1.               Preamble

1.1            All Services of SPINCO Technology Limited, whether gratuitous or not, are supplied subject to these Conditions and:

(a)   The provisions of Part I shall apply to the provision of all and any Services.

(b)   The provisions of Part II shall only apply to the provision of Website Hosting Services.

(c)   The provisions of Part III shall only apply to the provision of Web Development Services.

 

PART I – GENERAL CLAUSES

2.               Definitions

2.1            Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

2.2            SPINCOTech” means SPINCO Technology Limited, its successors and assigns or any person acting on behalf of and with the authority of SPINCO Technology Limited.

2.3            Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting SPINCOTech 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 partnership, it shall bind each partner jointly and severally; and

(c)   if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and

(d)   includes the Client’s executors, administrators, successors and permitted assigns.

2.4            “Contractor/s” shall mean any person or persons engaged by SPINCOTech to provide specialised work on behalf of the Client.

2.5            Goods” means all Goods (including but not limited to, data, graphics, pictures, trade marks, parts, software, hardware) or Services (which includes any installation and/or repair of Goods or components, advice or recommendations, support services, online backups’, assessment and planning, reporting, technical service and support, analysis, or service sourcing) supplied by SPINCOTech 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).

2.6            Software” shall mean any of SPINCOTech’s branded Software and includes any Software required for operating each individual terminal or application, or any coding that any web-based service is comprised of (and where the context so permits shall include any supply of Products and/or Services as hereinafter defined).

2.7            Website” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.

2.8            SNT” means any Social Network Tool being a social media platform and/or application which is accessible on the internet through the World Wide Web and which provides multimedia content via a graphical user interface (including, but not limited to VOIP, Office 365, Facebook, Twitter, LinkedIn, Pinterest, etc.).

2.9            Support” means to provide direct support to the Client for technical issues. Support includes the following services:

(a)   remote access resolution;

(b)   any time spent to resolve any issues with the Client’s computer system created by any operator error on the part of the Client or any action of any third parties whether authorised or unauthorised by the Client;

(c)   resolving any issues which are solely caused by the actions of third parties and originate outside of the Client’s computer system e.g. problems that relate to the supply of services by the Client’s internet service provider.

2.10         Prohibited Content” means any content on a Website that:

(a)   is, or could reasonably be considered to be, in breach of the broadcasting standards 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.

2.11         Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.

2.12         Cookies” means small files which are stored on a user’s computer.  They are designed to hold a modest amount of data (including personal information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using SPINCOTech’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.

2.13         Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between SPINCOTech and the Client in accordance with clause 8 below.

 

3.               Acceptance

3.1            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 delivery of the Goods.

3.2            In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.

3.3            Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

3.4            The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed a credit application with SPINCOTech and it has been approved with a credit limit established for the account.

3.5            In the event that the supply of Goods requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, SPINCOTech reserves the right to refuse delivery.

3.6            SPINCOTech reserves the right to levy a minimum charge of one (1) hour inspection fee based on SPINCOTech’s hourly labour rate. If upon inspection any Goods provided by the Client are deemed to be uneconomical to repair then SPINCOTech will either return the Goods to the Client and/or dispose of upon written instructions. The Client accepts and acknowledges that at all time the Client will remain liable for the initial inspection fee.

3.7            Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

4.               Errors and Omissions

4.1            The Client acknowledges and accepts that SPINCOTech 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 SPINCOTech 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 SPINCOTech in respect of the Services.

4.2            In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of SPINCOTech; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

 

5.               Change in Control

5.1            The Client shall give SPINCOTech 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 and contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by SPINCOTech as a result of the Client’s failure to comply with this clause.

 

6.               Authorised Representatives

6.1            Unless otherwise limited as per clause 6.2 the Client agrees that should the Client introduce any third party to SPINCOTech as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Goods or Services on the Client’s behalf and/or to request any variation to the works on the Client’s behalf (such authority to continue until all requested works have been completed or the Client otherwise notifies SPINCOTech in writing that said person is no longer the Client’s duly authorised representative).

6.2            In the event that the Client’s duly authorised representative as per clause 6.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise SPINCOTech in writing of the parameters of the limited authority granted to their representative.

6.3            The Client specifically acknowledges and accepts that they will be solely liable to SPINCOTech for all additional costs incurred by SPINCOTech (including SPINCOTech’s profit margin) in providing any works, Goods, Services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 6.2 (if any)).

 

7.               Subscriptions

7.1            The commencement date shall be the date of the first delivery of the Services under a subscription agreement, or from the date of signing, whichever, is the earlier. The subscription agreement shall be for the period (‘Initial Term”) as agreed between both parties and shall revert to an annual roll over month to month basis automatically, thereafter, unless agreed otherwise until terminated by either party by giving at least thirty (30) days’ required notice as defined in the subscription agreement prior to the expiration date of the Initial Term or any additional term.

7.2            The Client acknowledges and accepts that all fixed contracts are subject to periodic price reviews to allow for increases to SPINCOTech in the cost of labour and materials, which are beyond the control of SPINCOTech.

 

8.               Price and Payment

8.1            At SPINCOTech’s sole discretion the Price shall be either:

(a)   as indicated on any invoice provided by SPINCOTech to the Client; or

(b)   the Price as at the date of Delivery of the Goods according to SPINCOTech’s current price list; or

(c)   SPINCOTech’s quoted price (subject to clause 8.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

8.2            SPINCOTech reserves the right to change the Price:

(a)   where there is any variation to the accepted plan of scheduled Services (including, but not limited to, instructions, specifications or any additional work required due to hidden or unidentifiable difficulties that could not reasonably have been foreseen by SPINCOTech during the course of the Services), which will be charged for on the basis of SPINCOTech’s standard hourly rates (and double such rate for any Services provided outside SPINCOTech’s normal business hours); or

(b)    in the event of increases to SPINCOTech in the cost of labour or materials (including the increase in overseas transactions as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) which are beyond SPINCOTech’s control.

8.3            Variations will be charged for on the basis of SPINCOTech’s quotation, and will be detailed in writing, and shown as variations on SPINCOTech’s invoice. The Client shall be required to respond to any variation submitted by SPINCOTech within ten (10) working days. Failure to do so will entitle SPINCOTech 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.

8.4            At SPINCOTech’s sole discretion a deposit may be required.

8.5            Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by SPINCOTech, which may be:

(a)   on delivery of the Goods; or

(b)   completion of the Services;

(c)   by way of instalments/progress payments in accordance with SPINCOTech’s payment schedule;

(d)   for certain approved Clients, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;

(e)   the date specified on any invoice or other form as being the date for payment; or

(f)     failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by SPINCOTech.

8.6            Payment may be made by cash, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and SPINCOTech.

8.7            SPINCOTech may in its discretion allocate any payment received from the Client towards any invoice that SPINCOTech determines and may do so at the time of receipt or at any time afterwards. On any default by the Client SPINCOTech may re-allocate any payments previously received and allocated. In the absence of any payment allocation by SPINCOTech, payment will be deemed to be allocated in such manner as preserves the maximum value of SPINCOTech’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.

8.8            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 SPINCOTech nor to withhold payment of any invoice because part of that invoice is in dispute.

8.9            Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to SPINCOTech an amount equal to any GST SPINCOTech must pay for any supply by SPINCOTech under this or any other contract for the sale of the Goods. 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.

 

9.               Delivery of Goods

9.1            Delivery (“Delivery”) of the Goods is taken to occur at the time that:

(a)   the Client or the Client’s nominated carrier takes possession of the Goods at SPINCOTech’s address; or

(b)   SPINCOTech (or SPINCOTech’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.

9.2            At SPINCOTech’s sole discretion the cost of Delivery is included in the Price.

9.3            SPINCOTech may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

9.4            Any time specified by SPINCOTech for Delivery of the Goods is an estimate only and SPINCOTech will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties.

 

10.            Risk

10.1         Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.

10.2         If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, SPINCOTech is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by SPINCOTech is sufficient evidence of SPINCOTech’s rights to receive the insurance proceeds without the need for any person dealing with SPINCOTech to make further enquiries.

10.3         If the Client requests SPINCOTech to leave Goods outside SPINCOTech’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.

 

11.            Limitation of Liability

11.1         It shall be the Client’s sole responsibility to remove any removable media (including, but not limited to, diskettes, CDs, DVDs or PC Cards) from the Goods prior to returning or submitting the Goods for repair or replacement.

11.2         SPINCOTech shall not be held liable for any loss or corruption of data or files (including, but not limited to, software programmes) resulting from servicing or repairs being undertaken on the Goods. It is the sole responsibility of the Client to back-up any data which they believe to be important, valuable or irreplaceable prior to bringing in any Goods for servicing or repairs. 

11.3         SPINCOTech will make best efforts to ensure that the client receives continual and uninterrupted services during the term of this Contract. In no event though, shall SPINCOTech be liable to the Client for damages resulting from or in relation to any failure or delay of SPINCOTech to provide Services under this Contract. Such a failure or delay shall not constitute a default under this Contract.

11.4         SPINCOTech, 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 SPINCOTech to the Client.

11.5         The Client acknowledges that any advice or recommendations by SPINCOTech are provided on the basis of SPINCOTech’s industry knowledge and experience only and shall not be deemed as specialist advice.

 

12.            Goods Supplied By the Client

12.1         Any artwork, bromides, film, video or other material supplied to SPINCOTech by the Client shall be at the Client’s risk and if lost, destroyed or damaged the Client will not be entitled to make any claim against SPINCOTech.

12.2         In the case of property and Goods left with SPINCOTech without specific instructions, SPINCOTech shall be free to dispose of them at the end of twelve months after his receiving them and to accept and retain any proceeds gained from such disposal to cover SPINCOTech’s costs in holding and handling such items.

 

13.            Title

13.1         SPINCOTech and the Client agree that ownership of the Goods shall not pass until:

(a)   the Client has paid SPINCOTech all amounts owing to SPINCOTech; and

(b)   the Client has met all of its other obligations to SPINCOTech.

13.2         Receipt by SPINCOTech 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.

13.3         It is further agreed that until ownership of the Goods passes to the Client in accordance with clause 13.1:

(a)   the Client is only a bailee of the Goods and must return the Goods to SPINCOTech on request;

(b)   the Client holds the benefit of the Client’s insurance of the Goods on trust for SPINCOTech and must pay to SPINCOTech 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 SPINCOTech and must pay or deliver the proceeds to SPINCOTech 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 SPINCOTech and must sell, dispose of or return the resulting product to SPINCOTech as it so directs;

(e)   the Client irrevocably authorises SPINCOTech to enter any premises where SPINCOTech believes the Goods are kept and recover possession of the Goods;

(f)     SPINCOTech 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 SPINCOTech; and

(h)   SPINCOTech may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

 

14.            Personal Property Securities Act 1999 (“PPSA”)

14.1         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 Goods and/or collateral (account) – being a monetary obligation of the Client to SPINCOTech for Services – that have previously been supplied and that will be supplied in the future by SPINCOTech to the Client.

14.2         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 SPINCOTech may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b)   indemnify, and upon demand reimburse, SPINCOTech for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;

(c)   not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of SPINCOTech; and

(d)   immediately advise SPINCOTech of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

14.3         SPINCOTech and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

14.4         The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.

14.5         Unless otherwise agreed to in writing by SPINCOTech, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

14.6         The Client shall unconditionally ratify any actions taken by SPINCOTech under clauses 14.1 to 14.5.

14.7         Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

15.            Security and Charge

15.1         In consideration of SPINCOTech agreeing to supply the Goods, 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).

15.2         The Client indemnifies SPINCOTech from and against all SPINCOTech’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising SPINCOTech’s rights under this clause.

15.3         The Client irrevocably appoints SPINCOTech and each director of SPINCOTech as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.

 

16.            Defects

16.1         The Client shall inspect the Goods on Delivery and shall within seven (7) days of Delivery (time being of the essence) notify SPINCOTech of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford SPINCOTech an opportunity to inspect the Goods within a reasonable time following Delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which SPINCOTech has agreed in writing that the Client is entitled to reject, SPINCOTech’s liability is limited to either (at SPINCOTech’s discretion) replacing the Goods or repairing the Goods.

16.2         Goods will not be accepted for return other than in accordance with 16.1 above, and provided that:

(a)   SPINCOTech has agreed in writing to accept the return of the Goods; and

(b)   the Goods are returned at the Client’s cost within seven (7) days of the Delivery date; and

(c)   SPINCOTech will not be liable for Goods which have not been stored or used in a proper manner; and

(d)   the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

16.3         SPINCOTech may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty percent (20%) of the value of the returned Goods plus any freight.

16.4         Subject to clause 16.1, non-stocklist items or Goods made to the Client’s specifications are not acceptable for credit or return.

 

17.            Warranty

17.1         The warranty shall be the current warranty provided by the manufacturer of the Goods. SPINCOTech 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.

17.2         The conditions applicable to the warranty given on Goods supplied by SPINCOTech are contained on the “Warranty Documentation” that will be supplied with the Goods.

 

18.            Consumer Guarantees Act 1993

18.1         If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Goods by SPINCOTech to the Client.

 

19.            Intellectual Property

19.1         Where SPINCOTech has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of SPINCOTech. Under no circumstances may such designs, drawings and documents be used without the express written approval of SPINCOTech.

19.2         All Flash, PHP, Java Script, HTML and Dynamic HTML coding and other supplied code (if any) remains the intellectual property of SPINCOTech.  Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright.

19.3         Notwithstanding anything herein, the intellectual property rights in SPINCOTech’s Goods and SPINCOTech’s routines do not vest in the Client and there is no assignment of the intellectual property rights in SPINCOTech’s Goods or SPINCOTech’s routines to the Client. SPINCOTech may grant the Client a license to use the intellectual property referred to in clause 19.1 in relation solely to 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 SPINCOTech unless express approval is given in advance by SPINCOTech. Such license shall terminate on default of payment or any other terms of this Contract by the Client.

19.4         The Client shall indemnify SPINCOTech 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 Goods or any other deficiency therein. Where the Client has supplied drawings, sketches, files, official insignia or logo’s to SPINCOTech, the Client warrants that the drawings, sketches, files, official insignia or logo’s do not breach any patent, trademark, design or copyright, and the Client agrees to indemnify SPINCOTech against any action taken by a third party against SPINCOTech.

19.5         The Client agrees that SPINCOTech may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which SPINCOTech has created for the Client.

 

20.            Confidentiality

20.1         The Client acknowledges and agrees that they will not divulge any information supplied by SPINCOTech that SPINCOTech has not made publicly available, to any third party.

20.2         The Client agrees to protect all authorization details, including but not limited to usernames and passwords and agrees that these details shall not be written or stored in any manor which could result in their unauthorised disclosure.

20.3         In the event that SPINCOTech requests the change of any password or identifier relating to SPINCOTech’s system, the Client agrees to select a password or identifier meeting SPINCOTech’s specifications and will not to use commonly known details such as birthdays and or names.

 

21.            Default and Consequences of Default

21.1         Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at SPINCOTech’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

21.2         If the Client owes SPINCOTech any money the Client shall indemnify SPINCOTech from and against all costs and disbursements incurred by SPINCOTech in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, SPINCOTech’s collection agency costs, and bank dishonour fees).

21.3         Further to any other rights or remedies SPINCOTech may have under this Contract, if a Client has made payment to SPINCOTech, 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 SPINCOTech under this clause 19.1 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.

21.4         Without prejudice to SPINCOTech’s other remedies at law SPINCOTech shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to SPINCOTech shall, whether or not due for payment, become immediately payable if:

(a)   any money payable to SPINCOTech becomes overdue, or in SPINCOTech’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 SPINCOTech;

(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.

 

22.            Cancellation

22.1         Without prejudice to any other remedies SPINCOTech may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or terminate the supply of Services to the Client. SPINCOTech will not be liable to the Client for any loss or damage the Client suffers because SPINCOTech has exercised its rights under this clause.

22.2         SPINCOTech may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice SPINCOTech shall repay to the Client any money paid by the Client for the Services. SPINCOTech shall not be liable for any loss or damage whatsoever arising from such cancellation.

22.3         In the event that the Client:

(a)    cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by SPINCOTech as a direct result of the cancellation (including, but not limited to, any loss of profits);

(b)   cancels the provision of Services prior to the expiry of any specified contract term, then the Client shall be liable to pay for the provision of the Services until the expiration of the contact term;

(c)   fails to give notice of intention to cancel at least thirty (30) days prior to the expiration date of the subscription agreement, the subscription agreement shall automatically renew on a monthly basis, unless cancelled by way of the Client providing SPINCOTech with thirty (30) days’ notice.

 

23.            Privacy Policy

23.1         All emails, documents, images or other recorded information held or used by SPINCOTech is Personal Information as defined and referred to in clause 23.3 and therefore considered confidential. SPINCOTech acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 8 of the Act and any statutory requirements where relevant in a European Economic Area “EEA” under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). SPINCOTech acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by SPINCOTech that may result in serious harm to the Client, SPINCOTech will notify the Client in accordance with the Act and/or the GDPR.  Any release of such personal information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.

23.2         Notwithstanding clause 23.1, privacy limitations will extend to SPINCOTech in respect of Cookies where the Client utilises SPINCOTech’s website to make enquiries. SPINCOTech agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:

(a)   IP address, browser, email client type and other similar details;

(b)   tracking website usage and traffic; and

(c)   reports are available to SPINCOTech when SPINCOTech sends an email to the Client, so SPINCOTech may collect and review that information (“collectively Personal Information”)

If the Client consents to SPINCOTech’s use of Cookies on SPINCOTech’s website and later wishes to withdraw that consent, the Client may manage and control SPINCOTech’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

23.3         The Client authorises SPINCOTech or SPINCOTech’s agent to:

(a)   access, collect, retain and use any information about the Client;

(i)     (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or 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 SPINCOTech from the Client directly or obtained by SPINCOTech 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.

23.4         Where the Client is an individual the authorities under clause 23.3 are authorities or consents for the purposes of the Privacy Act 2020.

23.5         The Client shall have the right to request (by e-mail) from SPINCOTech, a copy of the Personal Information about the Client retained by SPINCOTech and the right to request that SPINCOTech correct any incorrect Personal Information.

23.6         SPINCOTech will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

23.7         The Client can make a privacy complaint by contacting SPINCOTech via e-mail. SPINCOTech will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at http://www.privacy.org.nz/comply/comptop.html.

 

24.            Service of Notices

24.1         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.

24.2         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.

 

 

 

25.            Trusts

25.1         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 SPINCOTech may have notice of the Trust, the Client covenants with SPINCOTech 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 SPINCOTech (SPINCOTech 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.

 

26.            General

26.1         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.

26.2         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 courts of Waikato, New Zealand.

26.3         Except to the extent permitted by law “CGA”, SPINCOTech shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by SPINCOTech of these terms and conditions (alternatively SPINCOTech’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

26.4         SPINCOTech may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.

26.5         The Client cannot licence or assign without the written approval of SPINCOTech.

26.6         SPINCOTech 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 SPINCOTech’s sub-contractors without the authority of SPINCOTech.

26.7         The Client agrees that SPINCOTech may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for SPINCOTech to provide Goods to the Client.

26.8         Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

26.9         Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

 

PART II:  WEBSITE HOSTING

        

27.            What SPINCOTech Will Do

27.1         SPINCOTech will, subject to SPINCOTech initial quotation:

(a)   install the Client Goods on SPINCOTech‘s server;

(b)   host the Client Website on SPINCOTech’s server and/or SPINCOTech’s contracted third party server;

(c)   ensure that from the live date:

(i)     sufficient capacity is maintained on SPINCOTechs’s server to enable users access to the Client’s Website in a timely manner;

(ii)    the Client’s Website is accessible to users in accordance with the service levels (subject to reasonable downtime for server maintenance which has been notified to the Client prior to the commencement of the downtime or Website maintenance in accordance with Clause 27.1(d));

(d)   provide the Client with reasonable access to the Client’s Website to perform maintenance services.

 

28.            What SPINCOTech Will Not Do

28.1         SPINCOTech will not:

(a)   alter or amend, or permit any person to alter or amend the Client’s Website without the written consent of the Client, unless otherwise agreed between both parties;

(b)   post or display on the Client’s Website 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 Contract;

(d)   sub-licence, rent, time-share, lease, lend or grant any rights to use the Client’s Website; or

(e)   assign, transfer or authorise anyone else to exercise the rights in any licence granted pursuant to this Contract.

 

29.            What The Client Will Do

29.1         The Client will, at its sole cost and expense:

(a)   develop and maintain the Client’s Website only in the event that SPINCOTech is expressly requested to build the Website to cater for such editing, otherwise SPINCOTech will deal with the general development and maintenance of the Website;

(b)   provide the Client’s goods to SPINCOTech, in such form as reasonably prescribed by SPINCOTech from time to time, and hereby grants SPINCOTech a non-exclusive, world wide, irrevocable licence to use the Client’s goods for the purposes of hosting the Client’s Website;

(c)   do all things reasonably necessary to enable SPINCOTech to host the Client’s Website on SPINCOTech server;

(d)   ensure that the Client’s goods supplied to SPINCOTech do not contain:

(i)     Prohibited Content;

(ii)    a Link to any Website that contains Prohibited Content; or

(iii)  any viruses, trojan horses, worms, time bombs or any other software program or routine designed for or capable of interfering with the operation of the Hosting Services.

 

30.            What The Client Will Not Do

30.1         The Client will not do anything that prevents or hinders SPINCOTech from providing hosting services to any other person.

 

PART III:  DEVELOPMENT OF THE WEBSITE

 

31.            What SPINCOTech Will Do

31.1         Upon approval of the specifications and quotation in accordance with this Contract, SPINCOTech will:

(a)   use its best endeavours to develop the Website in accordance with the development stages; and

(b)   to the extent specified in the Specifications, negotiate and procure third party agreements on behalf of the Client.

 

32.            What The Client Will Do

32.1         The Client will, in addition to any other obligations expressed in this Contract, have the following responsibilities:

(a)   provision of all data to be incorporated into the Website;

(b)   provision of logos, designs, graphic and related goods to be incorporated into the Website; and

(c)   provision of any other information, ideas or suggestions which are to be expressly considered by SPINCOTech in developing the Website;

(d)   ensure all information and data supplied to SPINCOTech is accurate and valid.

32.2         The Client will ensure that SPINCOTech is given such information and assistance as SPINCOTech reasonably requires to enable SPINCOTech to construct and maintain the Website.

32.3         SPINCOTech will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Website which is attributable to:

(a)   incorrect information provided by the Client, either pursuant to this clause or otherwise; or

(b)   failure by the Client to provide relevant information, either pursuant to this clause or otherwise; or

(c)   any 3rd party goods used by SPINCOTech in creation of the Website.

 

33.            Maintenance

33.1         Subject to Clause 33.2, SPINCOTech will provide the maintenance services in accordance with SPINCOTech’s maintenance service agreements.

 

33.2         The Client will procure all necessary authorisations, licences and consents to enable SPINCOTech to have access to the Website in order to provide the maintenance services.