Terms of trade

Introduction

These terms apply to all Services that we (Scratch Limited) provide to you at any time, whether now or in the future, and are incorporated by reference in any Terms of Reference.  In the case of conflict between these terms and the provisions in any other agreements or documents relating to the Services, these terms shall apply and shall be paramount and supersede the conflicting provisions unless expressly agreed to the contrary in any such other agreement or document.

Services

If we provide you with the following Services then:
​

1. Website Design and Web Development Services 
   1. We shall agree with you upon a Terms of Reference detailing the proposed Website Design and Web Development Services.
   2. You agree to make information and resources available to us in a timely manner so that we can also fulfil our obligations to you under the Terms of Reference in a timely and efficient manner.
   3. We will use our reasonable endeavours to deliver the Website Design and Web Development Services to you in accordance with the Terms of Reference.
   4. The Terms of Reference is based upon information that you provide to us. Therefore, you must make sure that you fully brief us on all matters. If you do not, the cost of the Terms of Reference may change (see clause 3).
   5. When the Terms of Reference is agreed and signed by you it shall be deemed to be a complete statement of all of your requirements as at the date of signing.  If your requirements should change following the date of signing of the Terms of Reference, we will then follow the process outlined in clause 3
2. Software and Website Hosting and Maintenance Services
   1. We will provide access to the Software and Website Hosting and Maintenance Services you have selected in the Terms of Reference and you will be billed the Subscription Fee applicable for the provision of the Software and Website Hosting and Maintenance Services. You will not be billed for the Software and Website Hosting and Maintenance Services until the Completion Date.  It is important to understand that you will be billed for the Software and Website Hosting and Maintenance Services from the Completion Date, which may be earlier than your ‘go-live’ or ‘website launch’ date
   2. We will aim to provide you with consistent and reliable Software and Website Hosting and Maintenance Services. We use professional data centres and hosting facilities but we are dependent on services provided by our suppliers (including, but not limited to, our Carriers) and cannot guarantee there will be no interruptions to our Software and Website Hosting and Maintenance Services. When access to your Website or the Software and Website Hosting and Maintenance Services is disrupted, we will use our reasonable endeavours to reinstate the Software and Website Hosting and Maintenance Services as soon as possible. We employ a variety of monitoring systems to detect major interruptions to service. If a major interruption is detected by our monitoring systems our network engineers are immediately notified so that they can take appropriate action
   3. If your website includes a content management system (CMS), we will provide you and any appointed 3rd party a CMS user account in order for you to edit and manage website content & applicable settings. Note, that whilst your website is under our hosting and management, we will not provide full “administrator” level CMS access, to minimise risk to website security & functionality.
   4. We will deliver the Software and Website Hosting and Maintenance Services to you in whatever way we deem to be most appropriate. We can at our sole discretion (and at any time) choose to change Carriers or any other suppliers
   5. Subject to any limitations in the Terms of Reference, you may choose to change the Software and Website Hosting and Maintenance Services by requesting the change in writing and we will action your request as soon as we are reasonably able to. Any change to the Subscription Fee for the Software and Website Hosting and Maintenance Services will take effect on the day we notify you that the changed Software and Website Hosting and Maintenance Services are available for your use
   6. The Software and Website Hosting and Maintenance Services you have selected may include support from our support team through various mediums including phone, email, live chat and so on. If included in the Software and Website Hosting and Maintenance Services you have selected, you will not be charged for support. There is, however, a reasonable use limit of 30 minutes of support per month per customer set on all our Software and Website Hosting and Maintenance Services. If you exceed these limits then additional Charges for support may apply on a case by case basis. If this is the case, we will advise you before providing the support which will incur additional Charges. Our support does not cover problems in your computer, communication equipment, your software (except for software (if any) provided by us), your phone line, your internet connection or any other part of the internet not controlled by us
   7. The Software and Website Hosting and Maintenance Services include physical hosting of your website and any associated media content (for example, images, PDF files and other file formats) that may be displayed to the users of your website. Unless by prior arrangement, there is a reasonable use limit of 2 gigabytes for each website. If you exceed these limits then additional Charges for disk storage space may apply on a case by case basis.
   8. We reserve the right to remove or change any Software and Website Hosting and Maintenance Services we may have offered from time to time and either replace them with new Services or move you on to the most similar or suitable Software and Hosting Service then on offer to our customers. If we do remove or change a Software and Hosting Service that affects you, we will give you as much notice as is practically possible but, in any case, not less than 60 days’ notice.
   9. A Website Hosting and Maintenance subscription may be cancelled at any time by the client, by providing 60 days notice in writing. If you would like to be provided an archive of your website files for future reference, a fee of $450+GST will apply.
3. Email marketing services and software
   1. We will deliver the Email Marketing Software and Services to you in whatever way we deem to be most appropriate. We can at our sole discretion (and at any time) choose to change Carriers or any other suppliers..
   2. If we provide access to any Email Marketing Software, you will be responsible for maintaining the security of your account, username and passwords.
   3. It is understood that we make no guarantee that HTML messages will be rendered properly on all recipients’ email programs, due to the wide variety of HTML generation tools available. We make every reasonable attempt to make sure that all email messages follow email standards, but we cannot guarantee that messages will look consistent across all email platforms.
   4. You agree to use any provided Email Marketing Software in compliance with the Anti-Spam Act. If you intend to use the provided Email Marketing Software for commercial purposes then you agree that:
      1. You have the consent of the owner of any email address you add to the database;
      2. You will include accurate contact information for yourself or your company in all emails sent, including a telephone number and/or contact address;
      3. You will use a real, active email address in the reply-to field so that you can be contacted by replying to your emails; and
      4. You will include a functional unsubscribe link in all emails sent
   5. You agree to treat all email addresses and other personal information you collect through the provided Email Marketing Software with strict confidentiality, unless consent has been granted by the identifiable individuals involved. Using the provided Email Marketing Software to harvest email addresses or other personal information to sell or distribute to a third party without consent is forbidden. We will never send promotional material or any other material to your subscribers or contact them in any way unless by mutual agreement. We will treat all data you store or collect through the supplied Email Marketing Software as confidential
4. Additional Services
   You agree that the provision of any Additional Services will also be subject to these terms.

Project Specification and Scope Changes

1. The scope of a website or IT project and the priorities associated with the different aspects of the project will often continue to evolve as the project progresses, problems are encountered and refinements are identified (“Project Variation”).  This occurs due to a number of factors including (but not limited to) a refinement in your or our understanding of your expectations, a change in your objectives, an unforeseen circumstance, or an extension or a reduction in the scope of the project.  This is a natural and expected occurrence in any website or IT project and is not due to the fault of any particular person.  Our team will therefore work in a flexible and collaborative manner with you during the course of the project so that you can participate and provide your feedback and make necessary decisions to progress the project, including making any modifications or adjustments. If this happens, it may be necessary to vary the Terms of Reference or the Estimated Budget.

Warranties

1. We warrant that:
   1. we will provide all our Services with the care and skill that can be expected from a competent website designer and developer and professional services provider; and
   2. we will use the Customer Data strictly in compliance with the Privacy Act and the Anti-Spam Act, and we warrant and represent that we will:
      1. take appropriate technical and organisational measures against the unauthorised or unlawful processing of Customer Data and against the accidental loss, disclosure or destruction of, or damage to, Customer Data; and
      2. take reasonable steps to ensure compliance with the above measures.
2. Subject to clause 4(iii) below, if we supply you with a Website, we also warrant that for 30 days from the Completion Date (“Warranty Period”) the Website will conform to the Terms of Reference.  If this warranty is breached within the Warranty Period we will bring the Website into conformity with the Terms of Reference at our cost. Note that this warranty does not extend to any deviations caused by your negligence, misuse, or alterations or modification made by you or any third party that we have not permitted in writing.
3. We do not warrant that the Website will:
   1. a. be completely free of non-conformity, defect or error (commonly referred to as ‘bugs’); or
   2. be completely secure; or
   3. work on all devices, screen resolutions, internet browsers and operating systems.As your only remedy we shall attempt through reasonable effort to correct or cure any reproducible non-conformity, defect or error by issuing corrected instructions, a restriction, or a bypass. However we shall not be obligated to correct, cure, or otherwise remedy any nonconformity, defect or error in the Website if you have made any changes whatsoever to the Website (which has not been approved by us) which has resulted in the nonconformity or defect, or if the Website has in any respect been damaged or used other than in accordance with our instructions or you have not reported such nonconformity, defect or error within a reasonable period of discovery thereof.Furthermore we do not have any responsibility for the obsolescence of any part of the Website that may result from changes in your requirements.
4. Except as expressly stated in these terms, all conditions and warranties, express or implied, are excluded to the maximum allowed by law including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose, non-infringement or title, with regard to the Website.
5. Also, if we recommend that you use a Third Party Provider’s products or services in conjunction with the Services, you agree that we will have no liability (however arising) in respect of such products or services or the provision of such products and services to you.  For the avoidance of doubt, this includes (for example) the use of any automatic credit card transaction process facility or payment gateway, accounting software, inventory management software, point of sale (POS) system, retail management system, customer relationship management (CRM) system, intranet, document management system or file storage system
6. Where you have purchased products or services to be provided by a Third Party Provider the terms of trade of those Third Party Providers shall apply to their products and services
7. It is also your responsibility to observe and comply with all relevant legislation and regulations including, but not limited to, any applicable taxation regulations and accounting principles when using any of our Services or a Third Party Provider’s products or services. In particular, and by way of examples only, when using any Third Party Provider’s accounting software, inventory management software, point of sale (POS) system, or retail management system, it is your responsibility to seek the appropriate accounting, business or financial advice from your own accountant, business or financial adviser (as the case may be).  It is also your sole responsibility to determine the suitability or fitness for any particular purpose of any of our Services or any Third Party Provider’s products or services. We do not provide any accounting or financial advice, and any recommendation by us to use any of our Services or any Third Party Provider’s products or services should not be construed as the provision of accounting or financial advice by us.

Your Responsibilities

1. It is your responsibility to:
   1. promptly provide, all the information, assistance and approvals that we may reasonably require so that we can operate our business efficiently and profitably and fulfil our obligations to you under the Terms of Reference in a timely and efficient manner.  In particular, you must respond to any request from us to:
      1. provide any information or any additional information; or
      2. provide your feedback on matters specified in our request; or
      3. provide your approval to proceed to the next immediately following stage of your project; and
      4. in each case, within the time frame stipulated in the request or, if no time frame is specified, within seven (7) days (time being of the essence); and
   2. maintain backup data necessary to replace any of your data that is lost or damaged from any cause; and
   3. obtain, and if required pay for, any consents and licenses required for you or us to incorporate third party materials in the Website; and
   4. follow any instructions provided by us in respect of the Website and/or the Services and ensure that your employees, agents and contractors who use the Website and the Services also meet your responsibilities under these terms when using the Website and/or the Services; and
   5. use the Services at all times strictly in accordance with our Acceptable Use Policy as amended by us from time to time;
   6. keep strictly confidential any password and log-on we give you for access to the administration functions of the Website; and
   7. (except to the extent that this restriction is expressly prohibited by law or permitted by the Terms of Reference) not to copy, modify, translate, reverse engineer, decompile, disassemble or create derivative works based on any software provided or licensed by us to you.
2. If you fail to respond promptly to our requests in accordance with clause 5(i)(a) then we may, but are not obligated to, proceed to the next immediately following stage of your project in order that we can complete our work and deliver your project in a cost efficient and timely manner.
3. Subject to clause 5(v), you confirm that all data, images, video, presentations, files, documents, animations, software and other information or content you supply to us or place on your Website (“Your Materials”):
   1. are complete and accurate and not likely to mislead or deceive or cause damage to the reputation of any person or company; and
   2. will not cause us, in the course of providing the Services or otherwise fulfilling our obligations under the Terms of Reference, to infringe upon any person’s Intellectual Property including, but not limited to, any copyright or patent, registered design, or trademark and you agree to indemnify us against any action taken by a third party against us in respect of any such infringement; and
   3. are not offensive, harmful, upsetting, unlawful, or otherwise objectionable. For the avoidance of doubt, this includes complying with the Film, Videos and Publications Classification Act 1993.
4. In order to reduce fraud and to protect sensitive credit card information, you agree that you will not store credit card details and will only process credit card transactions using systems that are PCI DSS compliant and that are authorised by us or your banking institution.
5. You do not warrant that any Customer Data is:
   1. a. accurate, complete, reliable, secure, useful, fit for purpose or timely;
   2. has been tested for use by us; or
   3. will be suitable for or be capable of being used by us.

Intellectual Property

1. We need to be able to use our code (including, but not limited to, any code developed specifically for your website project), website interfaces, layouts and templates for more than one client. Therefore, except for any Intellectual Property in Your Materials and any Content Materials, we and our suppliers own all Intellectual Property in the Website (including, but not limited to, any code, the user and administration interfaces, measurement, administration and tracking tools) and all new Intellectual Property (if any) developed or created by us, our agents, employees and contractors in connection with the Services including, but not limited to, elements (in source and object code) which form part of the generic functionality of the Website or elements (in source and object code) which implement visual features or the layouts of the Website (including, but not limited to, the Content Materials) (collectively, “Scratch IP”).
2. Provided you meet your payment obligations for the Website Design and Web Development Services you are granted a personal, non-exclusive, non-transferable licence to use Scratch IP for the term of and in the manner anticipated in the Terms of Reference.  We warrant that we have the right to grant you a licence to use the Services in the manner anticipated in the Terms of Reference.  However, unless we have expressly agreed otherwise in writing, no license is given for you to use Scratch IP to develop any products or software that will be sold by you or anyone else.
3. Provided you meet your payment obligations for the Website Design and Web Development Services, you are granted all Intellectual Property rights (including copyright) in the Content Materials provided as part of the Content Services except where the Content Materials are owned by third parties and licensed to us in which case we will endeavour to obtain the necessary sub-licence or consent for you to use such Content Materials in the manner anticipated in the Terms of Reference.
4. Except as provided by this clause 7, you have no rights in any Scratch IP.  You acknowledge and agree that any goodwill in Scratch IP is and remains our property.
   1. apply for registration as a trade mark or company of any words or logos that are identical with or deceptively or confusingly similar to Scratch IP;
   2. directly or indirectly challenge or contest the validity of our rights to Scratch IP; or
   3. represent that you have any right, title or interest in Scratch IP except as expressly granted by written agreement.
5. You must conform to our reasonable directions from time to time relating to using any Scratch IP.

Liability

1. We will not be liable to you, or any third party, in any way whatsoever for any:
   1. loss or damage to information, documentation or data from any cause;
   2. breach of security;
   3. loss of profit; or
   4. incidental, indirect, special or consequential loss or damage.
2. In any event, our maximum aggregate liability to you arising out of any claim for loss and/or damages (for any cause whatsoever) will under no circumstances exceed an amount equal to the total Charges paid by you under the relevant Terms of Reference in the 12 month period immediately preceding the event giving rise to liability.
3. The limitations and exclusions of liability in this clause 7 shall apply however liability arises, whether in contract, tort (including negligence), breach of statutory duty or otherwise.
4. Sometimes we will not be able to fulfil our responsibilities for whatever reason. If such a situation should arise, then clause 7(i) (ii) and (iii) will apply.
5. You agree that we should not be exposed to your business and operational risks and so you agree:
   1. that we will not be liable for the results you achieve (or not achieve) from your use of the Services, including any loss of profits, costs or damages related to products or services that you sell, or are unable to sell; and
   2. to indemnify us against any claims, damages, liabilities, costs and expenses whatsoever and howsoever arising out of the conduct of your business, including your use of the Services and the Website.
6. If you are not satisfied with the Services, your sole and exclusive remedy is to terminate the Terms of Reference in accordance with Clause 12.
7. We will be liable to you in respect of any claims, damages, liabilities, costs and expenses whatsoever and howsoever arising directly as a result of our improper or wrongful use of Customer Data provided that we will not be liable to you to the extent any such claim, damage, liability, cost or expense relates or results from a breach of the Privacy Act or Anti-Spam Act caused by:
   1. you supplying Customer Data to us;
   2. you instructing us to use that Customer Data to contact the relevant Customer but not having the necessary authorisations to do so under the Anti-Spam Act; and/or
   3. the specific content of any material or information which you instruct us to distribute.

Payment Terms

1. Payment Terms
   1. Standard Payment Terms:  You agree to pay the Charges for:
      1. Website Design and Web Development Services as specified and in the manner provided in the relevant Terms of Reference; and
      2. all Software and Website Hosting and Maintenance Services monthly in advance from the Completion Date.
2. All Charges are in New Zealand dollars and are exclusive of all taxes and duties
3. Unless otherwise specified above, you agree to pay all invoices on the due date as shown on the invoice. You shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to you by us nor to withhold payment of any invoice because part of that invoice is in dispute
4. If you do not pay the Charges on time we may, at our option do any or all of the following:
   1. suspend or restrict your use of the Services;
   2. terminate the relevant Terms of Reference in accordance with clause 12;
   3. refer your account to our debt collection agency;
   4. charge you all collection costs incurred by us, and you agree to indemnify us from and against all costs and disbursements incurred by us in recovering the unpaid Charges (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, our collection agency costs, and bank dishonour fees);
   5. charge you default interest from the date when payment became due, until the actual date of payment of all amounts owing (including default interest), at a rate of two percent (2%) per calendar month (which shall at our sole discretion compound monthly at such a rate) after as well as before any judgment;
   6. set-off any amounts due from you against any moneys due from us or held in our account to your credit.

Privacy Act 1993

1. You authorise us or our agents to:
   1. access, collect, retain and use any information about you;
      1. (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing your creditworthiness;
      2. for the purpose of meeting our obligations and enforcing our rights under these terms and the Terms of Reference; or
      3. for the purpose of marketing products and services to you.
   2. disclose information about you, whether collected by us from you directly or obtained by us 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 you.
   3. with the exception of any Confidential Information, exchange the information we hold about you with our contractors, agents, representatives and Carriers for the purpose of meeting our obligations under these terms and the Terms of Reference.
   4. Monitor and record calls you make to us or we make to you in order to improve the service we provide to you and to assist us with meeting our obligations to you.
2. Where you are an individual the authorities under clause 9(i) are authorities or consents for the purposes of the Privacy Act.
3. You shall have the right to request us for a copy of the information about you retained by us and the right to request us to correct any incorrect information about you held by us.

Confidential Information

1. Each party will keep all information about the Terms of Reference, the Services, the Website and other information that is confidential to the other party (including without limitation, Customer Data) (“Confidential Information”) confidential and will not disclose this information to a third party without the consent of the other party.  Each party shall ensure that its employees, subcontractors, professional advisors and agents abide by these obligations of confidentiality.
2. Unless we agree otherwise in writing, we will each use any Confidential Information belonging to the other party only for the purposes of fulfilling our obligations to each other under the Terms of Reference and as permitted in these terms.
3. Confidential Information does not include information clearly required to be disclosed by law; or is generally known and available without a party having breached its obligations under this clause 10; or is, or has been, independently and lawfully acquired or developed without the benefit or use of the other party’s Confidential Information
4. We agree:
   1. to use its best endeavours to comply at all times with the Privacy Act and the Anti-Spam Act, and to prevent any Security Breach;
   2. to only disclose Customer Data to those of our Representatives for the purposes of the Terms of Reference who are aware of the privacy obligations of the Privacy Act and where we are at all times responsible for the Representatives’ compliance with the Privacy Act and the confidentiality obligations set out in this clause;
   3. to ensure that the Customer Data is kept secure and shall use all reasonable endeavours to prevent, and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display or distribution of the Customer Data;
   4. to only make copies of the Customer Data to the extent reasonably necessary for the purposes of the Terms of Reference (which, for clarity, includes back-up, mirroring, security, disaster recovery);
   5. to not extract, re-utilise, use, exploit, redistribute, re-disseminate, copy or store the Customer Data other than for the purposes of the Terms of Reference;
   6. to, at our expense, promptly notify you and fully cooperate with you to remedy any of the following as soon as reasonably practicable:
      1. If we become aware of any unauthorised or unlawful processing of any Customer Data or that any Customer Data is lost or destroyed or has become damaged, corrupted or unusable; or
      2. becomes aware of any Security Breach.
5. Each party will immediately stop using any Confidential Information on termination of the Terms of Reference (for any reason whatsoever) and return to the other party all Confidential Information, or destroy all Confidential Information if directed by the other party, and to the extent possible, destroy any material that it has created or generated from the Confidential Information, and provide written confirmation to the other party that it has complied with this clause 10(v).

Suspension of Services

1. We may suspend the provision of the Services to you:
   1. if you do not meet all of your responsibilities under the Terms of Reference or these terms, provided we give you 7 days’ notice of such suspension.
   2. if a Carrier supplying services to us suspends or interrupts its service to us (including for scheduled maintenance) and that suspension or interruption affects our ability to provide the Services to you.
   3. in an emergency or whenever we, any Carrier, or any other appropriate person considers that it is necessary or reasonable to protect persons, systems or other property.
2. We may, without any prior notice to you, remove material from or block access to your Website where we have received a notice of infringement under section 92C of the Copyright Act 1994 or any similar legislation in any other jurisdiction.  You agree that we shall have no liability to you in respect of any loss (including loss of profit), cost or damage suffered or incurred by you as a result of such action. If there is a dispute between you and a third party regarding your Website or the contents of your Website, you acknowledge that it is your responsibility to resolve such dispute with the third party and you agree to indemnify us against all claims, proceedings or actions by such third party against us including costs (legal or otherwise) that we may incur in defending such claims, proceedings or actions on a full indemnity basis.
3. Unless we otherwise agree, the Charges will continue to apply where we have suspended the Services or blocked access to your Website or otherwise removed any alleged infringing material pursuant to this clause.

Termination

1. Either of us may terminate a Terms of Reference (including the Software and Website Hosting and Maintenance Services) by providing written notice to the other party if the other party has:
   1. been placed in receivership or liquidation, or entered into an arrangement or makes an assignment for the benefit of its creditors, or has become insolvent or bankrupt; or
   2. had a person who holds a security interest in respect of all or any part of the other party’s property become entitled to exercise the rights granted to that person under that security interest; or
   3. subject to clause 12(ii), breached a term of the Terms of Reference, or these terms and failed to remedy such breach after being given written notice allowing at least 30 days to remedy the breach.
2. We may terminate the Terms of Reference (including the Software and Website Hosting and Maintenance Services) on the occurrence of any of the following events:
   1. if you have not paid any Charges within 14 days of the due date for payment, with the exception of any amounts that are the subject of a genuine dispute and which you have previously notified us in writing as being in dispute;
   2. if in our reasonable opinion, you are using the Services for any unlawful, abusive or fraudulent purpose;
   3. if you fail to comply with a legal requirement of any of our Carriers concerning your use of the Services;
   4. if you commit a material breach of the Terms of Reference or these terms or any other agreement between us, when the breach is not reasonably capable of being remedied;
   5. if you abuse, harass or threaten (including, but not limited to, threats of abuse or retribution or using any form of cyber-bullying) verbally or in writing any of our employees, contractors, agents or officers; or
   6. if you have failed to fulfil your obligations under clause 5(i)(a).
3. We may terminate a Terms of Reference without cause by notice in writing to you at any time.  If we exercise our rights under this clause we will promptly repay to you all of the Charges you have paid to us under that Terms of Reference up to the date of termination with the exception of Charges for the Software and Website Hosting and Maintenance Services and we shall be wholly discharged from any further obligations under the Terms of Reference or these terms.  For the avoidance of doubt, in the event of termination pursuant to this clause 12(iii):
   1. clause 12(iv) shall not apply; but
   2. clause 12(v) shall continue to apply.
4. Upon termination by you or by us (other than termination pursuant to clause 12(iii)):
   1. any amounts owing by you to us under the Terms of Reference and these terms must be paid immediately; and
   2. in the event that you have failed to fulfil your obligations under clause 5(i)(a), you also agree to pay any loss or expense suffered by us as a result of your delay or failure to respond, including, but not limited to:
      1. the costs and disbursements incurred by us for unsuccessfully following up with you, repeatedly, regarding our request(s); and
      2. the costs for rescheduling your project to later date(s); and
      3. any costs incurred by us to source and schedule replacement work in order to mitigate our losses as a result of you failing to fulfil your obligations under clause 5(i)(a); and
      4. any other losses arising from the commitment of our time and resources to your project to the exclusion of any other project, including, but not limited to, the loss of the revenue which, but for the cancellation, we would otherwise have received from your project; and
   3. subject to clause 12(v), we will be regarded as wholly discharged from any further obligations or performance under the Terms of Reference or these terms.
5. Termination or cancellation of a Terms of Reference shall not relieve either party from any right, liability, or claim that has accrued on or before the date of termination or cancellation. The provisions of clauses 6, 7, 8(ii), 8(iii), 8(iv), 9, 10, 12 and 13 of these terms will survive termination or cancellation of a Terms of Reference.

Marketing

1. You agree that we may:
   1. include a reference in the footer (or equivalent) of the Website, crediting the design, development and hosting of the Website to Scratch and/or any of our approved suppliers; and
   2. list you on our marketing materials, including on our website; and
   3. from time to time, we may send you e-mails with articles and information about our organisation and products and services that we think may be of interest to you.  You may elect not to receive such e-mails at any time by clicking the ‘unsubscribe’ link at the bottom of those e-mails or by contacting us directly via email or phone.

Variation of Terms

We may amend or replace these terms from time to time.  The amended or replacement terms (“Amended Terms”) will then apply to the Services.  We will post the Amended Terms on our website and we will communicate these changes to you via phone or email.  If you object to the Amended Terms, you may terminate a Terms of Reference by providing us with one month’s written notice within one month of having been notified of the Amended Terms. You will be taken to have accepted the Amended Terms if you make a further request of us to provide Services to you or if you continue to make use of our Services and do not give us any notice to terminate the Terms of Reference within the required timeframes.

Miscellaneous

1. You agree that the Terms of Reference and these terms comprise the entire agreement between you and us in respect of the Website and the Services and, unless expressly stated in the Terms of Reference, all prior agreements, warranties, representations, written, verbal or otherwise, are excluded and superseded.
2. You agree that both of us will attempt to resolve any dispute under these terms by negotiating in good faith for at least 14 days
3. The failure by us to enforce any provision of these terms shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision.  If any provision of these terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired
4. If any of your contact details change, you agree to promptly provide us with your new contact details.  We will send you notices and other communications to the last known contact details you have given to us
5. You warrant that you have the power to enter into this agreement and have obtained all necessary authorisation to allow you do so, that you are not insolvent and that this agreement creates binding and valid legal obligations on you
6. You may not assign any rights or obligations under these terms without our prior written consent. We may assign any rights under these terms without obtaining your prior approval. We may also sub-contract any of our obligations under these terms, but in so doing, will not be relieved of any liability to you under these terms
7. Nothing in a Terms of Reference will be deemed to create or constitute a partnership between the parties nor be deemed to create or constitute one party as an agent of another party for any purpose whatever.  No party will have any authority or power whatever to bind or commit, act or represent or hold itself out as having authority to act as an agent of, or in any way bind or commit the other parties to any obligations.
8. We may decline your application for the Services (and/or any request for Additional Services) at our discretion and we do not have to disclose our credit criteria or the reasons for our decision
9. These terms and any contract to which they apply (including, but not limited to, the Terms of Reference) shall be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the courts of New Zealand.

Definitions

1. 1. In these terms, unless the context requires otherwise:
      “Acceptable Use Policy” means our acceptable use policy from time to time, the latest version of which is set out on our website.“Additional Services” means any additional services (not being Software and Website Hosting and Maintenance Services or Website Design and Web Development Services or Third Party Provider products or services) that we agree to provide to you.
      
      “Amended Terms” has the meaning given to it in clause 14.“Anti-Spam Act” means Unsolicited Electronic Messages Act 2007.“Carriers” means any entity with whom we have entered into an agreement or arrangement (directly or indirectly) providing for the passing of customer generated or customer destined internet traffic between us and that entity.“Charges” means the charges payable by you to us under the Terms of Reference for the Website Design and Web Development Services, the Software and Website Hosting and Maintenance Services and Email Marketing Software and Services set out in the Terms of Reference, and shall include any amount payable in respect of any Project Variation or Additional Services or Third Party Provider products or services.“Completion Date” means the date on which we advise you that the Website is ready for the loading of your information and data.  For the avoidance of doubt, the Completion Date is not the same as the ‘go-live’ or ‘website launch’ date which may be later in time than the Completion Date.“Confidential Information” has the meaning given to it in clause 10(i).“Content Materials” means all written copy, illustrations, diagrams, photographs, animations, 3D models, video or other materials provided to you as part of the Content Services but excluding elements (in source and object code) which form part of the generic functionality of the Website or elements (in source and object code) which implement visual features or the layouts of the Website.“Content Services” means any copywriting, illustration, photography, video production, or other services to provide Content Materials as set out in a Terms of Reference.“Customer” means any of your customers.“Customer Data” means “personal information” (as defined in the Privacy Act) of any Customer.“Email Marketing Software and Services” means the provision of email marketing software as a service.

      “Estimated Budget” means any estimated budget provided by us to you for the provision of Website Design and Web Development Services, Email Marketing Software and Services and any other services which you may from time to time request us to provide to you.

      “Intellectual Property” means all intellectual property as defined in article 2 of the Convention Establishing the World Intellectual Property Organisation of 1967 anywhere in the world (including present and future intellectual property rights) and, without limitation, includes any discovery, invention, novel or original designs (whether or not registrable as designs or patents), any trade marks or trade names or goodwill rights associated with such marks, applications for any of the foregoing, the copyright in any copyright works including, but not limited to, any software, drawings, plans, specifications, designs, know-how and trade secrets owned or used, secret process or improvement in procedure, and all variations, modifications or enhancements to any of them; in each case whether registered or unregistered, and including any application or right to apply for the grant of any of the foregoing, and all rights or forms of protection which have equivalent or similar effect to any of the foregoing which may subsist anywhere in the world; being separately developed and owned by and/ or licensed to us.

      “Project Variation” has the meaning given to it in clause 3(i).

      “Proposal” means the proposal accepted by you or on your behalf, in respect of the Services, and includes any changes to it which were made at your request

      “Representative” means any director, officer, employee, agent, contractor, financier, professional adviser or related entity of a party.

      “Scratch IP” has the meaning given to it in clause 6(i).

      “ScratchMail” means a web-based email marketing solution provided by us.
      
      “Services” means the Website Design and Web Development Services, the Software and Website Hosting and Maintenance Services, the Email Marketing Software and Services, and the Additional Services as described in clause 2.

      “Security Breach” means any security breach relating to any Customer Data which is reasonably determined by you as being sufficiently serious or substantial to justify notification by any person (including any Customer) to the Privacy Commissioner or other relevant privacy-related authority in accordance with the Privacy Act, or sufficiently serious or substantial to give rise to a material risk of proceedings being issued by any third party (including any Customer) affected by the breach.

      “Software and Website Hosting and Maintenance Services” means the provision of software as a service, ongoing hosting and any other support Services as set out in the Terms of Reference

      “Standard Payment Terms” means the payment terms described in clause 8(i)(a).

      “Subscription Fee” means the monthly or annual fee payable by you to us for the Software and Website Hosting and Maintenance Services and any other services which you may from time to time request us to provide to you as detailed in the relevant Terms of Reference.

      “Terms of Reference” means:
      (a) the Proposal (if any); and
      (b) any Estimated Budget; and
      (c) each agreed Project Variation (if any); and
      (d) the specifications for any Website which forms part of the Services (if any),

      which, together with these terms and our Acceptable Use Policy, form your contract with us.

      “Third Party Provider” means any provider of products or services other than us.

      “Warranty Period” has the meaning set out in clause 4(ii).

      “we” or “us” means Scratch Limited and “our” has a corresponding meaning.

      “Website” means the website we create for you as part of the Website Design and Web Development Services.

      “Website Design and Web Development Services” means the website design and development, consulting, administration, implementation and marketing services and more fully described in the relevant Proposal and includes consulting, design, computer programming, Content Services, administration, training and marketing services for the purpose of creating, customising, improving and promoting the Website.

      “you” means the customer under the Terms of Reference and “your” has a corresponding meaning.

      “Your Materials” has the meaning given to it in clause 5(iii)

      “Scratch’s IP” has the meaning given to it in clause 6(i).

   2. In these terms a reference to any legislation is a reference to that legislation as amended or replaced from time to time, and includes any regulations or legislative instrument made under it.