Terms and Conditions

TERMS AND CONDITIONS OF ATTAIN LIMITED (“ATTAIN”)

1. By agreeing to use Attain’s services, you expressly accept all the Terms and Conditions set out below in full. You must not use Attain’s services if you have any objection to any of these Terms and Conditions.

PRICING

2. All prices are in New Zealand Dollars and are exclusive of any Goods and Services Tax, unless stated to be otherwise.
3. Unless an invoice contains a manifest error, all invoices are deemed accepted by you five days after delivery to you, and payable within the payment terms set out in the invoice without any right of set-off.
4. For any retainer of greater than 12 months’ duration, on the 12-month anniversary of the retainer, Attain may at its sole discretion either:
   • Increase the retainer price in line with the current New Zealand CPI percentage; or
   • Decrease the retainer hours in line with the current New Zealand CPI percentage.

DEFAULT IN PAYMENT AND SUSPENSION OF SERVICES

5. In the event you fail to pay your invoice in full by the payment date then Attain will be entitled at its sole and absolute discretion to take any one or more of the following steps:
   • charge you default interest on any outstanding balance due and payable at a rate of 2% per month (24% PA) compounding weekly;
   • if any amount which is due and payable remains outstanding for more than one calendar month after falling due, Attain may do any of the following:
     • Advising you of the sum outstanding, including any accrued default interest;
     • Attain may suspend its services to you pending payment of the outstanding amount and any accrued default interest, which includes taking websites or Social Media offline;
     • At Attain’s sole discretion, offering third-party finance to cover any outstanding amounts and accrued default interest; and
     • Advising you that if the amount due and payable (including any default interest) is not paid within that 5 working day period, Attain may initiate debt recovery action without further notice, which may include issuing a statutory demand for any unpaid amounts, and/or calling upon any personal guarantee (if applicable).

6. You agree to pay Attain’s legal and any other reasonable debt recovery costs on an indemnity basis if debt recovery actions are taken by Attain to secure payment of any outstanding invoice amounts and/or penalty interest.

YOUR RESPONSIBILITIES AND OBLIGATIONS

7. You agree that you are responsible for all your own activities, conduct and communication while using Attain’s services. You agree that you will not use Attain’s services for any illegal or unauthorised purpose or in violation of any applicable laws or regulations or otherwise in violation of the legal rights (including the right of privacy) of any third party and you will not hold yourself out as a representative of Attain or any of its partners or attempt to assume any obligations on behalf of Attain.

INTELLECTUAL PROPERTY

8. All Intellectual Property Rights with respect to Attain’s methodology, business and any associated processes or documentation and text created by Attain or on its Website are the sole property of Attain or its partners (or third party intellectual property licensors to Attain or its partners where applicable) and may not be used or reproduced in full or in part without prior written agreement from the owner of the Intellectual Property Rights.
9. All Intellectual Property Rights remain the property of the owner. You acknowledge and agree that you do not gain any Intellectual Property Rights, by licence or otherwise by using Attain’s services.

TRADEMARKS

10. All trademarks, service marks and trade names of Attain and its partners are trademarks or registered trademarks of Attain and its partners and you may not use them without the written permission of Attain.

CONFIDENTIALITY

11. You acknowledge and agree that while working with Attain you may be exposed to information which is confidential or proprietary in nature in whole or in part during the course of working with Attain or any of its partners, employees, affiliates or agents (“Confidential Information”).
12. Attain likewise acknowledges that it may be exposed to Confidential Information held by you in the course of Attain’s engagement.
13. Both parties agree that they will:
    • maintain all Confidential Information in strict confidence;
    • not disclose Confidential Information to any third party without the consent of the disclosing party or parties;
    • not use Confidential Information in any way directly or indirectly detrimental to either party or any of their respective partners or any third party; and

DISCLAIMER

14. Attain aims to support and assist you in reaching your marketing, sales and growth goals, but your success depends primarily on your own effort, motivation, commitment and follow-through. Attain and its partners do not predict or guarantee that you will achieve a particular result or desired outcome and you accept and understand that results will differ for each business. By using Attain’s services, you agree that there are no guarantees as to the desired outcomes or results you can expect from Attain. You agree that Attain may subcontract any of its services to relevant providers.
15. The materials or information Attain provide are provided “as is” and without warranties of any kind, whether express or implied. You agree that Attain’s services are acquired for a business purpose and that the Consumer Guarantees Act 1993 does not apply.
16. Any profits, efficiencies, capabilities, opportunities or examples shown by Attain are only estimates of what might be possible now or in the future. There can be no assurance as to any particular outcome. You agree that Attain and its partners are not responsible for your profits, the success or failure of your personal or business decisions.

LIMITATION OF LIABILITY

17. To the maximum extent permitted by law, Attain and its partners exclude all liability and responsibility to you (or any other person) in contract, tort (including negligence), equity, or otherwise, for any loss, including consequential loss, or damage resulting, directly or indirectly, from any use of, or reliance on, Attain.
18. In the event you suffer loss or damage as a result of any acts or omissions by Attain or its partners that cannot be excluded by the preceding limitation of liability clause, then you agree to limit the total liability of Attain and its partners to a maximum of NZD$10,000 for any one incident or a series of connected incidents giving rise to liability.

INDEMNITY AND LIABILITY

19. You agree to indemnify Attain and any of its agents, consultants, affiliates, partners, employees, shareholders, directors, or anyone otherwise affiliated with the business and hold them harmless from any and all claims, allegations, damages or losses suffered or incurred to the extent such claims, allegations, damages or losses arise out of or in connection with your:
    • failure to comply with any of these Terms and Conditions;
    • infringement of any Intellectual Property Rights, confidentiality, privacy of Attain or a third party; and
    • liability accruing as a result of any act or omission by you which was not reasonably foreseeable in terms of the commercial relationship between you and Attain.
20. Directors accepting these Terms and Conditions on behalf of a company agree that are personally liable for any outstanding debt under these Terms and Conditions as if they were parties to the Terms and Conditions.
21. In the event that Attain is providing its services to a company, the director(s) or authorised representative(s) of the company do(es) hereby bind themselves in favour of Attain as surety and as co-principal debtor with the company for the obligations under these Terms and Conditions. In the event of the company failing to honour and perform any of its obligations under this agreement the director(s) or authorised representative(s) of the company shall be personally responsible for the obligations of the company under these Terms and Conditions.

SUSPENSION AND TERMINATION

22. Without limitation to the exercise of any other rights under this Agreement, Attain may at its discretion suspend or terminate the supply of services:
    • if you fail to make any payment when due or otherwise default in any of your obligations in terms of clause 5 and 6 above; or
    • If you, or any commercially related person or entity, become insolvent, have an administrative receiver appointed or are compulsorily or voluntarily wound up or the Company bona fide believes that any of those events may occur; or
    • If you breach a material term of this Agreement or the Non-Disclosure Agreement.

SEVERABILITY

23. If any provision of these Terms and Conditions are or at any time become invalid, illegal or unenforceable under any enactment or rule of law such provision will to that extent be deemed not to form part of these Terms and Conditions but the validity and enforceability of the remainder of these Terms and Conditions will not be affected.

ENTIRE AGREEMENT

24. These Terms and Conditions, including any legal notices and disclaimers, will govern the rights and obligations of Attain and its partners and you and represent the entire agreement and understanding in respect of your use of Attain’s services. By using Attain’s services you are agreeing to all parts of these Terms and Conditions, including any legal notices and disclaimers.

VARIATION

25. No variation(s) to these Terms and Conditions will be valid and binding unless recorded in writing and signed by a duly authorised signatory of each Party.

NO IMPLIED WAIVER

26. The non-exercise or delay in exercising any right or remedy under these Terms and Conditions will not constitute a waiver by Attain of any part of these Terms and Conditions or any other, right or remedy available to it.

GOVERNING LAW

27. Your use of Attain’s services shall be governed by the laws of New Zealand and subject to the exclusive jurisdiction of the New Zealand Courts.

DESIGN SPECIFIC

28. Unless otherwise stated:
    • Patent/copyright is the responsibility of the client.
    • Our initial meeting is included in the above cost. Further meetings, if required, will be subject to an additional charge.
    • Proposal does not include printing costs. These will be quoted separately
    • Proposal does not include photo retouching unless indicated above.
    • In the event a font needs to be purchased, this will be highlighted to the client at concept stage.
    • Any illustration, photography or moving imagery is not included and will be quoted separately
    • Travel & accommodation expenses to oversee the print quality control and briefing are additional.