XSV [ Excessive ] Dynamic design and development solutions, Tauranga, NZ.
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Terms & Conditions
1.
Definitions
1.1
In these Conditions, unless the context requires otherwise:
(a)
Client means the person who engages XSV to provide design or Website development services (which may or may not include supplying Print Media).
(b)
Conditions means these Terms and Conditions and any special Terms and Conditions agreed in writing by XSV.
(c)
Delivery Date means the date specified by XSV when an Order will be completed.
(d)
Designs means designs, logos, artwork, the look and feel of a Website and other non print media produced by XSV pursuant to an Order.
(e)
Print Media means the print media which XSV supplies as part of an Order.
(f)
Order means a request (either verbal or in writing) by the Client for XSV to supply Services / Print Media and includes specifications and project briefs whether prepared by XSV or the Client.
(g)
Price means the price for the Services and/or Print Media excluding GST which shall be charged separately.
(h)
Services means the services which XSV supplies to the Client pursuant to these Conditions.
(i)
XSV means XSV Productions Limited and any other associated, related or subsidiary companies which supply Services and/or Print Media to the Client.
(j)
Website means a website developed by XSV for the Client and includes the source code, functionality and Designs incorporated into the Website.
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 under any purchase order, confirmation of order or similar document.
2.2
All Orders shall be deemed to be an offer by the Client to engage XSV pursuant to these Conditions.
2.3
Acceptance of delivery of Print Media or the commencement of work by XSV pursuant to an Order shall be deemed conclusive evidence of the Client's acceptance of these Conditions.
2.4
Any variation to these conditions (including any special Terms and Conditions agreed between the parties) shall be inapplicable unless agreed in writing by XSV.
3.
Orders
3.1
The Client shall use its best endeavours to ensure that any Orders are sufficiently detailed and specific to allow XSV to complete such Orders to the satisfaction of the Client.
3.2
Each Order shall constitute a separate contract between XSV and the Client.
4.
Project Work
4.1
Where XSV 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 XSV.
4.2
XSV may produce proofs at various stages of the project and it shall be the Client Representative's responsibility to carefully check and sign such proofs before XSV is obliged to move to the next stage of the project. Any failure by the Client Representative to sign a proof shall not affect the Price payable and XSV shall not be liable for any errors in an Order where the Order corresponds with a proof signed by the Client.
4.3
Any variations to the Order shall not be valid unless set out in writing by the Client Representative.
4.4
Additional charges may be levied for any variations to the original Order on a time and materials basis in accordance with XSV's current price list.
5.
Intellectual Property
5.1
The source code and functionality of any Website developed by XSV will remain the intellectual property of XSV.
5.2
Copyright in any Designs or Website will pass to the Client on payment of the Price.
5.3
The Client shall ensure that any material provided to XSV for inclusion into a Website or Print Media does not infringe any 3rd party intellectual property right, is not offensive or in breach of any law or statute.
6.
Price as per price list or quotation
6.1
The Price shall be calculated in accordance with XSV's published price list current at the date of performance of the Services or delivery of the Print Media. The Price is exclusive of GST, which shall be due at the rate ruling on the date of the GST invoice. Delivery may be charged in addition to the Price.
6.2
Where a quotation is provided it will only be valid for the time period specified on the quotation. Written estimates are not to be regarded as quotations.
6.3
Any change to an Order of whatever nature after a quotation has been given invalidates that quotation.
7.
Payment
7.1
Unless otherwise advertised by, or agreed in writing with XSV, payment of the Price and GST shall be due on delivery, or if the project is longer than one month the Client will be progressively invoiced for the work undertaken in any calendar month..
7.2
XSV may require payment of a deposit or staged payments at significant milestones during the project. XSV is under no obligation to commence or continue with work until such deposits or staged payments are paid. All deposits are non refundable.
7.3
Payment may be made by cash, cheque or direct credit
7.4
Time for payment shall be of the essence.
7.5
Unless an invoice contains a manifest error, all invoices are deemed accepted by the Client 5 days after delivery to the Client.
7.6
The Client may not withhold payment of any invoice or other amount due to XSV by reason of any right of set off or counterclaim which the Client may have, or allege to have, or for any reason whatever.
7.7
In the event that the Client fails to pay all or part of an invoice by its due date, XSV reserves the right to charge interest on any unpaid sums at the rate of 2.5% per month, and any collection costs incurred.
8.
Insolvency
8.1
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 Print Media;
(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) shall be passed or presented;
(h)
a receiver, administrator, administrative receiver, or manager shall be appointed over the whole or any part of the Client's business or assets;
(i)
the Client shall suffer any analogous proceedings under foreign law;
(j)
then all sums outstanding in respect of all Orders shall become payable immediately.
8.2
In addition, XSV may, in its absolute discretion, and without prejudice to any other rights it may have:
(a)
Suspend all future supply of Print Media and/or Services to the Client (including without limitation, Website hosting); 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)
Exercise any of its rights pursuant to clause 9.
9.
Retention of Title and Personal Property Securities Act 1999 (PPSA)
9.1
Print Media shall be at the Client's risk from delivery.
9.2
Despite delivery having been made, property in the Print Media or copyright or other intellectual property right in the Designs or Website shall not pass from XSV until:
(a)
The Client has paid the Price plus GST in full; and
(b)
No other sums whatever shall be due from the Client to XSV.
9.3
Where a security interest is created pursuant to the PPSA the Client agrees that the security interest in the Print Media extends to the Proceeds (as defined in s16 PPSA) and acknowledges that the security interest will continue until XSV gives the Client a final release.
9.4
XSV may at its sole discretion and in such manner as it determines allocate payments made by the Client to outstanding amounts due in relation to any Print Media supplied by it.
9.5
Until property passes, the Client agrees that it:
(a)
will keep the Print Media insured to their full insurable value against loss or damage in XSV's name as unpaid vendor;
(b)
hold the Print Media as bailee for, and in a fiduciary relationship with, XSV;
(c)
will keep the Print Media separate and readily identifiable while the Print Media are in its possession or control and not move them outside New Zealand;
(d)
will not do or omit to do, or allow to be done, anything which could adversely affect the Print Media or the security interest.
9.6
If the Client defaults under these Terms or under any other payment obligation to XSV:
(a)
Each security interest created in favour of XSV will become immediately enforceable.
(b)
XSV may, at any time, by notice to the Client declare all or any part of the moneys owing to it to be due and payable immediately, upon demand or at a later date as it may specify.
(c)
XSV may:
(i)
Enter the Client's premises where the Print Media are stored to take possession of and either sell or retain the Print Media;
(ii)
Pay any expenses incurred in the exercise of any such powers out of the revenue from, or proceeds of realisation of, the Print Media.
(iii)
Appoint a receiver in respect of any Print Media (without the Client's consent) and any receiver is authorised to do anything referred to in these Conditions and otherwise to exercise all rights and powers conferred on a receiver by law.
9.7
XSV will not be liable for any damage caused to the Client or the Client's premises in exercising its rights under this clause.
9.8
The Client shall pay all of XSV's costs, losses and other liabilities (including legal expenses on a solicitor-Client basis) incurred by it in connection with the exercise, or attempted exercise, of any right arising under this clause or the PPSA.
9.9
Nothing expressed in the other provisions of this clause limits or otherwise adversely affects XSV's rights under the PPSA.
9.10
The Client waives its rights under sections 114(1)(a); 116; 120(2); 121; 125; 129; 131; 132; 133 and 134 of the PPSA and to receive a copy of the Verification Statement or a Financing Change Statement relating to the Security Interest.
9.11
The Client must give written notice to XSV immediately in writing upon any change of name or any change in management or control. In the event of any change in management or control the Client agrees to make further credit support available upon being requested to do so.
9.12
If requested by XSV, the Client must promptly do all things (including signing any document) and provide all information necessary to enable XSV to perfect and maintain the perfection of any and each security interest granted to XSV by the Client (including by registration of a Financing Statement).
10.
Time for performance
10.1
Whilst XSV 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.
10.2
Delivery of Print Media shall be made to the Client's address on the Delivery Date. Print Media may be delivered in advance of the Delivery Date upon the giving of reasonable notice to the Client. The Client shall make all arrangements to take delivery of the Print Media whenever it is tendered for delivery.
10.3
XSV shall not be liable to the Client for late delivery or short delivery of the Print Media.
10.4
XSV may sub contract any part of the supply of Print Media / Services.
11.
Acceptance and rejection
11.1
The Client shall be deemed with acceptance of the Print Media 48 hours after delivery to the Client. In respect of Designs or Website development the Client shall be deemed to have accepted such Designs / Website 7 days after delivery to the Client or any completed milestone.
11.2
After acceptance, the Client shall not be entitled to reject any Print Media, Designs or Website which are not in accordance with the Order.
11.3
Where the Client rejects any Print Media, Designs or Website, then the Client shall have no further rights whatever in respect of the supply to the Client of such Print Media / Designs or Website or a failure by XSV to supply Print Media/Designs or Website which conform with the Order.
11.4
When the Client accepts, or has been deemed to have accepted any Print Media, then XSV shall have no liability whatever to the Client in respect of those Print Media.
12.
Warranties and Liability
12.1
XSV warrants that:
(a)
Print Media supplied will, at the time of delivery, correspond to the proof signed by the Client and will be fit for the purpose specified in the Order;
(b)
Services supplied will be performed by competent persons and will be carried out with reasonable care and skill;
(c)
Websites supplied will function in accordance with the Order save that no warranty is given that the functions will perform in the same manner on the Client's equipment.
12.2
The conditions, warranties and guarantees set out in the Sale of Goods Act 1908, Consumer Guarantees Act 1993 or implied by common law are excluded from these Terms to the fullest extent permitted by law.
12.3
XSV shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by XSV of these Conditions or its own negligence.
12.4
In the event of any breach of these Conditions by XSV or its own negligence, the remedies of the Client shall be limited to damages and under no circumstances shall exceed the Price.
12.5
The Client shall indemnify XSV 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.
13.
Force majeure
13.1
Neither party shall be liable for any default due to any act of God or civil disturbance, malicious damage, strike, lock-out, industrial action, fire, flood, drought, extreme weather conditions, power shortage, compliance with any law or governmental order, rule, regulation, direction or any other circumstance beyond the reasonable control of either party;
13.2
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.
14.
Notices
14.1
Any notice under, or in connection with these Conditions, should be in writing and should be served by first class post or by hand on a party, sent by recorded delivery to the trading address of the party, or at or to such other address that may be subsequently notified by one party to the other.
15.
Privacy
15.1
XSV may request and collect personal information about the Client before agreeing to supply Print Media and/or Services in order to carry out such credit checks or references as it thinks appropriate. The failure to provide information requested by XSV may result in an Order being declined or a contract subsequently being terminated by XSV.
15.2
The Client has rights of access to personal information so collected, subject to the provisions of the Privacy Act 1993.
15.3
The Client agrees that its personal information may be used by XSV to advise the Client of XSV's services.
15.4
The Client authorises the disclosure of personal information held by any other party to XSV regarding any previous sale agreements entered into by the Client and/or any information in relation to the financial position of the Client.
15.5
The Client agrees that XSV may release to other parties information regarding this contract in order to enforce the terms and conditions of this contract.
16.
Law of Contract
16.1
This contract shall be governed by the laws of New Zealand and the parties irrevocably accept the jurisdiction of the New Zealand Courts. Any litigation will be heard in the Tauranga District Court.
