Terms of Trade
In these terms and conditions:
- "Contract" means the contract between the Customer and the Supplier for the provision of Goods and/or Services by the Supplier of which these terms and conditions form part.
- "Customer" means the person to whom the Goods and/or Services are to be supplied.
- "Fee" means:
- Where a quote or estimate has been given, the fee for the work recorded in that quote; and/or
- the Supplier's usual charges for completing the work plus additional charges pursuant to these terms and conditions, plus GST.
- "Quote" means any quotation or estimate provided by or on behalf of the Supplier.
- "Services" means any work supplied by the Supplier, including but not limited to, website development and hosting, copywriting, editing, content creation, communications, strategy and planning, and any other related services.
- “Supplier” means TrikeWeb NZ Limited trading as TrikeWeb NZ, its assignors and/or successors.
- Acceptance of Terms and Conditions
- These terms and conditions apply to all Services supplied by the Supplier to the Customer.
- Contracting the Supplier to carry out Services or acceptance of a Quote provided by the Supplier constitutes acceptance by the Customer of these terms and conditions.
- Fees and Payment
- The Customer will pay to the Supplier on a time and materials basis, invoices issued for Services undertaken in accordance with this clause, unless prior alternative arrangements are made and agreed in writing.
- The Supplier may issue one or more invoice(s) to the Customer for Services completed.
- The Customer shall pay the Fee as recorded in any invoice issued by the Supplier within seven (7) days of the date of such invoice, unless otherwise agreed in writing.
- If the Customer does not pay the Supplier's invoice on time:
- Interest at ten (10)% per annum (calculated daily) will be payable on any overdue payment for the period from when payment is due until payment (together with interest) is made.
- The Supplier may stop the provision of Services and withhold the further supply of Services.
- The Customer will be liable for all expenses (including solicitor - own client legal costs) incurred by the Supplier in obtaining any overdue payment.
- Quotes and Estimates
- All Quotes and estimates are provided strictly on the following basis:
- Any Quote is only valid for fourteen (14) days from the date of the Quote unless otherwise agreed.
- If additional Services are required that could not be foreseen by the Supplier at the time of providing the Quote, then the Supplier may at its option either cancel this Contract or charge for such additional Services required at the Supplier's usual rate.
- Cancellation of Services prior to Completion
Once any Quote is accepted by the Customer, the Customer will be responsible for full payment of all Fees. If the Customer cancels the Work prior to completion then the Supplier will issue an invoice for their Services completed to date on a time basis in accordance with clause 3.
- Validity of Payment
- The Customer acknowledges that:
- All payments made to the Customer's account with the Supplier are in the ordinary course of the Customer's business; and
- All payments to the Customer's account are received by the Supplier on the reasonably held belief that those payments are valid unless the Customer advises otherwise in writing; and
- By accepting any payments on or after the due date for payment the Supplier has altered its position in reliance on the validity of those payments.
- Consumer Guarantees Act
The Customer acknowledges that the Goods and Services are supplied on the basis that they are being acquired for business purposes, and as such pursuant to section 43 of Consumer Guarantees Act 1993 (“Act”), the provisions of the Act will not apply to this Contract.
- Customer's Warranties
- The Customer warrants with the Supplier that:
- any information provided to the Supplier is true and correct;
- the Customer owns or has received permission from the rightful owner(s) of any information provided to the Supplier for inclusion in the Work.
- The Customer agrees to indemnify the Supplier against any claim from a third party resulting from a breach of clause 8.1.
- Intellectual Property
The Supplier and Customer agree that the ownership rights in all intellectual property of any kind created by the Supplier for the Customer will remain with the Supplier until the Customer makes payment of all money owed by the Customer to the Supplier (whether under these terms or otherwise). Once all amounts owing are paid by the Customer, the ownership rights to any intellectual property created by the Supplier for the Customer will pass to the Customer, unless by prior agreement in writing.
- Limited Liability
- Except as expressly set out in these terms and conditions, all representations, conditions and warranties (express or implied) applying between the Customer and Supplier, whether under any legislation or otherwise are excluded.
- The Supplier will not be liable to the Customer, whether under any legislation, in contract, on tort (negligence), in equity, or otherwise for any loss of profits or loss of opportunity, or any indirect, special, exemplary, punitive or consequential loss.
- Waiver and Forbearance
All the Supplier's rights will remain in full force despite any delay in enforcement. The Supplier will not be deemed to have waived any condition unless that waiver is in writing and signed by a duly authorised officer of the Supplier. Any waiver will apply only to the particular matter in respect of which it is given.
- The Supplier is entitled at any time to assign its rights under the Contract. The assignee will be entitled to claim full rights of set off or counter claim against the Customer, its charge holders or successors in respect of the debt or part of the debt which is assigned. The Supplier will provide notice to the Customer of any assignment of its rights under the Contract where reasonably possible.
- The Customer is not entitled to assign its rights under this Contract.
- Entire Contract
The parties agree that these terms express the complete agreement between them. There has been no representation made by either party to the other except as expressly set out in this document. There is no inconsistency with the terms of any order that may be lodged by the Customer. If there is any inconsistency then any such order will be of no effect. This contract will not be subject to change or modification except with the prior written consent of both parties.
- Force Majeure
Neither party will be liable for, or will be considered to be in breach of or default under this Contract on account of, any delay or failure to perform as required by this Contract as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimise the impact of the event.
- This Contract (including any unperformed obligations of the Supplier) may be terminated by the Supplier's written notice to the Customer that no further Services will be supplied due to:
- The Customer's default under the Contract; or
- The Customer becoming insolvent; or being subject to the appointment of a receiver, manager, liquidator, or statutory manager; or committing an act of bankruptcy or making a scheme of arrangement with its creditors; or being unlikely to be able to meet its obligations to the Supplier (in the opinion of the Supplier).
- The agreements of the parties will not merge with termination under this clause.
If either party considers that there is a dispute in respect of matters arising out of the Contract, that party shall immediately give notice to the other party setting out details of the dispute. The parties shall endeavour in good faith to resolve the dispute between themselves within fourteen (14) working days of notice of the dispute. Failing resolution, the parties will commence mediation to resolve the dispute if required by either party.
- The following clauses in this part apply only where the Customer is a company incorporated under the Companies Act 1993.
- In consideration of the Supplier agreeing to (from time to time) supply Services to the Customer (at the Guarantor's request) the Guarantor unconditionally guarantees to the Supplier the punctual payment by the Customer of all moneys payable (from time to time) to the Supplier and the performance by the Customer of it's obligations to the Supplier under this Contract.
- This guarantee will not be affected by:
- The granting of any indulgence or concession to the Customer; or
- Any alteration to these terms and conditions; or
- The fact that this guarantee is not signed by all of the directors of the Customer; or
- Any other act, omission or event which but for this provision might operate to discharge, impair or otherwise affect the Guarantor's obligations under this guarantee or any of the rights, powers or remedies conferred upon the Supplier by this guarantee.
- As between the Guarantor and the Supplier the Guarantor may for all purposes be treated as the Customer and the Supplier shall be under no obligation to take proceedings against the Customer before taking proceedings against the Guarantor/s.
- Where two or more persons are named as Guarantors, their obligations under this guarantee are joint and several and a reference to the Guarantor means any one or more or all of them.
- Name of Customer:_____________________
- Name of Guarantor/s:_____________________
The Customer agrees to these terms.
In consideration of the Supplier entering into this agreement with the Customer the Guarantor/s agree/s to these terms and grant the guarantee and indemnity in favour of the Supplier.
- Signed by the Customer:_____________________
- Signed by the Guarantor/s:_____________________
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