Free Website Terms & Conditions
1. Introduction
1.1 These terms and conditions cover Work carried out by DigiCreative for the Customer at the Customer’s request. These terms and conditions and the Sign Up Form constitute the entire agreement, (express and implied) between DigiCreative and the Customer relating to the Work. Execution of the Sign Up Form by the Customer will be deemed as acceptance of these terms
1.2 The Work is being carried out by DigiCreative for the Customer for the purposes of its business and accordingly the Consumer Guarantees Act 1993 does not apply.
1.3 Customer means the individual, company or other entity requesting DigiCreative to carry out Work for it.
1.4 Work means the services to be provided by DigiCreative to the Customer as detailed in the Sign Up Form to the Customer.
1.5 DigiCreative means DigiCreative Limited.
2. Payment
2.1 The customer agrees to pay their ongoing monthly website fee (as chosen on the Sign up Form) to DigiCreative’s bank account by way of Automatic Payment. The customer agrees to sign up for at least 12 months.
2.2 All sums owing under these terms and conditions will be paid by the Customer to DigiCreative on the twentieth (20th) day of the month following the date of the invoice. If payment is not made within that timeframe, DigiCreative reserves the right to cease any Work, and disable the Customer’s website and email until payment is made in full.
2.3 If payment is not made by the due date then DigiCreative may charge interest on the amount outstanding at the rate of 20% per annum calculated from the date payment was due to the date payment is made. The Customer shall pay any debt-collection fees incurred by DigiCreative in collecting the overdue amount.
2.4 The Customer agrees that DigiCreative may send invoices to the Customer via email.
3. Intellectual Property
3.1 Any intellectual property rights existing in any software or other tools provided by DigiCreative to the Customer including (without limitation) copyrights, patents and know how (“Intellectual Property”) shall remain the property of DigiCreative or where applicable its licensors.
3.2 Upon receipt by DigiCreative of full payment for the Work, DigiCreative grants to the Customer a non-exclusive and non-transferable licence to use the Intellectual Property (to the degree that such Intellectual Property is the property of DigiCreative) for the Customer’s business purpose.
4. Termination
4.1 Either Party may terminate this Agreement upon giving 30 days written notice to the other party.
4.2 DigiCreative may terminate this Agreement immediately and cease undertaking any further Work for the benefit of the Customer if:
a. the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
b. the Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
c. the Customer, being a natural person, dies;
d. the Customer ceases or threatens to cease conducting its business in the normal manner; or
e. the Customer fails to make a payment on the due date of such payment
4.3 Upon Termination by either party, DigiCreative may:
a. repossess any of its property in the possession, custody or control of the Customer;
b. retain any moneys paid by the Customer and require payment of all monies due and payable as at the date of termination;
c. charge a reasonable sum for any work performed but not previously charged for, and charge the rest of the 12 months ongoing website fees (see clause 4.2);
d. be regarded as discharged from any further obligations under this Agreement; and
e. pursue any additional or alternative remedies provided by law.
4.4 Any clause in this Agreement which naturally should apply after termination shall survive termination of this Agreement.
5. Website and Domain Names
5.1 DigiCreative does not warrant that Users will have continuous access to the Web Site. DigiCreative will not be liable in the event that the Web Site is unavailable to the Customer or Users due to computer downtime.
5.2 If so specified in the Sign Up Form, DigiCreative will:
a. Procure a domain name for the Customer;
b. Endeavour to obtain the Customer’s preferred domain name as nominated in the Sign Up Form or elsewhere by the Customer.
5.3 DigiCreative does not warrant that any preferred domain name of the Customer will be available and in any event DigiCreative accepts no liability arising out of the inability of DigiCreative to obtain the Customer’s preferred domain name or the exercise of discretion by DigiCreative in obtaining on behalf of the Customer an alternative and reasonably comparable domain name.
5.4 The Customer warrants that:
a. All information set out in the domain name application provided by the Customer is true and correct; and
b. The domain name sought by the Customer does not breach any legal rights of a third party, including but not limited to the rights subsisting in the Intellectual Property.
5.5 The Customer acknowledges that the registration of its domain name may be subject to licence conditions and that the licensor may revoke their licence for infringement of those conditions. The Customer undertakes to familiarise itself with any such conditions. The Customer will indemnify DigiCreative in respect of liability arising directly or indirectly from a failure by the Customer to comply with any such licence conditions.
5.6 Unless DigiCreative expressly provides otherwise, the Customer will be responsible for the content, modification and maintenance of the Web Site. DigiCreative accepts no responsibility if any deficiency or inaccuracy in the Web Site resulting from a lack of maintenance.
5.7 The Customer undertakes to ensure that the Web Site:
a. Does not infringe any third party intellectual property rights;
b. Will not at any stage during the term of the agreement contain material which is obscene, offensive, upsetting, defamatory, personally offensive or any way unsuitable for people under the age of eighteen (18) years; and
c. Does not comprise and cannot be used for any purpose or activity of an illegal, fraudulent or defamatory nature.
5.8 Unless expressly stated in the agreement, or unless DigiCreative’s written consent is obtained in advance, the Customer will use the Web Site for its own purposes and will not sublet space for any other individual or entity.
6. Confidentiality
6.1 Neither party shall, without the prior written approval of the other, disclose that other party’s Confidential Information.
6.2 A party will be in breach of clause 6.1 in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
6.3 Each party will take all reasonable steps to ensure that its employees and agents, and any subcontractors engaged for the purposes of the Agreement, do not make public or disclose the other party’s Confidential Information.
6.4 For the purposes of the Agreement, Confidential Information means the Confidential Information of either party which relates to the subject matter of the Agreement and includes:
a. Confidential Information relating to the design of the Web Site.
b. Information relating to the personnel, policies or business strategies DigiCreative.
7. Liability
7.1 DigiCreative will not be liable (whether due to negligence or any breach of these terms and conditions or otherwise) for:
a. Damages for any breach to the extent that the damages are attributable to the default, negligence, misconduct or breach of the Customer, its employees or agents; or
b. Any amounts for any indirect, consequential losses or punitive damages of the Customer, including in relation to third parties.
7.2 DigiCreative’s maximum liability (in contract and in tort, including negligence or otherwise) for losses incurred by the Customer arising from any error, act or omission of DigiCreative or breach of these terms and conditions will be limited to:
a. $2,000 (including GST, if any) per event or series of related events; and
b. not more than a total of $5,000 (including GST, if any) in any 12 month period.
The Customer must give DigiCreative written notice of the claim within six months of the event, otherwise DigiCreative will have no liability.
7.3 If any condition or warranty is implied into these terms and conditions under any trade practices, sale of goods or fair trading legislation applicable in New Zealand which cannot be excluded, then except to the extent that it is not permitted by law, the liability of DigiCreative for breach of the condition or warranty will be limited to $2,000 including GST.
7.4 To the maximum extent legally possible, all conditions and warranties which may be implied into these terms and conditions by law are excluded.
8. General
8.1 This Agreement shall be governed by the Laws of New Zealand. The courts of New Zealand shall have the non-exclusive jurisdiction to hear and determine any claims under or in connection with this Agreement.
8.2 DigiCreative will not be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure. If a delay or failure of DigiCreative to perform its obligations is caused or anticipated due to Force Majeure, the performance of DigiCreative’s obligations will be suspended. If a delay or failure by DigiCreative to perform its obligations due to Force Majeure exceeds sixty (60) days, DigiCreative may immediately terminate the Agreement on providing notice in writing to the Customer. For the purposes of this clause, Force Majeure shall mean any act of God, non-supply of materials by a supplier of DigiCreative, strike, lockout or other labour disturbance or any other event beyond the reasonable control of DigiCreative.
8.3 The Customer shall not assign this Agreement without written consent to such an assignment from DigiCreative.
