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.
1.1 All prices are in New Zealand Dollars and are exclusive of any Goods and Services Tax, unless stated to be otherwise.
1.2 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.
1.3 For any retainer of greater than 12 months’ duration, on the 12-month anniversary of the retainer, Attain may at its sole discretion either:
1.3.1 Increase the retainer price in line with the current New Zealand CPI percentage; or
1.3.2 Decrease the retainer hours in line with the current New Zealand CPI percentage.
2.1 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:
2.1.1 charge a late fee of $150 for administration costs;
2.1.2 charge you default interest on any outstanding balance due and payable at a rate of 2% per month (24% PA) compounding weekly;
2.2 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:
2.2.1 Advising you of the sum outstanding, including any accrued default interest;
2.2.2 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;
2.2.3 At Attain’s sole discretion, offering third-party finance to cover any outstanding amounts and accrued default interest; and
2.2.4 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).
2.3 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.
3.1 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.
3.2 You must:
3.2.1 provide all data, logos, designs, graphic and related material (excluding material to be developed by us as set out in the Proposal or the Special Maintenance Agreement);
3.2.2 ensure that we are given all information, cooperation and assistance as we reasonably require to complete our obligations; and
3.2.3 ensure that any Materials you provide us: (i) do not infringe the Intellectual Property Rights of any person; and (ii) are not unlawful, obscene, offensive, threatening, abusive or defamatory.
3.2.4 We acknowledge that any information, data, Materials or other materials provided by you under this clause 3 are, and at all times will remain, your property and your confidential information.
4.1 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.
4.2 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.
5.1 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.
6.1 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”).
6.2 Attain likewise acknowledges that it may be exposed to Confidential Information held by you in the course of Attain’s engagement.
6.3 Both parties agree that they will:
6.3.1 maintain all Confidential Information in strict confidence;
6.3.2 not disclose Confidential Information to any third party without the consent of the disclosing party or parties;
6.3.3 not use Confidential Information in any way directly or indirectly detrimental to either party or any of their respective partners or any third party
7.1 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.
7.2 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.
7.3 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.
8.1 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.
8.2 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.
9.1 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:
9.1.1 failure to comply with any of these Terms and Conditions;
9.1.2 infringement of any Intellectual Property Rights, confidentiality, privacy of Attain or a third party; and
9.1.3 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.
9.2 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.
9.3 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.
10.1 Without limitation to the exercise of any other rights under this Agreement, Attain may at its discretion suspend or terminate the supply of services:
10.1.1 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
10.1.2 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
10.1.3 If you breach a material term of this Agreement or the Non-Disclosure Agreement.
10.2 The client may terminate the services by providing not less than one month’s notice in writing to the service provider. The notice must specify the effective date of termination. The service provider reserves the right to terminate the services immediately, in case of a material breach by the client of any obligation under this agreement. Upon termination, the client will be liable for any outstanding fees or charges owed to the service provider.
10.3 Off-boarding Expenses:
10.3.1 In the event of termination of the services by either party under this agreement, the client shall be liable for any reasonable off-boarding expenses incurred by the service provider as a result of such termination. The off-boarding expenses shall include but not be limited to, any costs associated with transitioning the services to a new provider or transferring data to the client. The service provider shall provide the client with a reasonable estimate of these expenses, and the client shall be responsible for paying such expenses within 7 days of receipt of an invoice from the service provider.
11.1 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.
12.1 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. 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.
13.1 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.
14.1 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.
15.1 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.
16.1 Unless otherwise stated:
16.1.1 Patent/copyright is the responsibility of the client.
16.1.2 Our initial meeting is included in the above cost. Further meetings, if required, will be subject to an additional charge.
16.1.3 Proposal does not include printing costs. These will be quoted separately
16.1.4 Proposal does not include photo retouching unless indicated above.
16.1.5 In the event a font needs to be purchased, this will be highlighted to the client at concept stage.
16.1.6 Any illustration, photography or moving imagery is not included and will be quoted separately
16.1.7 Travel & accommodation expenses to oversee the print quality control and briefing are additional.
17.1 The client will be responsible for all licensing fees of third party products incorporated, with their knowledge and approval, into the final product.
17.2 Change Requests. In the event that the requirements of the client change during the term of the agreement or if the client wishes to add or delete functionality from the scope of the work, The client will be entitled to request this change. Attain will respond to any change request with a fair, reasonable and accurate proposal which identifies all cost and resource implications. Attain will not unreasonably refuse to implement a change request.
In the event that Attain requires a fair and reasonable change in scope of the project during the terms of the agreement, Attain will be entitled to request this change, identifying all cost and resource implications and other relevant information. The client will be expected to respond promptly to such a change request, and not unreasonably refuse the change request.
In general, changes to the configuration will be costed on the basis of the same rates used to calculate the cost of services already performed by Attain.
17.3 If the Proposal states that we are to provide any Domain Name Registration Services, this does not include trademark searching. It is your responsibility to ensure that any proposed domain names do not infringe the Intellectual Property Rights of any third party.
18.1 If the Proposal states that we are to provide any Search Engine Submission Services: (a) we will:
18.1.1 assist you to select keywords which will increase the likelihood of the Web Pages being highly ranked when the target users of the Web Pages carry out searches which are related to the type of material in the Web Pages on major search engines; and
18.1.2 submit details of the Web Pages to major search engines; and
18.1.3 check the results of the Search Engine Submission Services detailed in paragraph (a) and (b) above at various times during the 16 week period after Go-Live (the “checking period”);
18.1.4 if the checking carried out under paragraph (c) shows that it is necessary, re-submitting details of the Web Pages during and/or subsequent to the checking period; and
18.1.5 submit the results of the checking carried out under paragraph (c) to you (in both summary and detailed form), together with our recommendations as to further steps that could be taken increase the search engine ranking of the Web Pages.
18.1.6 we do not provide any warranty as to the effectiveness of the Search Engine Submission Services in promoting the Web Pages within search engines.
19.1 If the Proposal states that we are to provide any Hosting Management Services: we will:
19.1.1 arrange with the Hosting Provider to enable access to the Web Pages when the Web Pages are agreed or deemed to be ready to go live under clause 5; and
19.1.2 arrange for the Hosting Provider to invoice us for the hosting costs and pass those costs on to you; and
19.1.3 act as a first point of call during our usual business hours for questions, issues or problems with the hosted Web Pages;
19.2 other than as set out in the Proposal and in these Terms and Conditions, we do not provide any warranties and have no responsibility for the hosting services;
19.3 we may arrange for any Materials contained within the hosted Web Pages to be removed or disabled if those Materials:
19.3.1 infringe the Intellectual Property Rights of any person; or
19.3.2 are unlawful, obscene, offensive, threatening, abusive or defamatory, provided we use our reasonable endeavours to consult with you and agree a course of action in relation to those Materials prior to taking any such action.
19.4 you must comply with the Hosting Provider’s terms and conditions for hosting, which are available from the Hosting Provider’s and/or from us on request; and
19.5 you are responsible for:
19.5.1 any set-up and configuration charges charged by the Hosting Provider;
19.5.2 any reinstatement charges should the hosting of the Web Pages be terminated pursuant to clauses 12(b) or 16.5 or pursuant to the Hosting Provider’s terms and conditions;
19.5.3 any charges associated with a change of Hosting Provider;
19.5.4 any set-up, reconfiguration and/or redevelopment costs as a result of the Hosting Provider changing its hosting environment.
20.1 The start date for the Services:
20.1.1 the date on which the last party signs the Proposal or the Special Maintenance Agreement; or
20.1.2 the start date specified in the Proposal or the Special Maintenance Agreement,
20.1.3 the date agreed in writing by both parties.
20.2 We will use our reasonable endeavours to complete the Services within the time estimates and cost estimates contained in the Proposal or the Special Maintenance Agreement. However, you acknowledge that:
20.2.1 while we have used our reasonable endeavours to accurately estimate our time and costs to provide the Services, we shall not be bound by these estimates unless they are expressed to be fixed; and
20.2.2 changes in your plans or unforeseen circumstances may adversely impact on our ability to deliver the Services on schedule within budget and that in such circumstances, unless the Proposal provides otherwise:
20.2.2.1 we shall not be liable for delays in the delivery of the Services; and
20.2.2.2 we may request changes to the dates and costs continued within the Proposal or the Special Maintenance Agreement.
20.3 If we become aware of any likely time and/or cost overruns (over and above the estimates contained in the Proposal or the Special Maintenance Agreement) we will notify you as soon as reasonably possible.