws, regulations or legally binding codes, or infringes any third party Intellectual Property Rights or other third party rights, or may give rise to any form of legal action against Fabric Digital Limited or the Customer or any third party; (b) objectionable, pornographic or lewd material; (c) messages or communications which are offensive, abusive, indecent or obscene, are likely to cause annoyance, inconvenience or anxiety to another internet user, or constitute spam or bulk unsolicited mail;

“Proposal” means the proposal documents, terms and conditions, and order forms, either electronic or hard copy, issued by Fabric Digital Limited detailing the scope of the Services and other matters relating to the Agreement;

“Resources” means the email mailboxes, data transfer, and disk space storage specified in the Proposal; “Services” means the services detailed in Clause 3; 

“Search Engine” means any third party website, displaying searchable, categorised, and hyperlinked information about the Website. The most notable example of a Search Engine is Google.com. 

 “Search Engine Optimisation” means the process of employing techniques and methodologies outlined in the Proposal in order to improve the appeal of the Website to Search Engine ranking algorithms, most specifically Google.com;

“SEO” means Search Engine Optimisation;

“Term” means the term of this Agreement; “Termination Penalty” means the penalty figure used for calculating the Early Termination charges. This is calculated as follows: (a) gross value of Services in the Agreement during the Minimum Term, multiplied by a factor of 1.4

“Third Party Works” means the works and materials comprised in the Website, the Intellectual Property Rights in which are owned in whole or part by a third party (excluding the Customer Works);

“Website Content” means the Customer Works implemented into the Website using the Content Management System through a standard web browser; “Website Deployment” means the Website is published making it publicly accessible on the internet under the Domain Name(s) as outlined in the Proposal; “Year” means a period of 365 days (or 366 days if there is a 29 February during the relevant period).

“D, P Triple D” means the 5 step process (Discover, Plan, Design, Develop, Deploy) Fabric Digital follows when building a website

“In Scope Deliverable(s)” means the tasks Fabric Digital will complete in accordance to the proposal. Anything that is out of the in Scope Deliverables is deemed as “Out of Scope”.

“Out of Scope” includes, but is not limited to, The Customer works, third party works or any other work that Fabric Digital Limited will not carry out in accordance to the proposal.   

1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to: (a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and (b) any subordinate legislation made under that statute or statutory provision. 1.3 The Clause headings do not affect the interpretation of the Agreement. 1.4 The ejusdem generis rule is not intended to be used in the interpretation of the Agreement; it follows that a general concept or category utilsised in the Agreement will not be limited by any specific examples or instances utilised in relation to such a concept or category.  

2.  TERM This Agreement will come into force on the Effective Date and will continue in force indefinitely, unless and until terminated in accordance with Clause 14. Effects of Termination including Early Termination Charges due to termination prior to the Minimum Term will be in accordance with clause 15. 

 3.  THE SERVICES 3.1 Fabric Digital Limited: (a) will deliver the Website as outlined in the Proposal; (b) will facilitate the incorporation of  the Website Content into the Website by the Customer; (c) from the Implementation Date, will host the Website in the manner specified in the Proposal, and will make available the Resources for this purpose; (d) may suspend some or all of the Services in order to carry out scheduled maintenance or repairs.  Subject to this, Fabric Digital Limited will use its best endeavours to maintain an acceptable Website availability level; (e) will make available to the Customer the ability to update or amend the written content on the Website using a standard web browser;

(i) from time to time upgrade the Software Elements of the Website to provide greater service, security, and efficiency of the Website for the Customer;

(j) will provide Website Promotion, and Search Engine Optimisation (SEO) services as outlined in the proposal. (k) will register and manage the Domain Name(s) as outlined in the Proposal on behalf of the Customer. (l)  will provide Website setup and configuration services as outlined in the proposal. (m) will provide Website customisation and design as outlined in the proposal.

(the “Services”).   3.2 Fabric Digital Limited will use reasonable endeavours to perform the Services in accordance with the timetable set out in the Proposal; however, Fabric Digital Limited does not guarantee that that timetable will be met. 3.3 Fabric Digital Limited will perform all Search Engine Optimisation Services to the best of its abilities as set out in the Proposal; however Fabric Digital Limited cannot guarantee the position or inclusion of the Website within Search Engine rankings or results.

4.  CUSTOMER OBLIGATIONS 4.1 The Customer will provide Fabric Digital Limited with: (a) such co-operation as is required by Fabric Digital Limited (acting reasonably) to enable the performance by Fabric Digital Limited of its obligations under the Agreement; and (b) all information and documents required by Fabric Digital Limited (acting reasonably) in connection with the provision of the Services. 4.2 The Customer will be responsible for procuring any third party co-operation reasonably required by Fabric Digital Limited to enable Fabric Digital Limited to fulfil its obligations under the Agreement. 4.3 The Services are provided to the Customer only, and the Customer may not resell the Services to any third party. 4.4 The Customer will be responsible for obtaining suitable licences of third party software (such as email client software) which are required for the full use of the Services. 4.5 It is the Customer’s responsibility to keep any passwords relating to the Services confidential, and to change such passwords on a regular basis.  The Customer will notify Fabric Digital Limited immediately if it becomes aware that a password relating to the Services is or may have been compromised or misused.

5.  DELIVERY AND ACCEPTANCE

5.1 Upon Fabric Digital’s completion of each step of the D, P Triple D, The Customer has 7 business days to send Fabric Digital written notice confirming that they are happy to move on to the next step. If The Customer does not want to move to the next step, The Customer must provide Fabric Digital written notice with a detailed explanation as to why. If The Customers request within the in Scope Deliverables of the project, Fabric Digital will initiate the implementation of the changes no longer than 30 business days after receiving the written notice. If the customers request falls out side of the scope of the project, The Customer will incur extra charges as determined by Fabric Digital Limited and agreed upon by the Customer.

5.2 If the Customer wishes to revise work done in a step of the D, P Triple D after the Customer has sent written confirmation, Fabric Digital reserves the right to incur extra charges to the Customer as determined by Fabric Digital Limited and agreed upon by the customer

5.2 Fabric Digital Limited will give the Customer notification in writing when the Website is ready for Website Content loading, and will provide the Customer access to the content management area of the Website for the purpose of Website Content loading, and acceptance testing. The Implementation Date will be deemed to be when this notification is given in accordance with clause 16.2. 

 5.3 Following the Implementation Date, the Customer will carry out acceptance tests to determine: (a) whether the Website conforms in all material respects with the specification of the Website in the Proposal; and (b) whether the Website has any Defects;     (the “Acceptance Criteria”).   

 5.4 If in the Customer's reasonable opinion the Website meets the Acceptance Criteria, the Customer will send to Fabric Digital Limited a written notice confirming acceptance of the Website.

 5.5 If in the Customer's reasonable opinion the Website does not meet the Acceptance Criteria, the Customer will send to Fabric Digital Limited a written notice setting out in detail the respect(s) in which the Website does not meet the Acceptance Criteria. If the detail in the written notice falls out side of the in Scope Deliverables of the project. The Customer will incur extra charges as determined by Fabric Digital Limited and agreed upon by the Customer.

5.5 If Fabric Digital Limited (acting reasonably) agrees that the Website does not meet the Acceptance Criteria, Fabric Digital Limited will have a further remedial period (of 40 Business Days) to modify the Website so that it meets the Acceptance Criteria. If

5.6 The Website will be deemed to have been accepted by the Customer if the earlier of the following occurs: (a) the Customer does not give any notice to Fabric Digital Limited under either Clause 5.3 or Clause 5.4 within the Acceptance Period; or (b) the Customer instructs Website Deployment to occur; or (c)  the Customer uses the Website for any purpose other than Website Content loading and/or testing and/or testing.

6.  THIRD PARTY WORKS Any license fees for Third Party Works will be payable by the Customer in addition to the Charges specified in the Proposal (unless the parties agree otherwise).

7.  ACCEPTABLE USE 7.1 The Customer must not use the Website or any of the Services: (a) to host, store, send, relay or process any Prohibited Content; (b) for any purpose which is unlawful, fraudulent, or infringes any third party rights; (c)  in any way which may put Fabric Digital Limited in breach of a contractual or other obligation owed by Fabric Digital Limited to any internet service provider.

7.2 Fabric Digital Limited reserves the right to remove content from the Website where it reasonably suspects such content is Prohibited Content. 

7.3 The Website’s utilisation of Resources must not exceed the limits set out in the Proposal.  If the Website’s utilisation of Resources exceeds those limits, the parties will endeavour to agree a variation to this Agreement.  If the parties cannot agree such a variation within a reasonable period (being not more than 10 days) following notice from Fabric Digital Limited to the Customer requesting such variation, and Resource utilisation continues to exceed those limits, the Customer will be deemed to be in material breach of this Agreement for the purposes of Clause 14. 

7.4 The Customer acknowledges that Fabric Digital Limited does not purport to monitor the content of the Website or the use of the Services.

7.5 Where Fabric Digital Limited reasonably suspects that there has been a breach of the provisions of this Clause 7, Fabric Digital Limited may suspend any or all of the Services and/or the Customer’s access to any or all Services while it investigates the matter. 

7.6 Subject to Clause 7.3, any breach by the Customer of this Clause 7 will be deemed to be a material breach of this Agreement for the purposes of Clause 14. 

7.7 The Customer will indemnify and will keep indemnified Fabric Digital Limited against all damages, losses and expenses (including legal expenses) arising as a result of any breach by the Customer of this Clause 7, and any claim that the Website Content or Customer Works constitute Unlawful Content, or any legal proceedings relating to such a claim.

8.  CHARGES AND PAYMENT 8.1 Fabric Digital Limited will issue invoices for the Charges to the Customer from time to time in advance during the Term as set out in this Agreement. (a) Before commencing the Fabric Digital 5 Step Website Build Process a deposit is required.  This deposit is non-refundable. 

8.2 The Customer will pay the Charges to Fabric Digital Limited within the earlier of: (a) 7 days of the date of issue of an invoice issued in accordance with Clause 8.1; or (b) on or before the relevant due date shown on invoice issued in accordance with Clause 8.1; or (c) on or before the relevant due dates set out in the Proposal. (d) or as per direct debit schedule agreed to on the Business Application form. 8.3 All Charges stated in or in relation to the Agreement are stated exclusive of GST, unless the context requires otherwise.

8.4 Charges must be paid in accordance with the terms of this Agreement and the Proposal. 

8.5 If the Customer does not pay any amount properly due to Fabric Digital Limited under or in connection with the Agreement, the Customer agrees that Fabric Digital Limited may: (a) charge the Customer interest on the overdue amount at the rate of 2.5% per month which interest will accrue daily until the date of actual payment and will be compounded monthly; (b) refer the debt to Fabric Digital Limited’s nominated debt collection agency; (c) release the Customer’s details to Fabric Digital Limited’s nominated credit reporting agency; (d) claim all costs related to debt recovery from the Customer. (e) restrict or cease provision of services to the Customer as outlined in the Agreement. 

8.6 Flo2Cash Limited is the duly appointed agent to execute Direct Debit payments on behalf of Fabric Digital Limited. Direct Debit Payments will be executed in the following manner: (a) Flo2Cash Limited will charge the customer NZD $9.20 (exclusive of GST) for each failed, rejected, or dishonoured Direct Debit. (b) After the second Direct Debit attempt fails for an individual payment, a final demand notification and a Direct Debit for the full balance outstanding amount will be attempted. (c) In the event that 3 (three) consecutive attempts to debit the Customer account has failed, the debt will be referred to the receivable management company Credit Watch International Limited and/or its solicitors for collection and the Customer will be liable for all recovery costs as provided in the terms and conditions of the Direct Debit.

8.7 Charges for any applicable monthly running costs as outlined in this Agreement will begin at the Implementation Date.

8.8 Fabric Digital Limited has the right to increase its fees and charges by providing the Customer 30 days notification of such an increase.

8.9 Unless otherwise specified, any website related recurring monthly charges (eg. Support Packages) will begin 8 weeks from the initial signing of the contract. 

9.  INTELLECTUAL PROPERTY RIGHTS 9.1 All Intellectual Property Rights in the Website Content, and Customer Works will, as between the parties, be the property of the Customer, subject always to the other terms of the Agreement.  

9.2 All Intellectual Property Rights in the Design Elements will, as between the parties, be the property of Fabric Digital Limited and, from the Deployment Date of the Website, Fabric Digital Limited grants to the Customer a non-exclusive worldwide licence to use the Design Elements in connection with the Website, subject always to the other terms of the Agreement, and providing the Customer must not: (a) sell, resell, rent, lease, supply, distribute or redistribute the Design Elements; (b) use the Design Elements in connection with any website, web application, script, computer program or software (other than the Website); or (c)  alter or adapt or edit the Design Elements.

9.3 Design Elements created by Fabric Digital Limited can be supplied to the Customer upon request and in an appropriate format as determined by Fabric Digital Limited.  

9.4 The Third Party Works will be either (at the option of Fabric Digital Limited):

(a) supplied in accordance with the relevant licensor’s standard terms for online use; (b) supplied on licence terms notified by Fabric Digital Limited to the Customer; (c)  sub-licensed by Fabric Digital Limited to the Customer on terms notified by Fabric Digital Limited to the Customer. 

9.5 Notwithstanding any other provision of the Agreement, the assignments and licences granted by Fabric Digital Limited under the Agreement are subject to the payment by the Customer of all amounts owing to Fabric Digital Limited in full and on time.  In the event that the Customer owes any amount to Fabric Digital Limited and fails to pay that amount to Fabric Digital Limited within 14 days of receiving a notice: (a) requiring it to do so; and (b) specifying that the assignment will revert and the licences will terminate if the amount repays unpaid, then Fabric Digital Limited may immediately revert the assignments and terminate the licences granted by Fabric Digital Limited under the Agreement by giving written notice of reversion and termination to the Customer.

9.6 Subject to Clause 9.4, upon and following the termination of the Agreement, any licence granted by Fabric Digital Limited to the Customer will continue notwithstanding termination, and this Clause 9 will continue to apply. 

9.7 Fabric Digital Limited may include a statement of credit together with a link to Fabric Digital Limited's website on each page of the Website in an unobtrusive position.  The Customer will retain any such credit and link in any adapted version of the Website, and the Customer will (and will only) remove any such credit and link from the Website at Fabric Digital Limited’s request. 

9.8 The Customer grants to Fabric Digital Limited a non-exclusive worldwide licence, under the Intellectual Property Rights in the Website, to use the Website for the purpose of marketing Fabric Digital Limited's services to third parties.

10. WARRANTIES 

 10.1  The Customer warrants to Fabric Digital Limited that it has the legal right and authority to enter into and perform its obligations under the Agreement. 

10.2  Fabric Digital Limited warrants to the Customer: (a) that it has the legal right and authority to enter into and perform its obligations under the Agreement; and (b) that it will perform its obligations under the Agreement with reasonable care and skill; and 

10.3  The Customer acknowledges that Fabric Digital Limited has designed the Website to work with the most common and widely used version of Microsoft Internet Explorer, Safari and Mozilla Firefox web browser technology at the Effective Date of this Agreement , and Fabric Digital Limited does not warrant that the Website will work with any other web browser technology. 10.4  The Customer further acknowledges that Fabric Digital Limited does not purport to provide any legal advice under the Agreement or in relation to the Website and Fabric Digital Limited does not warrant that the Website will not give rise to any civil or criminal legal liability on the part of the Customer or any other person. 10.5  All of the parties' liabilities and obligations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement.  To the maximum extent permitted by applicable law, no other terms concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

11. LIMITATIONS OF LIABILITY 11.1  Nothing in the Agreement will exclude or limit the liability of either party for: (a) death or personal injury caused by that party's negligence; (b) fraud or fraudulent misrepresentation on the part of that party; or (c)  any other liability which may not be excluded or limited under applicable law. 11.2  Subject to Clause 11.1, Fabric Digital Limited's liability to the Customer under or in connection with the Agreement, any 3rd party agreement or contract, or any collateral contract, whether in contract or tort (including negligence), will be limited as follows: (a) Fabric Digital Limited will not be liable for any: (i)  loss of profits, income or anticipated savings, (ii)  loss or corruption of any data, database or software, (iii) reputational damage or damage to goodwill; (iv) loss of any commercial opportunity, or   (v) indirect, special or consequential loss or damage; (b) Fabric Digital Limited will not be liable for any losses arising out of a Force Majeure Event; and (c)  Fabric Digital Limited's liability in relation to any event or series of related events will in no circumstances exceed the greater of: (i)  NZD $5,000; ands (ii)  the total amount paid (or, if greater, payable) by the Customer to Fabric Digital Limited under the Agreement during the 12 month period immediately preceding the event or series of events.

13.   CONFIDENTIALITY AND PUBLICITY 13.1  The Customer will keep confidential the Confidential Information, and will not disclose that Confidential Information except as expressly permitted by this Clause 13. 13.2  The Customer will protect the confidentiality of the Confidential Information using at least reasonable security measures. 13.3  The Confidential Information may be disclosed by the Customer to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information. 13.4  These obligations of confidentiality will not apply to Confidential Information that: (a) has been published or is known to the public (other than as a result of a breach of the Agreement); (b) is known to the Customer, and can be shown by the Customer to have been known to it, before disclosure by Fabric Digital Limited; or (c)  is required to be disclosed by law, or by an order (binding upon the relevant party) of a governmental authority, a regulatory body or a stock exchange. 13.5  The Customer will not make any public disclosure relating to the subject matter of the Agreement (including press releases, public announcements and marketing materials) without the prior written consent of Fabric Digital Limited. 14.   TERMINATION14.1  Either party may terminate the Agreement at any time by giving at least 30 days written notice to the other party. 14.2  Either party may terminate the Agreement immediately by giving written notice to the other party if the other party: (a) commits any material breach of any term of the Agreement, and: (i)  the breach is not remediable; or (ii)  the breach is remediable, but other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or (b) fails to pay any amount due under the Agreement in full and on time. (c)  persistently breaches the terms of this Agreement. 14.3  Either party may terminate this Agreement immediately by giving written notice to the other party if: (a) the other party: (i)  is dissolved; (ii)  ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due;  (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors; (b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; (c)  an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); (d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.

15.   EFFECTS OF TERMINATION 

 15.1  Upon termination all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 7, 8.5, 9, 10, 11, 13, 15, and 16.3 to 16.14. 15.2  Termination of the Agreement will not affect either party’s accrued rights (including Fabric Digital Limited's accrued rights to invoice and to be paid the Charges) as at the date of termination. 

15.3  If the Agreement is terminated under Clause 14.1, or by the Customer under Clause 14.2 or 14.3 (but not in any other case): (a) The Customer will not be supplied, and is not entitled to electronic copies of:  (i) the Software Elements; (ii)  the Design Elements; (iii) the Third Party Works. (b) Fabric Digital Limited will provide such assistance as is reasonably requested by the Customer to enable the transfer of the Domain Name(s) to the Customer or another service provider, subject to payment of Fabric Digital Limited's reasonable expenses; and (c)  the Customer will be entitled to a refund of any Charges paid by the Customer to Fabric Digital Limited in respect of any Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Charges to Fabric Digital Limited (such amount to be calculated by Fabric Digital Limited using any reasonable methodology). 

15.4  Save as provided in Clause 15.3(c), the Customer will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to Fabric Digital Limited. 

15.5  If Early Termination occurs under the Agreement Early Termination Charges will be charged to the Customer as outlined in this Agreement and the Proposal.   The CustomerThe addressee, postal address, fax, and email address specified in this Agreement   

16.2  A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below): (a) where the notice is delivered personally, at the time of delivery; (b) where the notice sent by priority mail, 48 hours after posting; and (c)  where the notice sent by fax or email, at the time of the transmission (providing the sending party retains written evidence of the transmission). 

16.3  No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

16.4  If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect.  If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted). 

16.5  Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties. 

16.6  The Agreement may not be varied except by a written document signed by or on behalf of each of the parties. 16.7  Fabric Digital Limited may freely assign its rights and obligations under the Agreement without the Customer's consent.  Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any rights or obligations under the Agreement. 

 16.8  Fabric Digital Limited may subcontract any of its obligations under the Agreement to any third party without the Customer's consent. 

 16.9  The Customer will not, without Fabric Digital Limited's prior written consent, either during the term of the Agreement or within 6 months after the date of effective termination of the Agreement, engage, employ or otherwise solicit for employment any employee or contractor of Fabric Digital Limited who has been involved in the performance of the Agreement. 

 16.10 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under the Agreement. 

16.11 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party.  The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party. 

16.12 The Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of the Agreement.  Subject to Clause 11.1, each party acknowledges that no representations or promises not expressly contained in the Agreement have been made by or on behalf of the other party. 

16.13 The Agreement will be governed by and construed in accordance with the laws of New Zealand and the courts of New Zealand will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement. 

16.14 Fabric Digital Limited may vary the terms of this agreement from time to time, and will do so by updating the online terms and conditions, and sending notification by email. Once notification has been given in accordance with clause 16.2 these new terms will be considered binding and enforceable under this Agreement. 

16.15 The Customer authorises Fabric Digital Limited to act as agent on the Customer’s behalf for all Domain Name(s) as outlined in the Proposal. Such authorisation is restricted to activities related to the registration and management of the Customer’s Domain Name(s), and may include (but is not limited to): (a) submitting Service Requests to the Registrar on the Customer’s behalf, and dealing with the Registrar; (b) entering into a contract with the Registrar on behalf of the Customer, in the form of the Domain Name Registration process; (c)  disclosure of personal information to the Registrar in order to accurately register and manage the Domain Name(s). 

Digital marketing terms and conditions

Fabric Digital Limited (Fabric) is an online marketing and web design agency, providing online marketing products and services for businesses in New Zealand and internationally. The “Fabric Business Application Form” sets forth which online marketing services are being purchased by the “Group/organisation”, the costs for such online marketing services, and other relevant information. These terms and conditions “Standard terms and conditions” are incorporated by reference into and made a part of any business application form, and govern the relationship between you and Fabric (Fabric Digital Limited). By signing “business application form” and ticking “you have read the terms and conditions” on the “Fabric Business Application Form” you agree to the terms set forth “Agreement”.

1. Marketing Services

The marketing services include, but are not limited to, the following products: Media products (which includes: Fabric Search Engine Marketing (publishers such as Google, Yahoo and Bing), Fabric Display Advertising, Fabric Remarketing, Fabric Search Engine Optimisation).

2. Fees

(a) Identification of fees. You agree to pay the amount set forth in the business application form in accordance with section 3 or as may be further explained in the product terms (the “fees”) The fees are generally divided into Product fees (e.g Campaign media, management and optimisation fees payable for Search Engine Marketing), Services Fees (e.g Tracking services fees payable for Search Engine Marketing) and Set-up fees. Fabric reserves the right to change any of the fees at any time, provided that such changes will not take effect until a new business application form is signed.

(b) No Pass-Through Obligations. You are not entitled to any credits, discounts, rebates, refunds provided to Fabric by its third-party publisher partners (the “Publishers”)

3. Payment Terms

(a) General. Once an Business Application Form has been accepted by Fabric Digital Limited, you will be responsible for payment in full of all Fees. The Fees shown are not inclusive of sales, use or similar taxes which may be applicable. If applicable, sales, use and similar taxes shall be your sole responsibility and may be assessed on the invoice. All payments are due in New Zealand dollars.
(b) Manner of Payment. You must pay for all amounts payable under this Agreement either by credit card (the “Client Card”), by direct debit (electronic debit from your bank account), or such other form of payment such as bank transfer paid on invoice as Fabric Digital Limited may, in its sole discretion, permit. With Fabric Digital Limited’s prior approval, under certain circumstances you may pay by cheque. In the case of payment through direct debit, no amounts owing are considered paid until the electronic debit has been received by Fabric Digital Limited’s bank.

(c) Timing of Payment. Fees, as identified on the Business application form, are due in advance of each Cycle as more fully described in the Product Terms. If there are Set-Up Fees (as set forth on the Business application form), such Fees shall be paid in advance together with all amounts owed for the first Cycle. Fabric Digital Limited shall have the right to charge the Client Card or debit from your account through direct debit the Fees in accordance with these Standard terms and conditions and the Product Terms. You understand and acknowledge that all amounts owed must be paid in advance and that, in addition to being in breach of your contractual obligations, your campaign or service may be paused or terminated if timely payment is not received.

(d) Failure to pay. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Company on the due date(s) for any payment under this Contract, the Company may: (i) Charge interest on such sum from the due date until date paid at a rate 2% above the unsecured overdraft rate from time to time of the Company’s bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand; and all other payments due until the expiry or termination date of the Contract shall remain due and payable; and/or (ii) Suspend the Adwords Advertisement Link until payment has been made in full or terminate this Contract. All sums due to the Company shall be paid without deduction or set off and in cleared funds. In the event of any cheque(s) or payment of any nature being reversed or returned unpaid, or not honoured, the Company reserves the right to charge an administration fee of $40.00 (plus GST) per unsuccessful payment.

(e) Pro-rater. The first payment will be pro-rated dependent on when the scheduled live date is (target live date) added on the front of the business application form. For example if the target start date is set for the 15th of the month and there is 30 days in the month, the pro-rata bill will be 50% of the total campaign cycle charge.
(f) Cancellation of Services. When your service is cancelled your final cycle and report will use and un-spent budget up. Any media budget left over that needs to be spent cannot be refunded, transferred or credited

4. The Adwords

(a) The Company may, from time to time and without notice, change the Adwords in order to comply with any applicable industry codes, good practice or legal requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Adwords.
(b) The Adwords are subject to the Google review process and from time to time display of the Adwords link may be suspended or interrupted pending Google verification that the advertisement and associated website content meet Google advertising policies.

(c) The Company is not responsible for any interference or restriction in access to the Adwords Advertising link by any other third party.
(d) If after Commencement the Customer requests a change to the Adwords, the Company shall, within a reasonable time, provide a written estimate to the Customer of: (d1) the likely time required to implement the change; (d2) any variations to the Advertising Fee or any additional cost or fee payable by the Customer arising from the change; and (d3) any other impact of the change on the terms of the Contract; and (d4) the Customer can then elect to proceed with the change or not.
(e) The Company may charge for its time spent in assessing and responding to a request for a change to the Adwords by the Customer whether the Customer proceeds with the change or not.

5. Tracking Information

(a) Business agrees that Company may apply certain tracking solutions to the Business’ Campaign. Specifically, Business agrees that Company has the right to do the following for each Campaign: (i) Provision “Tracking Phone Numbers” that will be displayed to the user in lieu of the Business’ phone number and which will forward to the Business’ phone number; (ii) Substitute Business’ e-mail address(es) with other email address (es) in order to be able to track e-mails associated with the Campaign; (iii) Require users to provide registration information in order to print a Business’ coupon; (iv) Deploy click tracking code to track the pages that users may access as a result of the Campaign. Business acknowledges that, for local Business phone numbers, Company will first try to provision a local Tracking Phone Number, but, in the event such a local Tracking Phone Number is not available, Business hereby gives Company permission to provision a toll free Tracking Phone Number instead. Business further agrees that, as part of provisioning Tracking Phone Numbers, Company has the right, but not the obligation, to turn on enhanced phone tracking features. that the call may be recorded. The exact message to be played to the caller is at the sole discretion of Company or Company’s vendors.

(b) “Website” shall refer to the website that users will visit when they click on one of the Business’ Ads. Company currently provides two Website options: (i) With an “Existing Website”, Business agrees that Company will direct all users who click on Business’ Ads to a website owned and operated exclusively by Business. Business hereby gives Company permission – during the duration of the Campaign – to do one or more of the following for users visiting the Business’ website as part of the Campaign ONLY: (A) substitute Tracking Phone Numbers for the Business’ website phone numbers; (B) substitute Tracking E-Mail for the Business’ website e-mail addresses; (C) place click tracking code on pages (URLs) specified by Business; (D) place a frameset above the Business’ website with the Tracking Phone Numbers and Tracking E-Mail form link as well as additional pertinent Campaign information; (E) place a frameset above the Business’ website with links to the Company’s website. Business agrees that users visiting the Business’ website other than as a result of the Campaign will not see any of the above substitutions or modifications.

6. Term & Cancellation

(a) Term. The Agreement shall commence upon execution of an business application form and, unless otherwise provided in the Product Terms, shall continue until all Marketing Services under business application form have been completed or terminated in accordance with the terms of this Agreement.
(b) Minimum Term. Unless otherwise provided in the business application form, the Marketing Services supplied by Fabric Digital Limited to you are supplied for at least the Minimum whole and complete Cycles set forth in the Business application form. The Marketing Services will be continued to be supplied after the Minimum Term until you cancel or terminate. Sections 4(c) to (e) (below) apply to the termination of the Marketing Services before and after the expiry of the Minimum Term.

(c) Termination (without cause). (i) If you give written notice to Fabric Digital Limited of the termination of the Marketing Service (the “Termination Notice”) at least 14 days prior to the expiry of the Minimum Term then such termination will take effect on the on the expiry of the Minimum Term. (ii) If you give written notice of the termination of the Marketing Service less than 14 days before the expiry of the Minimum Term or at any time after the expiry of the Minimum Term, then such termination will take effect on the date of expiry of the first full Cycle following the date of the termination notice. For example, if the Minimum Term is 4 Cycles and you give the Termination Notice while you are in the middle of 5th Cycle, the termination will be effective after completion (and payment) through and including the 6th Cycle). (iii) You must pay all Fees in relation to the Marketing Service that accrue prior to the date of termination. (iv) Fabric Digital Limited may terminate at any time for any reason on written notice to you (which may be provided by email).

(d) Termination of Defaulting party. In the event of a default by a client, the client shall be provided written notification to cure such default from the company. The defaulting client shall have seven (7) days following receipt of such notice to cure said default (the “cure period”). If the defaulting client fails to cure the default within the cure period, the company may pursue any and all remedies that may be available, at law and in equity, to cure such default, including pausing the campaign and the remedy of specific performance if it is available.

(e) Cumulative Remedies. Except as otherwise expressly set forth in this agreement, the rights and remedies provided by this agreement are cumulative and the use of any on right of remedy by any party will not preclude or constitute a waiver of its right to use any or all other remedies. Such right and remedies are given in addition to any other rights the company may have by law, statute, ordinance or otherwise.
(f) Termination Revocation. You may, on written notice to Fabric Digital Limited (email is acceptable) revoke such termination within fourteen (14) days after you have provided Fabric Digital Limited with the Termination Notice, in which case the Business application form will be reinstated and all applicable campaigns, if they had been stopped, will be re-initiated upon payment in full of all amounts owed.

(g) Termination for Cause. Either you or Fabric Digital Limited may terminate the Agreement (which will terminate all current Business application forms) on 30 days prior written notice (the “Notice Period”) if the other party is in material breach of its obligations hereunder and such breach has not been materially cured by the conclusion of the Notice Period. For the avoidance of doubt, Fabric Digital Limited makes no guarantees with respect to the performance of any campaign or any other service and therefore such performance shall not be a basis for termination pursuant to this Section.

(h) Campaign Pauses. Fabric Digital Limited may pause a Media Product campaign at any time for operational reasons. You may also request a pause in a campaign, however, it will be in Fabric Digital Limited’s sole discretion to determine if a campaign pause is appropriate. A pause date range need to be sent to Fabric Digital in writing. The pause date range needs to be within 30 days unless agreed upon by Fabric Digital Limited.
(i) No Refunds. You understand and agree that subject to Section 13(c) you will not be entitled to any refunds of amounts already paid to Fabric Digital Limited, unless Fabric Digital Limited terminates our agreement with you, in which case you shall only be entitled to a refund for the unspent balance of the then applicable Cycle Payment (as defined in the applicable Product Terms) or equivalent, which shall be your sole remedy.

(j) Effect of Termination; Survival. You understand and acknowledge that due to the nature of the Internet, certain information regarding you that was posted on the Internet as part of the Marketing Services may continue to be available on the Internet following termination of Marketing Services and/or the Agreement. All provisions of the Agreement that by their sense or nature should survive termination of the Agreement (including, without limitation, all limits of liability, indemnity obligations, and confidentiality obligations) shall survive. Without limiting the generality of the foregoing, in the event of any termination, you shall remain liable for any amounts due to Fabric Digital Limited as of the effective date of termination.

7. Privacy Consideration

Privacy Considerations. You shall, at all times, post a privacy policy on your native web site (the “Existing Site”) and comply with such privacy policy. The privacy policy must comply with all applicable laws. You shall ensure that your privacy policy does not contain provisions that are inconsistent with the nature of the services being provided by Fabric Digital Limited. You understand and acknowledge that your failure to maintain a privacy policy that complies with the foregoing requirements may
(a) result in your campaign not being run or being suspended and

(b) expose you and Fabric Digital Limited to liability which you shall fully indemnify Fabric Digital Limited for.

8. Limitation of Liability

8.1 This clause 8 sets out the entire liability of the Company (including any liability for the acts or omissions of its employees, officers, agents, consultants, and subcontractors) to the Customer in respect of: (a) any breach of the Contract; (b) any use made by the Customer or any other person of the Adwords or any part of them; (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection in any way with the Contract or the Adwords.
8.2 The Company shall take all reasonable care and shall use its best endeavours to provide ongoing Adwords Advertising Links that provide a first page position on Google; subject always to these Conditions, in particular but not limited to clauses 4.3 and 6 above.

8.3 All other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.4 The Customer acknowledges that Adwords is a service intended for business customers for business use and the provisions of the Consumer Guarantees Act are do not apply.
8.5 The Customer acknowledges that:- (a) The Company is not an agent, employee or representative of Google and is an independent Google advertising professional. (b) The Company cannot and does not make any representations or warranties on behalf of Google or any of its subsidiaries or members of its advertising networks. (c) The Company does not guarantee the performance of Google and shall not be liable for any act or omission of Google that may result in any loss or damage to the Customer.
8.6 The Company shall have no liability to the Customer if it is prevented from, or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control.
8.7 To the extent permitted by law: (a) the Company shall not be liable for any claim, costs, damages, liability or loss of any nature suffered by the Customer or any third party in connection with this Contract or with the Adwords. (b) Notwithstanding subclause (a) above, if the Company does have any liability to the Customer, the Company’s total liability shall be limited to the equivalent of the most recent three months Advertising Fees paid by the Customer under this Contract.
8.8 No claim may be made or action taken by the Customer against the Company in connection with this Contract more than six months after earliest alleged breach or event or omission or more than three months after the date of termination of this Contract, whichever is earlier.
8.9 For the avoidance of doubt, the Company shall have no liability to the Customer if the Customer is subject to any internet fraud, spam attack and/or any other malicious activities, and the safe and secure operation of the Customer’s website shall remain the sole responsibility of the Customer.

9. Privacy of Information

9.1 The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency in connection with this Contract, and personal data about the Customer will be processed by and on behalf of the Company and retained by the Company during the term of and in connection with this Contract.
9.2 Except as provided in this clause, the Company shall not use the Customer’s information or provide the Customer’s information to any third party without the Customer’s specific permission other than is necessary to enable provision of the services by the Company.

10. General Clauses

10.1 No variation to this Contract is valid unless made, or agreed to, in writing by the Company. A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given.
10.2 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.

10.3 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
10.4 The Company may subcontract, assign, novate or delegate in any manner any or all of its rights and obligations under the Contract to any third party or agent.
10.5 The Customer may only assign its rights and obligations to a third party with the Company’s consent and the assignee may be required by the Company to enter into a new Contract.
10.6 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
10.7 The interpretation and application of this Contract, and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.
10.8 Any notice or communication given under this license by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to the Company must be sent to growth@fabricdigital.co.nz or to any other email address notified by email to the Customer. Notices and correspondence to the Customer will be sent to the email address provided on the front page of this Contract unless an updated address is provided to the Company in writing.
10.9 A person who is not a party to this license has no right to benefit under or to enforce any of these terms
10.10 This Agreement and the relationship between Business and Company shall be governed by the laws of New Zealand. Any action by either party hereto arising out of or in connection with this Agreement or the Service shall be brought in a court of competent jurisdiction located in New Zealand.