ZYBER TERMS OF SERVICE
(as of June 2015)
Your acceptance of any quote, estimate of goods and / or services supplied by Zyber Limited, indicates acceptance of these Terms and Conditions and are agreeing to be bound by the appropriate proprietary system(s) Terms and Conditions.
Third Party Works means the works and materials comprised in the Website, the Intellectual Property Rights in which are owned in whole or part by a third party (excluding the Customer Works);
Unlawful Content has the meaning given to it in Clause 7.1;
Website means the website or web application functionality to be supplied by Zyber Limited for the Customer under the Agreement;
Website Content means the Customer Works implemented into the Website using the Content Management System through a standard web browser;
Website Deployment means the Website is published making it publicly accessible on the internet under the Domain Name(s) as outlined in the Proposal;
Year means a period of 365 days (or 366 days if there is a 29 February during the relevant period).
1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of the Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of the Agreement; it follows that a general concept or category utilised in the Agreement will not be limited by any specific examples or instances utilised in relation to such a concept or category.
This Agreement will come into force on the Effective Date and will continue in force indefinitely, unless and until terminated in accordance with Clause 14. Effects of Termination including Early Termination Charges due to termination prior to the Minimum Term will be in accordance with clause 15.
3. THE SERVICES
3.1 Zyber Limited:
(a) will deliver the Website as outlined in the Proposal;
(b) will facilitate the incorporation of the Website Content into the Website by the Customer;
(c) from the Implementation Date, will host the Website in the manner specified in the Proposal, and will make available the Resources for this purpose;
(d) may suspend some or all of the Services in order to carry out scheduled maintenance or repairs. Subject to this, Zyber Limited will use its best endeavours to maintain an acceptable Website availability level;
(e) will make available to the Customer the ability to update or amend the Website using a standard web browser;
(f) will make available, an online help facility for the purpose of providing support to the Customer (and Zyber Limited’s other customers). Zyber Limited will use reasonable endeavours to respond to requests for support within 2 Business Days;
(g) will make back-ups of the Customer’s Website Content on a daily basis;
(h) will at least once every 1 week, arrange for the off-site storage of a current back-up of the Customer’s Website Content (which will be over-written on the following off-site back-up date);
(i) will from time to time upgrade the Software Elements of the Website to provide greater service, security, and efficiency of the Website for the Customer;
(j) will provide Website Promotion, and Search Engine Optimisation (SEO) services as outlined in the proposal.
(k) will register and manage the Domain Name(s) as outlined in the Proposal on behalf of the Customer.
(l) will provide Website setup and configuration services as outlined in the proposal.
(m) will provide Website customisation and design as outlined in the proposal.
3.2 Zyber Limited will use reasonable endeavours to perform the Services in accordance with the timetable set out in the Proposal; however, Zyber Limited does not guarantee that that timetable will be met.
3.3 Zyber Limited will perform all Search Engine Optimisation Services to the best of its abilities as set out in the Proposal; however Zyber Limited cannot guarantee the position or inclusion of the Website within Search Engine rankings or results.
3.4 Where any or all of the Services above are not expressly outlined in the Proposal, they will not form part of the Agreement.
4. CUSTOMER OBLIGATIONS
4.1 The Customer will provide Zyber Limited with:
(a) such co-operation as is required by Zyber Limited (acting reasonably) to enable the performance by Zyber Limited of its obligations under the Agreement; and
(b) all information and documents required by Zyber Limited (acting reasonably) in connection with the provision of the Services.
4.2 The Customer will be responsible for procuring any third party co-operation reasonably required by Zyber Limited to enable Zyber Limited to fulfil its obligations under the Agreement.
4.3 The Services are provided to the Customer only, and the Customer may not resell the Services to any third party.
4.4 The Customer will be responsible for obtaining suitable licences of third party software (such as email client software) which are required for the full use of the Services.
4.5 It is the Customer’s responsibility to keep any passwords relating to the Services confidential, and to change such passwords on a regular basis. The Customer will notify Zyber Limited immediately if it becomes aware that a password relating to the Services is or may have been compromised or misused.
5. DELIVERY AND ACCEPTANCE
5.1 Zyber Limited will give the Customer notification in writing when the Website is ready for Website Content loading, and will provide the Customer access to the content management area of the Website for the purpose of Website Content loading, and acceptance testing. The Implementation Date will be deemed to be when this notification is given in accordance with clause 16.2.
5.2 Following the Implementation Date, the Customer will carry out acceptance tests to determine:
(a) whether the Website conforms in all material respects with the specification of the Website in the Proposal; and
(b) whether the Website has any Defects;
(the Acceptance Criteria).
5.3 If in the Customer’s reasonable opinion the Website meets the Acceptance Criteria, the Customer will send to Zyber Limited a written notice confirming acceptance of the Website.
5.4 If in the Customer’s reasonable opinion the Website does not meet the Acceptance Criteria, the Customer will send to Zyber Limited a written notice setting out in detail the respect(s) in which the Website does not meet the Acceptance Criteria.
5.5 If Zyber Limited (acting reasonably) agrees that the Website does not meet the Acceptance Criteria, Zyber Limited will have a further remedial period (of 30 Business Days) to modify the Website so that it meets the Acceptance Criteria.
5.6 The Website will be deemed to have been accepted by the Customer if the earlier of the following occurs:
(a) the Customer does not give any notice to Zyber Limited under either Clause 5.3 or Clause 5.4 within the Acceptance Period; or
(b) the Customer instructs Website Deployment to occur; or
(c) the Customer uses the Website for any purpose other than Website Content loading and/or testing.
6. THIRD PARTY WORKS
Any licence fees for Third Party Works will be payable by the Customer in addition to the Charges specified in the Proposal (unless the parties agree otherwise).
7. ACCEPTABLE USE
7.1 The Customer must not use the Website or any of the Services:
(a) to host, store, send, relay or process any Prohibited Content;
(b) for any purpose which is unlawful, fraudulent, or infringes any third party rights;
(c) in any way which may put Zyber Limited in breach of a contractual or other obligation owed by Zyber Limited to any internet service provider.
7.2 Zyber Limited reserves the right to remove content from the Website where it reasonably suspects such content is Prohibited Content.
7.3 The Website’s utilisation of Resources must not exceed the limits set out in the Proposal. If the Website’s utilisation of Resources exceeds those limits, the parties will endeavour to agree a variation to this Agreement. If the parties cannot agree such a variation within a reasonable period (being not more than 10 days) following notice from Zyber Limited to the Customer requesting such variation, and Resource utilisation continues to exceed those limits, the Customer will be deemed to be in material breach of this Agreement for the purposes of Clause 14.
7.4 The Customer acknowledges that Zyber Limited does not purport to monitor the content of the Website or the use of the Services.
7.5 Where Zyber Limited reasonably suspects that there has been a breach of the provisions of this Clause 7, Zyber Limited may suspend any or all of the Services and/or the Customer’s access to any or all Services while it investigates the matter.
7.6 Subject to Clause 7.3, any breach by the Customer of this Clause 7 will be deemed to be a material breach of this Agreement for the purposes of Clause 14.
7.7 The Customer will indemnify and will keep indemnified Zyber Limited against all damages, losses and expenses (including legal expenses) arising as a result of any breach by the Customer of this Clause 7, and any claim that the Website Content or Customer Works constitute Unlawful Content, or any legal proceedings relating to such a claim.
8. CHARGES AND PAYMENT
8.1 Zyber Limited will issue invoices for the Charges to the Customer from time to time in advance during the Term as set out in this Agreement.
(a) Before commencing the Zyber 5 Step Build Process a minimum of a 25% deposit is required. This deposit is non-refundable.
8.2 The Customer will pay the Charges to Zyber Limited within the earlier of:
(a) 7 days of the date of issue of an invoice issued in accordance with Clause 8.1; or
(b) on or before the relevant due date shown on invoice issued in accordance with Clause 8.1; or
(c) on or before the relevant due dates set out in the Proposal.
8.3 All Charges stated in or in relation to the Agreement are stated exclusive of GST, unless the context requires otherwise.
8.4 Charges must be paid in accordance with the terms of this Agreement and the Proposal.
8.5 If the Customer does not pay any amount properly due to Zyber Limited under or in connection with the Agreement, the Customer agrees that Zyber Limited may:
(a) charge the Customer interest on the overdue amount at the rate of 2.5% per month which interest will accrue daily until the date of actual payment and will be compounded monthly;
(b) refer the debt to Zyber Limited’s nominated debt collection agency;
(c) release the Customer’s details to Zyber Limited’s nominated credit reporting agency;
(d) claim all costs related to debt recovery from the Customer.
(e) restrict or cease provision of services to the Customer as outlined in the Agreement.
8.6 EziDebit Limited is the duly appointed agent to execute Direct Debit payments on behalf of Zyber Limited. Direct Debit Payments will be executed in the following manner:
(a) EziDebit Limited will charge the customer NZD $9.20 (exclusive of GST) for each failed, rejected, or dishonoured Direct Debit.
(b) After the second Direct Debit attempt fails for an individual payment, a final demand notification and a Direct Debit for the full balance outstanding amount will be attempted.
(c) In the event that 3 (three) consecutive attempts to debit the Customer account has failed, the debt will be referred to the receivable management company Credit Watch International Limited and/or its solicitors for collection and the Customer will be liable for all recovery costs as provided in the terms and conditions of the Direct Debit.
8.7 Charges for any applicable monthly running costs as outlined in this Agreement will begin at the Implementation Date.
8.8 Zyber Limited has the right to increase its fees and charges by providing the Customer 30 days notification of such an increase.
8.9 Unless otherwise specified, any website related recurring monthly charges (eg. Support Packages) will begin 8 weeks from the initial signing of the contract.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights in the Website Content, and Customer Works will, as between the parties, be the property of the Customer, subject always to the other terms of the Agreement.
9.2 All Intellectual Property Rights in the Design Elements will, as between the parties, be the property of Zyber Limited and, from the Deployment Date of the Website, Zyber Limited grants to the Customer a non-exclusive worldwide licence to use the Design Elements in connection with the Website, subject always to the other terms of the Agreement, and providing the Customer must not:
(a) sell, resell, rent, lease, supply, distribute or redistribute the Design Elements;
(b) use the Design Elements in connection with any website, web application, script, computer program or software (other than the Website); or
(c) alter or adapt or edit the Design Elements.
9.3 Design Elements created by Zyber Limited can be supplied to the Customer upon request and in an appropriate format as determined by Zyber Limited.
9.4 The Third Party Works will be either (at the option of Zyber Limited):
(a) supplied in accordance with the relevant licensor’s standard terms for online use;
(b) supplied on licence terms notified by Zyber Limited to the Customer;
(c) sub-licensed by Zyber Limited to the Customer on terms notified by Zyber Limited to the Customer.
9.5 Notwithstanding any other provision of the Agreement, the assignments and licences granted by Zyber Limited under the Agreement are subject to the payment by the Customer of all amounts owing to Zyber Limited in full and on time. In the event that the Customer owes any amount to Zyber Limited and fails to pay that amount to Zyber Limited within 14 days of receiving a notice:
(a) requiring it to do so; and
(b) specifying that the assignment will revert and the licences will terminate if the amount repays unpaid, then Zyber Limited may immediately revert the assignments and terminate the licences granted by Zyber Limited under the Agreement by giving written notice of reversion and termination to the Customer.
9.6 Subject to Clause 9.4, upon and following the termination of the Agreement, any licence granted by Zyber Limited to the Customer will continue notwithstanding termination, and this Clause 9 will continue to apply.
9.7 Zyber Limited may include a statement of credit together with a link to Zyber Limited’s website on each page of the Website in an unobtrusive position. The Customer will retain any such credit and link in any adapted version of the Website, and the Customer will (and will only) remove any such credit and link from the Website at Zyber Limited’s request.
9.8 The Customer grants to Zyber Limited a non-exclusive worldwide licence, under the Intellectual Property Rights in the Website, to use the Website for the purpose of marketing Zyber Limited’s services to third parties.
10.1 The Customer warrants to Zyber Limited that it has the legal right and authority to enter into and perform its obligations under the Agreement.
10.2 Zyber Limited warrants to the Customer:
(a) that it has the legal right and authority to enter into and perform its obligations under the Agreement; and
(b) that it will perform its obligations under the Agreement with reasonable care and skill; and
10.3 The Customer acknowledges that Zyber Limited has designed the Website to work with the most common and widely used version of Microsoft Internet Explorer, and Mozilla Firefox web browser technology at the Effective Date of this Agreement , and Zyber Limited does not warrant that the Website will work with any other web browser technology.
10.4 The Customer further acknowledges that Zyber Limited does not purport to provide any legal advice under the Agreement or in relation to the Website and Zyber Limited does not warrant that the Website will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.
10.5 All of the parties’ liabilities and obligations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
11. LIMITATIONS OF LIABILITY
11.1 Nothing in the Agreement will exclude or limit the liability of either party for:
(a) death or personal injury caused by that party’s negligence;
(b) fraud or fraudulent misrepresentation on the part of that party; or
(c) any other liability which may not be excluded or limited under applicable law.
11.2 Subject to Clause 11.1, Zyber Limited’s liability to the Customer under or in connection with the Agreement, any 3rd party agreement or contract, or any collateral contract, whether in contract or tort (including negligence), will be limited as follows:
(a) Zyber Limited will not be liable for any:
(i) loss of profits, income or anticipated savings,
(ii) loss or corruption of any data, database or software,
(iii) reputational damage or damage to goodwill;
(iv) loss of any commercial opportunity, or
(v) indirect, special or consequential loss or damage;
(b) Zyber Limited will not be liable for any losses arising out of a Force Majeure Event; and
(c) Zyber Limited’s liability in relation to any event or series of related events will in no circumstances exceed the greater of:
(i) NZD $5,000; and
(ii) the total amount paid (or, if greater, payable) by the Customer to Zyber Limited under the Agreement during the 12 month period immediately preceding the event or series of events.
12. PRIVACY OF DATA
12.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to Zyber Limited under the Agreement.
12.2 Zyber Limited warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by Zyber Limited on behalf of the Customer; and
(b) it will not disclose, sell, or release Personal Data to any third party unless otherwise outlined in this Agreement, or required to do so by law.
12.3 The Customer authorises Zyber Limited to disclose private information to credit reporting agencies from time to time for the purpose of determining credit worthiness, and managing the Customer’s account.
13. CONFIDENTIALITY AND PUBLICITY
13.1 The Customer will keep confidential the Confidential Information, and will not disclose that Confidential Information except as expressly permitted by this Clause 13.
13.2 The Customer will protect the confidentiality of the Confidential Information using at least reasonable security measures.
13.3 The Confidential Information may be disclosed by the Customer to its employees and professional advisers, provided that each recipient is legally bound to protect the confidentiality of the Confidential Information.
13.4 These obligations of confidentiality will not apply to Confidential Information that:
(a) has been published or is known to the public (other than as a result of a breach of the Agreement);
(b) is known to the Customer, and can be shown by the Customer to have been known to it, before disclosure by Zyber Limited; or
(c) is required to be disclosed by law, or by an order (binding upon the relevant party) of a governmental authority, a regulatory body or a stock exchange.
13.5 The Customer will not make any public disclosure relating to the subject matter of the Agreement (including press releases, public announcements and marketing materials) without the prior written consent of Zyber Limited.
14.1 Either party may terminate the Agreement at any time by giving at least 30 days written notice to the other party.
14.2 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:
(a) commits any material breach of any term of the Agreement, and:
(i) the breach is not remediable; or
(ii) the breach is remediable, but other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or
(b) fails to pay any amount due under the Agreement in full and on time.
(c) persistently breaches the terms of this Agreement.
14.3 Either party may terminate this Agreement immediately by giving written notice to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement);
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
15. EFFECTS OF TERMINATION
15.1 Upon termination all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 7, 8.5, 9, 10, 11, 13, 15, and 16.3 to 16.14.
15.2 Termination of the Agreement will not affect either party’s accrued rights (including Zyber Limited’s accrued rights to invoice and to be paid the Charges) as at the date of termination.
15.3 If the Agreement is terminated under Clause 14.1, or by the Customer under Clause 14.2 or 14.3 (but not in any other case):
(a) The Customer will not be supplied, and is not entitled to electronic copies of:
(i) the Software Elements;
(ii) the Design Elements;
(iii) the Third Party Works.
(b) Zyber Limited will provide such assistance as is reasonably requested by the Customer to enable the transfer of the Domain Name(s) to the Customer or another service provider, subject to payment of Zyber Limited’s reasonable expenses; and
(c) the Customer will be entitled to a refund of any Charges paid by the Customer to Zyber Limited in respect of any Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Charges to Zyber Limited (such amount to be calculated by Zyber Limited using any reasonable methodology).
15.4 Save as provided in Clause 15.3(c), the Customer will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to Zyber Limited.
15.5 If Early Termination occurs under the Agreement Early Termination Charges will be charged to the Customer as outlined in this Agreement and the Proposal.
16.1 Any notice given under the Agreement must be in writing (whether or not described as written notice in the Agreement) and must be delivered personally, sent by priority mail, or sent by fax or email, for the attention of the relevant person, and to the relevant address, fax number or email address given below (or as notified by one party to the other in accordance with this Clause).
The addressee, postal address, fax, and email address specified in this Agreement
16.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice sent by priority mail, 48 hours after posting; and
(c) where the notice sent by fax or email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
16.3 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
16.4 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
16.5 Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
16.6 The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
16.7 Zyber Limited may freely assign its rights and obligations under the Agreement without the Customer’s consent. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any rights or obligations under the Agreement.
16.8 Zyber Limited may subcontract any of its obligations under the Agreement to any third party without the Customer’s consent.
16.9 The Customer will not, without Zyber Limited’s prior written consent, either during the term of the Agreement or within 6 months after the date of effective termination of the Agreement, engage, employ or otherwise solicit for employment any employee or contractor of Zyber Limited who has been involved in the performance of the Agreement.
16.10 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under the Agreement.
16.11 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
16.12 The Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of the Agreement. Subject to Clause 11.1, each party acknowledges that no representations or promises not expressly contained in the Agreement have been made by or on behalf of the other party.
16.13 The Agreement will be governed by and construed in accordance with the laws of New Zealand and the courts of New Zealand will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
16.14 Zyber Limited may vary the terms of this agreement from time to time, and will do so by updating the online terms and conditions, and sending notification by email. Once notification has been given in accordance with clause 16.2 these new terms will be considered binding and enforceable under this Agreement.
16.15 The Customer authorises Zyber Limited to act as agent on the Customer’s behalf for all Domain Name(s) as outlined in the Proposal. Such authorisation is restricted to activities related to the registration and management of the Customer’s Domain Name(s), and may include (but is not limited to):
(a) submitting Service Requests to the Registrar on the Customer’s behalf, and dealing with the Registrar;
(b) entering into a contract with the Registrar on behalf of the Customer, in the form of the Domain Name Registration process;
(c) disclosure of personal information to the Registrar in order to accurately register and manage the Domain Name(s).