Real Strategy Ltd - Terms and Conditions of Trade – Sale of Services

 

1.         Definitions

1.1       In these Terms and Conditions, unless the context requires otherwise:

(a)         The  Company means Real Strategy Ltd, its successors, assigns and includes its subsidiaries and related companies.

(b)         Client means the person who engages The Company to provide the Services (or any person acting on behalf of with the authority of The Client .

(c)         Terms means these terms and conditions of trade and any special terms and conditions agreed in writing by The Company.

(d)         Order means a request (either verbal or in writing) by the Client to supply Services and includes specifications and project briefs whether prepared by The Company or the Client.

(e)         Price means the price for the Services, excluding GST which shall be charged separately.

(f)          Services  means the Services which The Company supplies to the Client pursuant to these Terms.

 

 

2.         Conditions Applicable

2.1       These Conditions shall apply to all Orders, to the exclusion of all other terms and conditions, including any terms and conditions which the Client may purport to apply or propose under any purchase order, confirmation of order or similar document.

2.2       In the event that any terms and conditions that the client may propose to their purchase conflict with the terms and conditions of this agreement then the terms and conditions of this agreement shall take precedence.

2.3       All Orders shall be deemed to be an offer by the Client to engage The Company pursuant to these Conditions. The placement of any order by the client in written or verbal is agreed as acceptance of these terms and conditions.

2.4       The commencement of work by The Company pursuant to an Order shall be conclusive evidence of the Client’s acceptance of these Conditions.

2.5       Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by The Company prior to start of the work.

 

 

3.         The Services

3.1       The Services which we agree to provide pursuant to an Order are:

(a)         Design and build website according to consultation with the client and using content supplied by the client

(b)         Consultancy relating to on-line marketing and related activities

(c)         On-Going support relating to on-line marketing and related activities

4.         Orders

4.1       The Client shall use its best endeavours to ensure that any Orders are sufficiently detailed and specific to allow The Company to complete such Orders to the satisfaction of the Client.

4.2       Each Order shall constitute a separate agreement between The Company and the Client.

5.         Project Work

5.1       Where The Company is supplying Services on an ongoing project basis for the Client, the Client shall appoint a representative (“Client Representative”) to act as the principal point of contact between the parties who shall be responsible for ensuring adequate and timely instructions or assistance is provided to The Company.

5.2       The Company may produce proofs at various stages of the project and it shall be the Client Representative’s responsibility to carefully check and approve such proofs before The Company is obliged to move to the next stage of the project. Any failure by the Client Representative to approve a proof shall not affect the Price payable and The Company shall not be liable for any errors in an Order where the Order corresponds with a proof approved by the Client.

5.3       Any variations to the Order shall not be valid unless set out in writing by the Client Representative and approved by The Company in writing and The Company has the right to invoice separately from the original Order for each and every variation.

5.4       Additional charges may be levied for any variations to the original Order on a time and materials basis at the normal rate per hour or as stated on the original order.

6.         Intellectual Property

6.1       The copyright in any designs produced by The Company will pass to the Client on payment of the Price.

7.         Confidentiality

 

8.         Price and payment

8.1       The Price shall be that stated in the Proposal that accompanies the original Order.

8.2       The Client may not withhold payment of any invoice or other amount by reason of any right of set off or counterclaim which the Client may have, or allege to have, or for any reason whatever.

8.3       Any and all prices stated in writing or verbally are exclusive of GST and include an already deducted Prompt Payment Discount that is valid until Due Date of the invoice at which time the discount expires and full price is payable.  The Prompt Payment is 10% unless otherwise stated in writing at time of offer or on the invoice.

8.4       Any and all discounts offered are conditional on payment by due date and may be conditional on another specified event or outside condition. Should the condition of the discount fail, or not activate or should the invoice remain unpaid beyond its due date the discount is deemed to have expired and is to be invoiced as a new invoice payable within 7 days of invoice regardless of whatever extended credit may or may not have been offered on the original invoice.

9.         Estimates

9.1       From time to time The Company may provide an estimate for the work to be carried out. Where an estimate is provided it shall be regarded as an estimate only based upon the number of hours The Company anticipates the job will take based on the instructions given by the Client. The Company reserves the right to charge the Client a sum in excess of the estimate where the job takes longer than estimated.

10.     Method of payment

10.1    Payment shall be due 7 days from invoice or on the Due Date stated on the invoice and time for payment shall be of the essence.

10.2    Monthly support payments shall be due by the 20^th day of the month in which the invoice is issued payable by Automatic Payment or bank transfer.

10.3    The Price may be paid by cash, cheque, direct payment to the Company’s bank account.

10.4    Unless an invoice contains a manifest error, all invoices are deemed accepted by the Client 5 days after delivery to the Client.

10.5    If any payment is reversed by the client bank after deposit into the Company’s account an administration fee of $50 is added to the account and is payable within 7 days of invoice and the account is deemed to have Failed Payment with the terms and conditions to apply as outlined in the section titled Default and Consequences of Default of this agreement.

11.     Payment on completion of milestones

11.1    The Company may require payment of a deposit or staged payments each month or at significant milestones during the project. The Company is under no obligation to commence or continue with work until such deposits or staged payments are paid. A request by The Company for a staged payment does not necessarily mean that work up to that stage will have been completed at the time of the request. All deposits are non refundable. 

11.2    Unless otherwise specified in writing in advance prior to start of work then  Payment of a 30% deposit will be required for each and every Order  before project commencement with milestone payments being 10% on Copywriting, 10% on Content Approval, 20% Design Acceptance then 30% on Launch of website or completion of project.

12.     Default and  Consequences Of Default

12.1    A client account in deemed to be in Default if the company has not received payment of invoice in full by the due date of that invoice by reason of the client having not made payment or if the client’s bank reverses a payment.

12.2    In the event that an account is in default for non-payment the company may now treat this as a Managed Account for which all activity directed toward securing payment is chargeable in addition to any other charges until the account is fully paid including;

12.3    one-time Managed Account Fee of $50.

12.4    on-going Management Fee of $20 per week until account paid in full

12.5    Administration Cost of $20 for each and every reminder letter sent to pursue any overdue account.

12.6    each and every phone call made to follow up an overdue account is chargeable at $20 per call plus $1.50 per minute.

12.7    disbursements for courier, documents serving and any other related costs.

12.8    Any and all discounts offered at time of invoice will be null and void and can be invoiced due for payment 7 days from invoice.

12.9    Interest on overdue invoices shall compound daily from the date when payment becomes due until the date of payment at a rate of 2.5% per calendar month.

12.10 If the Client defaults in payment of any invoice when due, the Company has the right to pass any unpaid client invoices to a debt collection agency whose costs are added to the amount payable the Client shall indemnify the company from and against all costs, including legal costs on a client and solicitor basis and debt collection, incurred by the Company in pursuing the debt.

12.11 Any and all overdue amounts may be passed to a debt collection agency for collection for which a one-time Debt Management Fee of $50 plus 10% of the balance owed may be added plus the costs of debt collection as levied by the debt collection agency are added to the amount owed by the client including any field visits advised by the debt collection agency, court costs plus disbursements and labour at the normal rate to prepare and to attend court proceedings or hearings.

12.12 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Company from and against all costs, including legal and debt collection, incurred by the Company in pursuing the debt. In addition, Without prejudice to any other remedies the Company may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions.  The Company will not be liable to the Client for any loss or damage the Client suffers because the Company has exercised its rights under this clause.

12.13 A further Without prejudice to the Company’s other remedies at law, the Company shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable in the event that:

(a)         any money payable to the Company becomes overdue, or in the Company’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.

 

13.     Time for performance

13.1    Whilst The Company will use its reasonable endeavours to ensure completion of any Order by the Delivery Date and achievement of agreed milestones by the dates agreed, having regard to the availability of personnel, supplies, facilities and commitments to other clients, any dates quoted for the commencement or completion of an Order are estimates only and time shall not be of the essence. 

13.2    The Company shall not be liable to the Client for the late completion of any Order.

13.3    The Company may sub contract any part of the supply of Services.

13.4    The Company will negotiate and reach agreement from the client on the time required for the Client to supply each and every item on content. The Due Date, once agreed by both parties is of essence to keep the project on time and on budget.

13.5    The Client may apply for a time extension on the Due Date for delivery of Content which The Company may at their entire discretion grant, decline or agree to a variation of which will be put in writing by The Company.

13.6    In the event that the client fails to deliver the required content to The Company by the Due Date then The Company may charge 1% of the full project value per week plus any additional time required to manage the delay at the normal hourly rate. Such invoice shall be payable 7 days from invoice.

 

14.     Termination on notice

14.1    The Company may terminate this agreement by giving the client 30 days written notice.

14.2    Where the Client breaches these Conditions and such breach is capable of remedy, The Company may terminate all agreements with the Client where the Client has been given reasonable notice of the breach and it has not been remedied within the time stipulated.

14.3    The client may terminates a support agreement with written notice during the minimum term by paying the termination fee, This shall be $50 plus 50% of the amount payable had the agreement run until the end of its minimum term within 7 days of the notice of termination.

14.4    The client may terminate an on-going support agreement with 60 days written notice after the minimum term.

14.5    At the end of the minimum term of a support agreement a new 12 month term will automatically commence unless cancelled in writing by the client within 30 days of the anniversary of the start of the agreement.

15.     Termination of supply

15.1    Where:

(a)         the Client fails to make payment of the Price; or

(b)         commits any other breach of these Conditions;

(c)         any distress or execution shall be levied upon any of the Client’s property;

(d)         the Client offers to make any arrangement with its creditors;

(e)         any bankruptcy petition is presented against the Client;

(f)          the Client is unable to pay its debts as they fall due;

(g)         if being a Limited Company any resolution or petition to wind up the Client (other than for the purposes of amalgamation or reconstruction without insolvency)  is passed or presented; 

(h)         a receiver, administrator, administrative receiver, or manager is appointed over the whole or any part of the Client’s business or assets; 

(i)          the Client shall suffer any similar proceedings under foreign law;

then all sums outstanding in respect of any Orders shall become payable immediately. 

15.2    In addition, The Company may, in its absolute discretion, and without prejudice to any other rights it may have:

(a)         Suspend all future supply of Services to the Client; and/or

(b)         Terminate all Orders without liability on its part; and/or

(c)         Charge interest at the rate of 2.5% per month on all sums outstanding;

(d)         Collect any sums owing, in which case the Client shall be liable for any collection costs incurred on a solicitor / own client basis.

 

16.     Warranties

16.1    As  the Service are acquired by the Client for a business purpose, the Client agrees that the Consumer Guarantees Act 1993 does not apply.

16.2    The following terms apply where the Consumer Guarantees Act 1993 does not apply to an Order or where the following terms are not inconsistent with the Consumer Guarantees Act 1993:

(a)         Defective Services or Services which do not comply with an Order may, at The Company’s discretion, be repaired or replaced, or the price refunded.

(b)         Any right which the Client may have to reject non-confirming or defective Services will only be effective if:

(i)   Client notifies The Company in writing within 48 hours following completion of the Order.

(ii) The Company will not fix any problem so long as the Client is in default in relation to any amount owing.

(c)         The Company accepts no liability for any claim by the Client, or any other person including, without limitation, any claim relating to or arising from:

(i)   Any conditions, warranties, descriptions, representations, conditions as to fitness or suitability for purpose, tolerance to any conditions, merchant ability or otherwise, whether expressed or implied by law, trade, custom or otherwise, or:

(ii) Any representation, warranties, conditions or agreements made by any company or representative which are not expressed confirmed by The Company in writing, or any services forming part of the supply of the Services which have been performed by any third party, and the Client agrees to indemnify The Company against any such claim.

(d)         Nothing in these terms is intended to have the affect of contracting out of the provisions of the Consumer Guarantees Act 1993, except to the extent permitted by that Act and these terms are to be modified to the extent necessary to give effect to that intention.

17.     Exclusion of Liability

17.1    The Company shall be under no liability whatever to the Client for any indirect or consequential loss and/or expense (including loss of profit be they actual, projected or perceived by the client) suffered by the Client arising out of a breach by The Company of these Conditions.

17.2    In the event of any breach of these Conditions by The Company, the remedies of the Client shall be limited to damages.  Under no circumstances shall the liability of The Company exceed the Price.

17.3    The Client shall indemnify The Company for all loss or damage arising by reason of the negligence of the Client, its employees or contractors, or any breach by the Client of these Conditions.

17.4    Where the Company provides Consultancy relating to on-line marketing and related activities apart from core services such as design, construction and maintenance of the client website the company offers assistance for the client to manage items such as domain name registration and maintenance the service of the company is of an advisory nature only and the company bears no responsibility for maintenance of non-core services.

18.     Force majeure

18.1    Neither party shall be liable for any default due to any act of God or civil disturbance, war, terrorism,  storm malicious damage, strike, lock-out, industrial action, earthquake, fire, flood, drought, extreme weather conditions compliant with any law or governmental order, rule, regulation, direction or any other circumstance beyond the reasonable control of either party;

18.2    Each party shall give notice forthwith to the other upon becoming aware of a force majeure event, the notice to specify details of the circumstances giving rise to the force majeure event.

19.     Notices

19.1    Any notice under, or in connection with these Conditions, shall be in writing and shall be served by first class post or by hand on a party, sent by recorded delivery or email at or to the trading address of the party last known.

19.2    In the absence of evidence of earlier receipt, any notice shall be deemed to be duly served;

(a)         If delivered personally when left at the address;

(b)         If so by recorded delivery three days after posting; and

(c)         If sent by email, when received.

20.     Privacy

20.1    For the purposes of the Privacy Act 1993, the client authorises the company to:

(a)         collect and use any information about the Client, for the purpose of assessing the Client’s creditworthiness, and for the additional purpose of marketing to the Client; and

(b)         disclose any information about the Client to any credit provider or agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.

20.2    Where the Client is an individual, the authorities under clause 20.1 are authorities or consents for the purposes of the Privacy Act 1993.

20.3    The Client shall have the right to request the Company for a copy of the information about the Client retained by the Company, and the right to request the Company to correct any incorrect information about the Client held by the Company.

20.4     

20.5    The Company may request and collect personal information about the Client to evaluate whether to agree to accept any Order. The failure to provide the information requested by The Company may result in the Order being declined or an Order subsequently being terminated by The Company.

20.6    The Client authorises the disclosure of personal information held by any other party to The Company regarding any previous sale agreements entered into by the Client and/or any information in relation to the financial position of the Client.

20.7    The Client agrees that The Company may release to other parties information regarding any Order in order to enforce these Conditions.

21.     Dispute resolution

21.1    Any dispute is to be raised and put in writing with 7 days of it being potentials known with notice given as agrees in the section titled Notices.

21.2    Any defect or dispute not reported prior to due date of the invoice to which it relates is agreed not to used to delay nor to affect payment of that invoice.

21.3    Upon receipt of a written notice of dispute from the client The Company will acknowledge in writing with 3 business days receipt of the notice of dispute. Within n 7 days of notice of dispute the Company assign a fair value to the aspect that is in dispute ands raise a credit note and invoice of matching value to reflect this value.

21.4    The Company will raise a credit note for value that is in dispute to be applied to the original invoice which allows the undisputed portion to be paid by the due date. On the same date The Company will produce a new invoice for the exact same value of the aforementioned credit note with payment terms being payable within 7 days of the dispute resolution being recorded in writing.

21.5    The client agrees to pay the undisputed portion of the amount payable by the Due Date upon receipt of the credit note and matching value invoice for the disputed portion.

21.6    The client and a representative of The Company agree to meet within 7 days of a dispute being raised at a venue local to The Company to address the dispute or by teleconference if mutually agreed.

21.7    Should any dispute that have followed above process remain unresolved then both partied agree to take the matter to Disputes Tribunal and be bound by that ruling provided that the disputed portion is within the jurisdiction of the Disputes Tribunal.

21.8    And dispute not raised prior to due date that the Agent later agrees to compensate for shall not affect timely settlement of the original invoice and it value shall only apply form the date for the credit note issued by the agent. And interest or other costs applicable to the original invoice remain payable.

21.9    If any dispute or difference shall arise between the parties as to the meaning of these Conditions, or any matter or thing arising out of or connected with these Conditions, then the parties shall attempt to settle that difference by negotiation with written record of resolution using the process and timing as agreed for a dispute.

21.10 Where negotiation is unsuccessful then the dispute shall be referred to mediation with the mediator being agreed by the parties or in the absence of agreement being appointed by LEADR. The costs of mediation shall be borne equally by the parties.

22.     Law of Contract

22.1    This contract shall be governed by the laws of New Zealand and the parties irrevocably accept the jurisdiction of the New Zealand Courts.

23.     General

23.1    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.

23.2    Unless specifically notified to the contrary in advance, the Client authorises the Company to accept any relevant End User License Agreement (EULA) on their behalf as the Client’s authorised company.  When software is installed or changed by the Company to meet the needs of the Client, it is agreed that the Company will accept the relevant EULA on behalf of the Client, acting as the Client’s company, and that the Client will be the party entered into the Agreement and not the Company.

23.3    The Company shall be under no liability whatsoever 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 Company of these terms and conditions.

23.4    In the event of any breach of this contract by the Company, the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods and Services.

23.5    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 Company.

23.6    The Company may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

23.7    The Company reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Client of such change.

23.8    The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.

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