1. Definitions1.1 “Developer” shall mean freewebsites.co.nz. and its successors and assigns.
1.2 “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
1.3 “Guarantor” means that person (or persons), or entity that agrees herein to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall have the same meaning as in section 2 of the Sale of Goods Act 1908 and are goods supplied by the Developer to the Client (and where the context so permits
shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Developer to the Client and includes any advice or recommendations (and where the context so permits shall include any
supply of Goods as defined supra).
1.6 “Price” shall mean the cost of the goods as agreed between the Developer and the Client subject to clause 4 of this contract.
2. Acceptance2.1 By Submitting an application to us, you indicate your acceptance of these terms of trade
2.2 Any instructions received by the Developer from the Client for the supply of Goods shall constitute acceptance of the terms and conditions contained herein.
2.3 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.4 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or
with the written consent of the manager of the Developer.
2.5 None of the Developer’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Developer
in writing nor is the Developer bound by any such unauthorised statements.
2.6 Either the laser copy or printer proof must be signed showing acceptance of the Goods provided.
2.7 The client accepts to host with the Developer for no less than (36months)
3. Goods / Services3.1 The Goods and/or Services are as described on the invoices, quotation, or any other work commencement forms as provided by the Developer to the Client.
3.2 Whilst every care is taken by the Developer to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof reading of the Goods. The
Developer shall be under no liability whatever for any errors made by the Client in the final proof reading.
4. Price And Payment4.1 The Price of the Goods or Services shall, be the Developer’s the fixed price provided, which shall be binding upon the Developer provided that the Client shall accept in writing
the Developer’s quotation within thirty (30) days.
4.2 Payment is made prior to any work commencing.
4.3 The Developer may by giving notice to the Client (verbally or otherwise) at any time before delivery increase the Price of the Goods or Services to reflect any variation from the
plan of scheduled works or specifications beyond the reasonable control of the Developer which increase the cost of the Goods/Services by more than 10% of the quoted Price.
4.4 At the Developer’s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods or Services and
shall become immediately due and payable.
4.5 Time for payment for the Goods or Services shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be
on completion/delivery of the Goods or Services.
4.6 At the Developer’s sole discretion, for certa in approved Clients payment will be on the 15th of each month
4.7 Payment will be made by Direct Credit, or Automatic payments by any other method as agreed to between the Client and the Developer.
4.8 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any
quotation given by the Developer.
5. Delivery Of Goods5.1 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. Delivery of the Goods shall be made to the Client at the
Developer’s address.
5.2 Where there is no agreement that the Developer shall send the Goods to the Client, delivery to a carrier at limited carrier’s risk at the expense of the Client is deemed to be delivery
to the Client.
5.3 The costs of carriage and any insurance which the Client reasonably directs the Developer to incur shall be reimbursed by the Client (without any set-off or other withholding
whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Client’s agent.
5.4 The failure of the Developer to deliver shall not entitle either party to treat this contract as repudiated.
5.5 The Developer shall not be liable for any loss or damage whatever due to failure by the Developer to deliver the Goods (or any of them) promptly or at all.
6. Risk6.1 If the Developer retains property in 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 prior to property in them passing to the Client, the Developer is entitled, without prejudice to any of its other rights or remedies
under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the
Goods. This applies whether or not the Price has become payable under these terms and conditions. The production of these terms and conditions by the Developer is sufficient
evidence of the Developer’s rights to receive the insurance proceeds without the need for any person dealing with the Developer to make further enquiries.
7. Consumer Guarantees Act 19937.1 This agreement is subject, in all cases except where the Client is contracting within the terms of a trade/business (which cases are specifically excluded), to the provisions of the
Consumer Guarantees Act 1993.
8. Warranty8.1 For Goods not manufactured by the Developer the warranty shall be the current warranty provided by the manufacturer of the Goods. The Developer shall be under no
liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty.
9. Default & Consequences Of Default9.1 If you default in performing your obligations under this agreement and we in cur costs in enforcing our rights under this agreement, you shall pay these costs (including all
legal and disbursements on a solicitor/client basis) to us our duly authorised agent on demand
9.2 We reserve the right to place any debt owed by you with a collection agency for recovery. The collection fee, together with the original amount of debt including intrest and
the costs referred to in 10.1
9.3 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a compounding rate of 2.5% per calendar month and
shall accrue at such a rate after as well as before any judgement.
9.4 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Developer from and against all of the Developer’s costs and disbursements
including on a solicitor and own client basis and in addition all of the Developer’s nominees costs of collection.
9.5 Without prejudice to any other remedies the Developer may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Developer
may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. The Developer will not be liable to the Client for
any loss or damage the Client suffers because the Developer exercised its rights under this clause.
9.6 If any account remains unpaid at the end of the second month after supply of the goods or services the following shall apply: An immediate amount of the greater of $25.00
or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
9.7 In the event that:
(a) any money payable to the Developer becomes overdue, or in the Developer’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,
then without prejudice to the Developer’s other remedies at law
(i) the Developer shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other
remedies; and
(ii) all amounts owing to the Developer shall, whether or not due for payment, immediately become due and payable.
10. Title10.1 It is the intention of the Developer and agreed by the Client that property in the goods shall not pass until:
(a) The Client has paid all amounts owing for the particular Goods, and
(b) The client may gain ownership of the website after three years (36 month), and
(c) The Client has met all other obligations due by the Client to the Developer in respect of all contracts between the Developer and the Client, and that the Goods, or proceeds
of the sale of the Goods, shall be kept separate until the Developer shall have received payment and all other obligations of the Client are met.
10.2 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from the Developer to the Client the Developer may give notice in writing to the Client to return the Goods or any of
them to the Developer. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease;
(b) If the Client fails to return the Goods to the Developer then the Developer or the Developer’s agent may enter upon and into land and premises owned, occupied or used by
the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby
caused.
11. Personal Property Securities Act 199911.1 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 Developer to the Client (if any) and all Goods that will be supplied in the future by the Developer to the
Client during the continuance of the parties relationship;
11.2 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 Developer 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 Developer 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 Developer;
(d) give the Developer not less than fourteen (14) days prior written notice of any proposed change in the Client’s name and/or any other change in the Client’s details
(including but not limited to, changes in the Client’s address, facsimile number, or business practice); and
(e) immediately advise the Developer 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.
(f) The Developer and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions.
(g) The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
11.3 Unless otherwise agreed to in writing by the Developer, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
11.4 The Client unconditionally ratifies any actions taken by the Developer under and by virtue of the power of attorney given by the Client to the Developer under clauses 11.1
to 11.3.
12. Intellectual Property12.1 Where the Developer has designed or drawn Goods or created computer programmes for the Client, then the copyright in those designs, drawings and programmes shall remain
vested in the Developer, and shall only be used by the Client at the Developer’s discretion and until clause 10.1(b) has been completed.
12.2 Conversely, in such a situation, where the Client has supplied drawings or computer programmes, the Developer in its sale conditions may look for an indemnity (the specifications
and design of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Developer).
12.3 Where any designs or specifications or computer programmes have been supplied by the Client for manufacture by or to the order of the Developer then the Client warrants that
the use of those designs or specifications or computer programmes for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
13. Cancellation and non payment13.1 The Developer may cancel these terms and conditions or cancel delivery of Goods and Services at any time before the Goods are delivered by giving written notice. On giving
such notice the Developer is not required to repay any monies that have been transferred. The Developer shall not be liable for any loss or damage whatever arising from such
cancellation.
13.2 If the client cancels the contract after 30 days, and work has been partially/fully completed the client is liable to pay one years (12months), payable hosting.
13.3 All cancellations must be notified by giving written notice.
14. Privacy Act 199314.1 The Client and the Guarantor/s (if separate to the Client) authorises the Developer to collect, retain and use any information about the Client, for the purpose of assessing the
Clients creditworthiness or marketing any Goods and Services provided by the Developer to any other party.
14.2 The Client authorises the Developer to disclose any information obtained to any person for the purposes set out in clause 14.1
14.3 Where the Client is a natural person the authorities under (clause 14.1 & 14.2) are authorities or consents for the purposes of the Privacy Act 1993.
15. Clients Disclaimer15.1 The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any
servant or agent of the Developer and the Client acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Developer shall not be bound
by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Client and shall
not be transferable to any subsequent Client.
16. General16.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall
not be affected, prejudiced or impaired.
16.2 All Goods and Services supplied by the Developer are subject to the laws of New Zealand and the Developer takes no responsibility for changes in the law that affect the Goods or
Services supplied.
16.3 The Developer shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the
Developer of these terms and conditions.
16.4 In the event of any breach of this contract by the Developer the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Developer
exceed the Price of the Goods.
16.5 Neither party shall be liable for any default due to any act of God, terrorism, war, strike, lock out, industrial action, flood, storm or other event beyond the reasonable control of
either party.
16.6 The Client shall not set off against the Price amounts due from the Developer.
16.7 The Developer may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
16.8 The Developer reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and
conditions, that change will take effect from the date on which the Developer notifies the Client of such change.
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