GlobalInfo Terms and Conditions
1. Definitions
1.1 “Consultant” means Globalinfo Limited, its successors and assigns or any person acting on behalf of and with the authority of Globalinfo Limited.
1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting the Consultant to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Client’s executors, administrators, successors and permitted assigns.
1.3 “Services” means all Goods (which includes any files, information, printed or virtual material, data or software, models) or Services (which includes any advice or recommendations, technical service and support and training, etc.) supplied by the Consultant to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Web Site” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
1.5 “Prohibited Content” means any content on any advertising media that:
(a) is, or could reasonably be considered to be, in breach of the Broadcasting Act 1989; the Fair Trading Act 1986; 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 (including, but not limited to, the distribution of music files or any other material in which the Client does not own the copyright).
1.6 “Price” shall mean the cost of the Services (plus any Goods and Services Tax (“GST”) where applicable) as agreed between the Consultant and the Client subject to clause 4 of this contract. All pricing is in New Zealand Dollars.
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by the Consultant.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Consultant.
2.3 None of the Consultant’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Consultant in writing nor is the Consultant bound by any such unauthorised statements.
2.4 Once accepted by the Client, the Consultant’s 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.
2.5 Any advice, recommendations, information, assistance or service provided by the Consultant in relation to Services provided is given in good faith, is based on information provided to the Consultant, and the Consultant’s own knowledge, and experience. Whilst it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services, human error is possible under these circumstances, and the Consultant shall make all effort to offer the best solution to the Client.
2.6 The Client accepts that if a choice of design is presented, only one solution is deemed to be given by the Consultant as fulfilling the contract. All other designs shall remain the property of the Consultant unless otherwise agreed in writing.
2.7 The Client accepts and acknowledges that copyright is retained by the Consultant on all design work and other Services provided by the Consultant including text, images, ideas, models, visuals and illustrations unless specifically released in writing and after all costs have been settled.
2.8 Where applicable, the Client acknowledges and accepts that the Price stated will remain fixed for an initial period as stated from the date of this contract and will then be subject to revision on the basis of the movement in the Consumer Price Index (CPI).
2.9 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on the Consultant’s website and/or in the Consultant’s Service Contract. If there are any inconsistencies between these documents then the terms and conditions contained in this document shall prevail.
2.10 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.11 The Consultant shall reserve the right, at their discretion to decline to provide any Services which does not fit with the Consultant’s business practices.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that the Consultant shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the Consultant in the formation and/or administration of this contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Consultant in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Consultant; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Client shall give the Consultant not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by the Consultant as a result of the Client’s failure to comply with this clause.
5. Authorised Representatives
5.1 Unless otherwise limited as per clause 5.2, the Client agrees that should the Client introduce any third party to the Consultant as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Services, and/or to request any variation thereto, on the Client’s behalf (such authority to continue until all requested Services have been delivered, or the Client otherwise notifies the Consultant in writing that said person is no longer the Client’s duly authorised representative).
5.2 In the event that the Client’s duly authorised representative, as per clause 5.1, is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise the Consultant in writing of the parameters of the limited authority granted to their representative.
5.3 The Client specifically acknowledges and accepts that they will be solely liable to the Consultant for all additional costs incurred by the Consultant (including the Consultant’ profit margin) in providing any Services, or variation/s thereto, requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 5.2 (if any)).
6. Nominated Sub-Contractors
6.1 The Consultant shall engage sub-contractors, as specified in the quotation, acting solely as agent on behalf of the Client and the following shall apply:
(a) the Consultant shall be entitled to enter into contracts with such sub-contractors in the name of the Client; and
(b) the Client shall be responsible for all payments to such sub-contractors; and
(c) where the Consultant pays the sub-contractor’s account on behalf of the Client, the Client shall reimburse the Consultant for the payment of the sub-contractor’s account together with an account-handling fee within seven (7) days (unless specified otherwise) from the date of submission of the account by the Consultant to the Client; and
(d) if the Client does not reimburse the Consultant within seven (7) days from the date of submission of the account in accordance with sub-clause (c) above, the Consultant shall be entitled to enforce any other rights the Consultant may have under clause 24.
6.2 The Consultant does not warrant the accuracy or quality of the sub-contractor’s work or warrant that their recommendations are appropriate or adequate or are fit for their purpose or that they are not given negligently. The Client agrees that they shall not make any demand on the Consultant or commence any legal proceedings against the Consultant, and the Consultant shall have no liability, whether in negligence or otherwise, to the Client in relation to any work performed by the sub-contractor.
7. Price and Payment
7.1 At the Consultant’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by the Consultant to the Client; or
(b) the Consultant’s current price at the date of provision of the Services as indicated on the Consultant’s pricelist; or
(c) the Consultant’s estimated Price (subject to clause 7.3). The final price can only be ascertained upon completion of the Services. Variances in the estimated Price of more than ten percent (10%) will be subject to Client approval before proceeding with the Services; or
(d) the Consultant’s quoted price (subject to clause 7.3) which will be valid for the period stated in the quotation or otherwise for a period of fifteen (15) days.
7.2 A copy of the written estimate or quotation is to be signed and dated by the Client to indicate acceptance and should be returned to the Consultant. As an alternative, the Client may send an official order for the Services via email in reply to the estimate or quotation which will imply the Client’s acceptance of the Consultant’s terms and conditions. The Client accepts that no work will be commenced until acceptance has been supplied to the Consultant as per this clause.
7.3 Additional and/or Varied Services:
(a) The Consultant agrees that there will be no charge in the preparation of the initial quotation (however any site visits may be chargeable), which may include Client discussions, project scoping, research, testing and business analysis, etc. However, in some instances the aforementioned services may be charged to the Client additionally (at the Consultant’s sole discretion). In the event the Client requires proofs, mock-ups, layouts, samples or dummies or printed, typewritten or other good copy and/or edits, this shall be invoiced at the Consultant’s hourly rate unless specified otherwise in the initial quotation, therefore, this variation shall be detailed on the invoice as per sub-clause (g).
(b) All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.
(c) Any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice.
(d) Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at the Client’s request for the job.
(e) Where the performance of any contract with the Client requires the Consultant to obtain products and/or services from a third party, the contract between the Consultant and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to the Consultant, and the Client shall be liable for the cost in full including the Consultant’s margin of such products and/or services.
(f) Whilst every effort will be taken by the Consultant to match virtual colours with physical colours, the Consultant will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client’s computer and/or the final product. Should a physical sample be required this will be provided on request by the Client and will be charged for as an extra and charged contra against final invoice.
(g) The Consultant reserves the right to amend the Price where there is any variation to the accepted plan of scheduled Services, or instructions/specifications, which will be charged for on the basis of the Consultant’s standard hourly rates (and double such rate for any Services provided outside the Consultant’s normal business hours) and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
(h) Unless otherwise agreed, the Client acknowledges that all services and support for email are chargeable in addition to the Price.
(i) The Consultant shall not be held responsible for any amendments made by the Client and/or any third party before or after a design is published as this may compromise the overall system.
(j) Any variation due to a result of any increase to the Consultant in the cost of materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) and labour) will be charged for on the basis of the Consultant’s quotation and will be shown as variations on the invoice.
7.4 Variations will be charged for on the basis of the Consultants quotation, and will be detailed in writing, and shown as variations on the Consultant’s invoice. The Client shall be required to respond to any variation submitted by the Consultant within five (5) working days. Failure to do so will entitle the Consultant to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
7.5 At the Consultant’s sole discretion a non-refundable deposit up to fifty percent (50%) of the Price may be required.
7.6 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by the Consultant, which may be:
(a) on completion of the Services;
(b) by way of instalments/progress payments in accordance with the Consultant’s payment schedule which shall be unless otherwise agreed to:
(i) a deposit of fifty percent (50%); and
(ii) a payment of thirty percent (30%) at time to be agreed; and
(iii) a final payment of twenty percent (20%) within seven (7) days of completion; or
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Consultant.
7.7 Publication and/or release of the work done by the Consultant shall only be released once the funds have been cleared or honoured.
7.8 Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Consultant.
7.9 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.
7.10 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Consultant an amount equal to any GST the Consultant must pay for any provision of Services by the Consultant under this or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
8. Provision of the Services
8.1 Any time specified by the Consultant for provision of the Services is an estimate only and the Consultant will not be liable for any loss or damage incurred by the Client as a result of provision being late. However, both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that the Consultant is unable to provide the Services as agreed solely due to any action or inaction of the Client, then the Consultant shall be entitled to:
(a) charge the Client additionally for re-providing the Services at a later time and date; or
(b) subject to clause 25.4, terminate the agreement.
8.2 Proof Reading:
(a) Whilst every care is taken by the Consultant to carry out the instructions of the Client, it is the Client’s responsibility to undertake proof reading and provide feedback (where necessary) via Dropbox which provides regular, possibly daily contact. The Consultant shall be under no liability whatever for any errors not corrected by the Client during the proof reading stages, and:
(i) should the Client’s alterations require additional proofs this shall be invoiced as an extra;
(ii) if, at any stage the Client is unhappy with the direction the Services are taking, the Client can cancel this agreement and pay the Consultant for work completed up to that date of cancellation.
(b) When style, type or layout is left to the Consultant’s judgement and the Client makes further alterations, this will be invoiced as an extra.
(c) The Consultant will make one (1) set of minor changes at no extra cost within fourteen (14) days of the review period. Minor changes include small text changes and small adjustments to placement of items on the artwork. It does not include changes to images, colour schemes, or any navigation features. Any minor changes need to be notified to the Consultant via email.
(d) Should the Client fail to notify the Consultant in writing of any amendments within fourteen (14) days from the commencement of the review period, the Consultant shall deem that the original draft as being acceptable.
8.3 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 (12) months after their receiving them and to accept and retain the proceeds, if any, to cover their own costs in holding and handling them.
8.4 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.
9. Design Services for Branding
9.1 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 product.
9.2 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 the original instructions or by the manuscript copy being, in the Consultant’s opinion, poorly prepared or by the Client’s requirements being different from those originally submitted or described, then the cost of such variations may be charged to the Client and shown as extras on the invoice.
9.3 All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.
9.4 Any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice.
9.5 Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at its request for the Services.
9.6 Where the performance of any contract with the Client requires the Consultant to obtain goods or services from a third party, the contract between the Consultant and the Client shall incorporate and shall be subject to the conditions of supply of such goods and services to the Consultant, and the Client shall be liable for the cost in full including the Consultant’s margin of such goods or services.
9.7 Whilst every care is taken by the Consultant to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading. The Consultant shall be under no liability whatever for any errors not corrected by the Client in the final proof reading.
9.8 Where the Client has left property and materials with the Consultant without specific instructions in relation to the use of these items, the Consultant shall hold them for a period of twelve (12) months after receipt, after which time the Consultant may dispose of the items. The Consultant shall be entitled to accept and retain any proceeds gained from such disposal to cover the Consultant’s cost in holding and handling such items.
9.9 Any change or correction to any film, bromides or artwork supplied by the Client which is deemed necessary by the Consultant to ensure correctly finished work shall be invoiced as an extra.
10. Design Concepts and Projects
10.1 The Consultant shall provide a maximum of two (2) designs will be offered as initial concepts for branding a business for the Client’s consideration. Additional designs can be offered by the Consultant which would be at an extra cost to the Client.
10.2 Any indication provided by the Consultant as to the duration of the project shall be considered as an estimate and shall commence from the date that cleared deposit funds are received by the Consultant.
10.3 The Consultant shall not be responsible for any project over-runs regardless of the cause.
10.4 The Consultant considers that the design project is completed upon receipt of the Client’s signed estimate or quotation form. Any associated services such as printing, display panel production, film work, Web Site design and development, publishing, etc. to be provided by the Consultant or contracted on the Client’s behalf shall constitute a separate project and can be treated as a separate charge.
11. Web Site Development
11.1 The Consultant’s Responsibilities:
(a) Upon acceptance of the Consultant’s quotation, and in accordance with this agreement, the Consultant will:
(i) use its best endeavours to develop the Web Site in accordance with the Client’s instructions and specifications; and
(ii) to the extent specified in the Client’s instructions and specifications, negotiate and procure any third-party agreements on behalf of the Client.
(b) The Client acknowledges that the development of the Web Site by the Consultant is based upon current technology platforms (e.g. internet browsers, mobile, android, etc.), and therefore the Consultant cannot guarantee that Web Site features and /or content will display correctly, and that the overall visual experience will be the same, for use by either superseded or presently undeveloped technology.
11.2 Client’s Responsibilities:
(a) The Client will, in addition to any other obligations expressed in this agreement, have the following responsibilities:
(i) provision of all content (including data, logos, designs and/or graphic and related materials) to be incorporated into the Web Site;
(ii) provision of any other information, ideas or suggestions which are to be expressly considered by the Consultant in developing the Web Site.
(b) The Client will ensure that the Consultant is given such information and assistance (including access to computer systems and other locations to complete a branding project) as the Consultant reasonably requires to enable the Consultant to construct and maintain the Web Site.
(c) Subject to clause 24.2, the Client shall supply access to any computer system, usernames and passwords required to remove data and/or sites for failure to comply with these terms and conditions.
(d) It shall be the Client’s responsibility to ensure that any specific requirements they may have for mobile web browsers is included in the brief, as, unless otherwise specified therein, the choice of web browsers and technology used in the development of the Web Site shall be at the sole discretion of the Consultant. In the event that additional Services are requested, or required (as per clause 11.1(b)), in order to meet any specific requirements for mobile web browsers, after the Consultant has commenced work on the Web Site, shall be treated as a variation to the Charges, and a strict estimation of further work required shall be submitted to the Client for approval before proceeding with the variation work.
(e) The Consultant will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Web Site which is attributable to:
(i) incorrect information provided by the Client, either pursuant to this clause or otherwise; or
(ii) failure by the Client to provide relevant information, either pursuant to this clause or otherwise; or
(iii) any third-party products and/or services used by the Consultant in creation of the Web Site.
11.3 Client’s Materials:
(a) Graphic files should be supplied in an editable, vector digital format and photographs in a high resolution digital format. If the Client chooses to purchase stock photographs, the Consultant can suggest stock libraries.
11.4 Maintenance:
(a) Subject to sub-clause (b), the Consultant will provide the Maintenance Services in accordance with the maintenance terms set out in the Consultant’s maintenance schedule.
(b) The Client will procure all necessary authorisations, licences and consents to enable the Consultant to have access to the Web Site in order to provide the Maintenance Services.
12. Hosting Services
12.1 “Live Date” means the date in which the Consultant provides the Hosting Services as per initial acceptance of the Consultant’s quotation.
12.2 Hosting services shall only be used by the Client for lawful purposes. Any use which violates any applicable national or international laws is strictly prohibited (e.g. posting or transmitting any unlawful, threatening, abusive, libellous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind – including, but not limited to, any transmission constituting or encouraging conduct that would constitute a criminal offense or give rise to civil liability).
12.3 Hosting services exclude domain registrations and Secure Sockets Layer (SSL) Certificates, and where the Client is changing from another hosting provider the install and set-up of the Web Site on the Consultant’s webservers, which shall be charged to the Client additionally.
12.4 The Consultant will, at its sole cost and expense:
(a) host the Web Site on the Consultant’s webservers;
(b) ensure that from the Live Date:
(i) sufficient capacity is maintained on the Consultant’s webserver to enable users access to the Web Site in a timely manner;
(ii) the Web Site is accessible to users in accordance with the agreed service levels (subject to reasonable downtime for server maintenance which has been notified to the Client prior to the commencement of the downtime or (where applicable) Maintenance in accordance with clause 12.8);
(c) provide the Client with reasonable access to the Web Site to perform maintenance services.
12.5 The Consultant will not:
(a) alter or amend, or permit any person to alter or amend the Web Site without the written consent of the Client;
(b) post or display on the Web Site 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 Web Site; or
(e) assign, transfer or authorise anyone else to exercise the rights in any licence granted pursuant to this agreement.
12.6 The Consultant will make best efforts to ensure that the Client receives continual and uninterrupted Services (including network or hosting servers) during the term of this agreement, however the Consultant does not in any way warrant or otherwise guarantee the availability of the Services, which shall be subject to regularly scheduled maintenance cycles, and many events/circumstances beyond the control of the Consultant. In no event, though, shall the Consultant be liable to the Client for damages (including loss of income) resulting from or in relation to any failure or delay (including server downtime, programming errors, lack of connection or slow connection) of the Consultant to provide Services under this agreement, or any loss of data, if such delays or failures are due to circumstances beyond our control. Such a failure or delay shall not constitute a default under this agreement.
12.7 The Consultant may, at their sole discretion, limit or deny access to the Services is, in the judgement of the Consultant, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network.
12.8 Web Site Maintenance Services:
(a) Subject to clause (b), the Consultant will provide the Web Site Maintenance Services in accordance with the maintenance terms set out in the Consultant’s maintenance schedule.
(b) The Client will procure all necessary authorisations, licences and consents to enable the Consultant to have access to the Web Site in order to provide the Maintenance Services.
12.9 Client’s Obligations:
(a) The Client will, at its sole cost and expense:
(i) subject to any contract with the Consultant for Web Site Development, develop and maintain the Web Site;
(ii) provide the content to the Consultant, in such form as reasonably prescribed by the Consultant from time to time, and hereby grants the Consultant a non-exclusive, worldwide, irrevocable licence to use such content for the purposes of hosting the Web Site;
(iii) do all things reasonably necessary to enable the Consultant to host the Web Site on the Consultant’s webserver;
(iv) change the type of hosting account used if that account is deemed by the Consultant to be unacceptable because of poor service, lack of bandwidth or in any other way insufficient to support the Web Site;
(v) is responsible for any fees payable and due to previous hosting organisations engaged by the Client;
(vi) ensure that content supplied to the Consultant do not contain Prohibited Content, a link to any web site that contains Prohibited Content, or any viruses, trojan horses, worms, time bombs, cancel bots or any other software program or routine designed for or capable of interfering with the operation of the Hosting Services.
(b) The Client will not:
(i) logon to an account that the Client is not authorised to access;
(ii) access data or take any action to obtain services not intended for the Client;
(iii) attempt to probe, scan or test the vulnerability of any system, subsystem or network;
(iv) tamper, hack, modify or otherwise corrupt or breach security or authenticity measures without proper authorisation;
(v) transmit any material outlined in clause 12.9(a)(vi);
(vi) do anything that prevents or hinders the Consultant from providing Hosting Services to any other person.
(c) The Client acknowledges that spamming (i.e. the sending of unsolicited email), email address cultivation, or any unauthorised collecting of email addresses without prior notification of the email address owner is strictly prohibited.
12.10 Network Traffic:
(a) Network traffic shall be measured by the Consultant and may include all forms of traffic to and from the Web Site. Domestic data transfer is provided free of charge, but the Consultant reserve the right to suspend Hosting Services (at any time and without notice to the Client) for what it deems to be excessive traffic usage.
12.11 Limitation of Liability for Hosting Services:
(a) In consideration of clause 18.6, in the event the Hosting Services provided to the Client are disrupted or malfunction for any reason, the Consultant’s liability shall be limited to damages which under no circumstances shall exceed the amount due and payable by the Client to the Consultant for the Hosting Services during the period of disruption or malfunction.
12.12 Search Engine Optimisation (SEO):
(a) Although the Consultant shall use their knowledge and experience to gain the best results possible, the Consultant gives no guarantee of the quality of visitor or the position / page rank or volume of visits to the Web Site, or warranty that the Web Site will be effective in promoting the Client’s business or result in any increase in sales of the products/services of the Client. Periodic reporting will be sent to the Client’s nominated email address, at the sole discretion of the Consultant.
13. Terms of Use
13.1 The Client acknowledges and agrees that:
(a) any attempt to circumvent domain parking restrictions by using selective HTTP redirects, or any other method, to send traffic from parked domains to websites other than the main website is strictly prohibited; if multiple domain names with separate content are required the appropriate account type must be used; and
(b) the Consultant does not allow the installation of the Client’s own chat rooms on shared hosting accounts unless given express written permission by the Consultant; these types of services tend to be large system hogs and the Consultant cannot allow it as a default account option; and
(c) the Client is not permitted to run certain programs in the background on shared hosting servers; this tends to use a lot of system resources, and can impair service to other customers on that server. If the Client is unsure of whether or not their software falls into this category the Client should contact the Consultant; and
(d) the Consultant does not allow IRC or IRC bots to be operated on their servers. Any account found to be in violation of this provision will be immediately suspended and/or deactivated and no refund will be issued; and
(e) the Client must not sublease, sub-host or give away control of any portion of their internet hosting space and/or resources (including, but not limited to, e-mail accounts, space, bandwith, ftp accounts or access to their self-managed consoles to third parties etc.) unless otherwise given permission in writing by the Consultant, as in the case of authorised reseller hosting accounts. The Consultant reserves the right to:
(i) request contact details of the Client’s current website developer/webmaster in relation to the Client’s hosting account; and
(ii) know who is accessing, and maintaining files on, the Consultant’s servers.
(f) file hosting and file storage services of any type is prohibited on all shared hosting accounts managed by the Consultant, unless the Consultant has given their express written permission. The Client must not use the shared hosting account as a dedicated download or file repository for use by external websites unless arranged otherwise with the Consultant. The Consultant’s shared hosting Services are strictly offered for websites hosted on the Consultant’s servers only; this does not mean that the Client cannot have downloads on their website, this provision means that the Client cannot operate a website that specialises in downloads, and the Client may not use their shared hosting account as a storage repository for MP3s, games, videos, audio, music or other files not directly related to the Client’s website.
14. Backups
14.1 The Client is responsible for maintaining their own e-mail backups on their own systems, unless otherwise agreed; TFCS does not provide any sort of compensation for lost or incomplete data in the event that backups do not function properly.
14.2 The Consultant will use their best endeavours to ensure complete and accurate backups of hosted data, but assume no responsibility for this duty. It is recommended by the Consultant that the Client always keeps a backup of their website whenever possible. The Consultant makes no guarantees about the availability of backups.
14.3 If the Client requires assistance in creating backups, please contact the Consultant or view the Consultant’s support pages. The Client’s hosting control panel provides a backup utility and the Client should periodically download a copy of their backed up files.
15. Unsolicited E-mail (SPAM)
15.1 SPAMing, or the sending of unsolicited e-mail, from the Consultant’s servers, or using a return e-mail address that is maintained on the Consultant’s servers, is strictly prohibited. Using SPAM to advertise a website hosted on the Consultant’s network is not only illegal under New Zealand law, but also constitutes as a violation of this provision. If the Client’s account is found to have been sending SPAM, whether the Client is aware, or not aware, of the SPAM activity, the Consultant reserves the right to limit or terminate the e-mail Services on the Client’s account at any time and without prior notification.
16. Server Abuse
16.1 Any attempts to undermine or cause harm to the Consultant’s servers, or a customer of the Consultant, is strictly prohibited. The Consultant reserves the right to seek compensation for loss of business and damage done to their servers by the Client, or dedicated server lessee.
16.2 It shall be the Client’s responsibility to ensure the security and confidentiality of their account and must not allow any unauthorised use of such by any third party. The Client will be liable for any infringement of these terms and conditions in respect of the Client’s account, irrespective of whether such infringement is by the Client or any authorised or unauthorised third party.
17. Domain Registration
17.1 Where the Consultant is to register a domain name on the Client’s behalf, the Consultant cannot guarantee the availability of the domain name, nor assume a successful registration or such a name.
17.2 The Consultant shall engage with domain hosts as specified in the quotation, acting solely as agent on behalf of the Client and the following shall apply:
(a) the Consultant shall be entitled to enter into contracts with such domain hosts in the name of the Client; and
(b) the Client shall be responsible for all payments to such domain hosts; and
(c) where the Consultant pays the domain host’s account on behalf of the Client, the Client shall reimburse the Consultant for the payment of the domain host’s account together with an account-handling fee within seven (7) days (unless specified otherwise) from the date of submission of the account by the Consultant to the Client; and
(d) if the Client does not reimburse the Consultant within seven (7) days from the date of submission of the account in accordance with sub-clause (c) above, the Consultant shall be entitled to:
(i) charge any other fees as per clause 24; and/or
(ii) enforce any other rights the Consultant may have under clause 24.
18. Risk and Limitation of Liability for Client Data
18.1 The Client shall provide the Consultant with data in the following formats:
(a) for text, files shall be in an electronic format as standard text (.txt) or Work (.doc) on a USB, CD-ROM or via email;
(b) for images, in an electronic format as prescribed by the Consultant on a USB, CD-ROM or via email with the images of a suitable quality applicable for the use intended and without any subsequent image processing being required. The Consultant shall not be responsible for the quality of images scanned from printed materials;
(c) additional expenses may be charged to the Client for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing or data entry services.
18.2 The Client acknowledges and agrees that the Consultant shall not be held responsible or liable for:
(a) anything related to the Web Site, Hosting Services or any other Services provided;
(b) any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of the Consultant;
(c) any loss, corruption, or deletion of files or data (including, but not limited to software programmes) resulting from illegal hacking or Services provided by the Consultant. Whilst the Consultant will endeavour to restore the Web Site, files or data (at the Client’s cost), it is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to the Consultant providing the Services. The Client accepts full responsibility for the Client’s software and data and the Consultant is not required to advise or remind the Client of appropriate backup procedures (unless included as part of the Services);
(d) any loss or damage to the Client’s software or hardware caused by any ‘updates’ provided for that software.
18.3 The Consultant, its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by the Consultant to the Client.
18.4 The Services are provided on an “as is, as available” basis. The Consultant specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.
18.5 Public Access:
(a) The Client understands that by placing information on the Web Site, such information may be accessible to all internet users. The Consultant does not (unless expressly requested by the Client) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity. The Client assumes full responsibility for their use of the Services, and it is the Client’s sole responsibility to evaluate the accuracy, completeness and usefulness or all opinions, advice, services, and other information, and the quality and merchantability of all Services provided by the Consultant, or on the internet generally.
18.6 Furthermore, the Consultant shall be under no liability whatsoever to the Client for any expenses, claims, costs (including but not limited to legal fees and commissions), damages suffered or incurred by the Consultant, or 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, caused by any failure by the Client to comply with their obligations under this agreement, or that arise from any claim relating to the Services by any person that the Client authorises to use the Services, or where due to server downtime or programming errors (alternatively the Consultant’s liability shall be limited to damages which under no circumstances shall exceed the Price).
18.7 Defects, Errors and Omissions in the Provision of the Services:
(a) The Client shall inspect/review the Services on provision and shall within thirty (30) days of such time notify the Consultant of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford the Consultant an opportunity to inspect/review the Services within a reasonable time following such notification if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
(b) For defective Services, 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 Services or rectifying the Services, provided that the Client has complied with the provisions of sub-clause (a).
(c) For Goods not manufactured by the Consultant, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Consultant shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
19. Title
19.1 The Consultant and the Client agree that the Client’s obligations to the Consultant for the supply of Services shall not cease (and ownership of any Goods shall not pass) until:
(a) the Client has paid the Consultant all amounts owing to the Consultant for the Services; 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.
19.2 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 Services, and this agreement, shall continue.
19.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 19.1:
(a) the Client is only a bailee of the Goods and must return the Goods to the Consultant on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Consultant and must pay to the Consultant the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Consultant and must pay or deliver the proceeds to the Consultant on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Consultant and must sell, dispose of or return the resulting product to the Consultant as it so directs.
(e) the Client irrevocably authorises the Consultant to enter any premises where the Consultant believes the Goods are kept and recover possession of the Goods.
(f) the Consultant may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Consultant.
(h) the Consultant may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Client.
20. Personal Property Securities Act 1999 (“PPSA”)
20.1 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 Services and/or all collateral (account) – being a monetary obligation of the Client for the Services – that have previously been provided, and that will be provided in the future, by the Consultant to the Client.
20.2 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 registration made thereby;
(c) not register a financing change statement or a change demand without the prior written consent of the Consultant.
20.3 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.
20.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
20.5 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.
20.6 The Client shall unconditionally ratify any actions taken by the Consultant under clauses 20.1 to 20.5.
21. Security and Charge
21.1 In consideration of the Consultant agreeing to provide the Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
21.2 The Client indemnifies the Consultant from and against all the Consultant’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Consultant’s rights under this clause.
21.3 The Client irrevocably appoints the Consultant and each director of the Consultant as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 21 including, but not limited to, signing any document on the Client’s behalf.
22. Intellectual Property and Confidentiality
22.1 Where the Consultant has designed, drawn or developed Services (including the Web Site) for the Client, the Consultant retains full intellectual property ownership of the Services, including the copyright in any designs and drawings and documents, and the Consultant hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use the Services solely in relation to the operation of the Client’s own business, conditional upon the Client fulfilling their obligations under this agreement (including, but not limited to, the full payment of the Price).
22.2 Subject to the Copyright Act 1994 and the conditions therein, where the Consultant or their sub-contractor has provided the Client with a licence for use on any design, copy, writing, drawing, image, illustration, idea or code created for the Client, the licence shall be for use by the Client on a one-time only basis and may not be modified, re-used, or re-distributed in any way or form without the express permission of the Consultant and any of its relevant sub-contractors.
22.3 All design work where there is a risk that another party makes a claim, should be registered by the Client with the appropriate authorities prior to publishing or first use or searches and legal advice sought as to its use. The Consultant shall not be held responsible for any or all damages resulting from such claims.
22.4 The Client hereby authorises the Consultant to utilise images of the Services created by the Consultant in advertising, marketing, or competition material by the Consultant including, but not limited to:
(a) the Client permitting the Consultant to place a small credit on printed material, exhibition displays, advertisement and/or link to the Consultant’s own web site on the Client’s Web Site, which shall usually be in the form of a small logo or line of text placed towards the bottom of the page;
(b) allowing the Consultant to place web sites and other designs, along with a link to the Client’s Web Site on the Consultant’s own web site for demonstration purposes and to use any designs in the Consultant’s own publicity.
22.5 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 Services 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.
22.6 Notwithstanding anything herein, the Intellectual Property Rights in the Consultant’s Services do not vest in the Client and there is no assignment of these Intellectual Property Rights to the Client. The Consultant hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use and reproduce the Services for the purposes of this agreement only, and solely for the operation of the Client’s business however, the Client shall not use nor make copies of such Intellectual Property in connection with any work or business other than the work or business specified in writing to the Consultant unless express approval is given in advance by the Consultant. Such license shall terminate on default of payment or any other terms of this agreement by the Client.
22.7 All Flash, PHP, Java Script, HTML and Dynamic HTML coding and other supplied code (if any) remains the intellectual property of the Consultant. Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright.
22.8 Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party. If however the Consultant consults and/or works with their sub-contractors and/or overseas business partners in the provision of the Services for the Client, then the parties shall sign a Non-Disclosure Agreement (NDA) if one is not already in existence between the Consultant and their sub-contractor and/or business partners.
23. Consumer Guarantees Act 1993
23.1 If the Client is acquiring Services for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Services by the Consultant to the Client.
24. Default and Consequences of Default
24.1 If the Client owes the Consultant any money the Client shall indemnify the Consultant from and against all costs and disbursements incurred by the Consultant in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Consultant’s collection agency fees, and bank dishonour fees).
24.2 Further to any other rights or remedies the Consultant may have under this contract, if a Client has made payment to the Consultant, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Consultant under this clause 24 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
24.3 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 if:
(a) any money payable to the Consultant becomes overdue, or in the Consultant’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by the Consultant;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
25. Cancellation and Termination
25.1 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, whether or not the payment is due to the Consultant) the Consultant may suspend or terminate the provision of Services to the Client, (this includes but is not restricted to, withholding domain codes, passwords and Goods, and/or blocking or restricting public and Client access to the Web Site, or removing the Web Site from the web completely) 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.
25.2 The Consultant may cancel these terms and conditions or cancel provision of the Services at any time before the Services are provided by giving written notice. The Consultant shall not be liable for any loss or damage whatever arising from such cancellation.
25.3 At the Consultant’s sole discretion the Client may cancel provision of the Services. In the event that the Client cancels provision of the Services the Client shall be liable for any costs incurred by the Consultant (including, but not limited to, loss of profit) up to the time of cancellation.
25.4 Where the Client cancels an order:
(a) the initial notification may be by telephone or email but must be confirmed in writing within fourteen (14) days;
(b) the Client shall be invoiced for all work completed over and above the non-refundable deposit as per clause 7.3(j);
(c) where failure clause 25.4(a) occurs, the Client shall be required to pay the full quoted cost of the Services.
25.5 Should the Client, for any reason, cause the Services to be delayed for more than three (3) months after the acceptance date, this agreement will be terminated by the Consultant (at their sole discretion) and all Services completed, but not billed or paid, will be payable in full within fourteen (14) days from the date of the submitted invoice.
25.6 Cancellation of pre-paid Services shall be subject to the Client giving no less than fourteen (14) days’ written notice and the following conditions shall apply from the time such notice is received:
(a) a cancellation fee equivalent to one (1) month’s charges will be retained by the Consultant where less than fifty percent (50%) of the term has been completed; or
(b) no refund shall apply where fifty percent (50%) or more of the contract term has been completed.
25.7 If the Client fails to comply with any of the provisions of this agreement and does not rectify such non-compliance within seven (7) days of the Consultant giving notice either in writing, via fax or email, then the Consultant may without prejudice to any other rights or remedies, and without being liable to the Client for any loss or damage that may result, give notice to the Client terminating their right to use the Web Site, Software and Services. Upon termination of the agreement, the Client shall lose all right to use the Web Site and products, and shall forthwith deliver the Goods to the Consultant and destroy all copies made. The Client shall certify in writing that the copies have been destroyed.
25.8 In the event the Services are terminated as per clauses 25.4 or 25.7, the Services can be re-instated under a new contract at the prevailing rates; however no credits or discounts will be granted and reinstatement costs shall apply.
26. Privacy Act 2000
26.1 The Client authorises the Consultant or the Consultant’s agent to:
(a) access, collect, retain and use any information about the Client;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by the Consultant from the Client 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.
26.2 Where the Client is an individual the authorities under clause 26.1 are authorities or consents for the purposes of the Privacy Act 2000.
26.3 The Client shall have the right to request the Consultant for a copy of the information about the Client retained by the Consultant, and the right to request the Consultant to correct any incorrect information about the Client held by the Consultant.
27. Dispute Resolution
27.1 The Consultant and the Client will negotiate in good faith and use their reasonable efforts to settle any dispute that may arise out of, or relate to, this agreement, or any breach thereof. If any such dispute cannot be settled amicably through ordinary negotiations, the dispute shall be referred to the representatives nominated by each party who will meet in good faith in order to attempt to resolve the dispute. Nothing shall restrict either party’s freedom to commence legal proceedings to preserve any legal right or remedy or protect and proprietary or trade secret right.
28. Service of Notices
28.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
28.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
29. Trusts
29.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Consultant may have notice of the Trust, the Client covenants with the Consultant as follows:
(a) the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
(c) the Client will not without consent in writing of the Consultant (the Consultant will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
30. General
30.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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.
30.2 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 Auckland Courts in New Zealand.
30.3 The Consultant may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
30.4 The Client cannot licence or assign without the written approval of the Consultant.
30.5 The Consultant may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Consultant’s sub-contractors without the authority of the Consultant.
30.6 The Client agrees that the Consultant may amend these terms and conditions at any time. If the Consultant makes a 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 via email. The Client will be taken to have accepted such changes if the Client makes a further request for the Consultant to provide Services to the Client.
30.7 Neither party shall be liable for any default due to fires, explosions, severe weather, industrial disputes, insurrection, requirements or regulations, or any civil or military authority, acts of war (whether declared or not), civil unrest, acts of God, earthquake, flood, riot, embargo, government act, strike, lock-out, storm, terrorism, or failure or outage of any telecommunications links or other connections forming part of the Internet which are beyond the reasonable control of either party.
30.8 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.
