Acceptance of Terms1. Project terms
As noted via your engagement letter.
2.1 These terms and conditions govern all supply of goods and services ("Products", "Service" or "Projects") by MYF Group Ltd (NZBN 9429046330185) ("Fixinc", "we, "us", "me") to you (the client), the purchaser of goods and services from us, including your use of the website at www.fixinc.org ("the website"). They are effective from 20th day of March, 2020 and will replace all earlier MYF Group Ltd or Fixinc terms of trade ("Contract") and any conditions contained in any document used by you and purporting to have contractual effect.
2.2 We reserve the right to change these terms of trade by notice to you. Notice may be given by posting the revised terms and conditions on our website or via email.
2.3 To make a purchase of our services, you must be 18 years of age or over.
2.4 Purchases from us may only be made by persons who are acquiring goods or services for their own use or consumption, and you must not acquire goods from us via the website for resupply (whether in trade or otherwise).
2.5 If you are purchasing on behalf of another entity such as a company you warrant you have the authorisation to agree to these terms and conditions on behalf of the entity. By accepting your proposal document or Engagement scope ("Engagement") you agree that you are authorised to engage Fixinc in the project.
3.1 The Services shall commence on the date notified to you by Fixinc (or as otherwise agreed by the parties) and, subject to earlier termination in accordance with these terms, shall continue until terminated by either party on no less than 30 days written notice to the other party.
4. Performance of the Services
4.1 Fixinc will provide the Services with skill and care and in accordance with good industry practice.
4.2 Fixinc may utilise the services of a third party cloud provider to provide some or all of the Services on its behalf ("Third Party Supplier"), for example Google Application Suite, or the Rocketspark CMS.
4.3 Fixinc (and/or its Third Party Suppliers) will need to perform regular upgrades, updates and maintenance on server applications. These upgrades, updates and maintenance may require us to update or upgrade your project to be compatible with new versions where applicable. You agree to take full responsibility for assisting in providing information where applicable to assist in these updates.
4.4 Despite any other term of your Contract, you agree that Fixinc will not be responsible or liable to you for any interruption to (or defect or malfunction in) the Services to the extent those interruptions, defects or malfunctions were caused or contributed to by a Third Party Supplier or any upgrades, updates and maintenance undertaken by Fixinc and/or any of its Third Party Suppliers. This may be issues with CMS providers, Google or similar.
4.5 You must provide Fixinc (and, if applicable, Third Party Suppliers) with access to your facilities, systems and personnel as required by Fixinc to provide the Services. You must also ensure that all the information and materials you provide to Fixinc are accurate, complete and up to date, and that their use by Fixinc (or any Third Party Supplier) will not breach the rights (including the intellectual property rights and privacy) of any person involved in the project you are contracting.
5. Use of the Services
5.1 In connection with your use of the Service (and your website), you must (and you must ensure that your employees and other contractors):
5.1.1 comply with the instructions and directions of Fixinc;
5.1.2 comply with Fixinc's fair use policy, which requires your use of the Services to be fair, reasonable and not excessive (as determined by Fixinc with reference to usage by other users);
5.1.3 comply with all laws (including all applicable privacy and data protections laws);
5.1.4 not post or transmit any unlawful, threatening, abusive, libellous, defamatory, obscene, offensive or objectionable material of any kind or any unsolicited advertising material, or otherwise undertake any action (or post any material) that may infringe the rights (including the intellectual property rights or privacy) of any person.
5.2 Without limiting its other rights, if Fixinc considers that your use of the Services is (or is likely to be) in breach of any of the matters speciﬁed in clause 5.1, Fixinc may immediately suspend the provision of the Services, terminate your Contract, and/or perform any other action that it considers necessary to prevent your website from breaching any law or impacting other customers and/or the server system as a whole with no compensation.
5.3 You (the Client) have the right to cancel your campaign or project and order within 7 days only or before signing of the campaign contract.
5.4 Failure to make notice to Fixinc will result in a deduction of 20% admin costs of the products for the return of payment not including any bank transfer fees.
5.5 We do not have to provide a refund if you have changed your mind about a particular physical purchase already released for delivery or a Service already started, so please choose carefully. If the goods are faulty or the Service deemed inadequate to requirements, Fixinc will meet its obligation under the Consumer Guarantees Act to provide a remedy.
6. Liability Limitation
6.1 Where you acquire or hold yourself out as acquiring goods or services from us for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 will not apply. The conditions, warranties and guarantees set out in the Sale of Goods Act 1908 or otherwise implied by statute or common law will not apply and are excluded from these terms of trade.
6.2 We will always endeavour to have complete and accurate information on our website but to the greatest extent permissible by law we assume no responsibility for the completeness and current accuracy of the information provided on our website.
6.3 To the greatest extent permissible by law, we exclude all liability we may have to you for any claim except where we have acted in bad faith. This exclusion also applies for the benefit of every officer, employee, contractor, agent of us and anyone else we use to perform our duties or provide services under any agreement you have with us. None of the persons specified above is liable or has to pay you for anything else in connection with or resulting from anything any of us does or does not do, or delays in doing, whether or not it is contemplated or authorised by any agreement you have with us. This exclusion applies whatever you are claiming for and in whatever way liability might arise. This exclusion does not limit any inalienable rights you may have under the Consumer Guarantees Act 1993.
6.4 Our maximum liability to you (if any) shall be limited to the value of any faulty products or services supplied by us and we, our employees, contractors and agents, will not be liable to you for loss or damage of any kind however that loss or damage is caused or arises.
6.1 You acknowledge that, as a consequence of Fixinc's use of Third Party Suppliers, your website data may be accessed by third parties (as necessary for such third parties to perform the relevant services for Fixinc) and may be hosted outside of New Zealand. For example, the use of Google Analytics.
6.2 Although Fixinc and/or its Third Party Suppliers will undertake some regular database backups and reviews of our Service, you are solely responsible for the security and back-up of all of your data and Fixinc recommends that you keep full and up-to-date copies of your data. This may include drafting documents, wording or imagery.
7. Price and payment
7.1 You will pay to Fixinc the invoice total shared with you by us for the Services, plus New Zealand goods and services tax ("GST") and any other applicable taxes assessed or levied in respect of the Services. The Project Fees will be payable by you in advance, commencing on the date noted on the invoice. You understand that other payments may be required by third-party suppliers outside of this proposal and Services. All prices are correct when published. We reserve the right to alter prices at any time.
7.1.1 All prices are in New Zealand dollar.
7.2 Fixinc may amend the Service Fees to apply from each anniversary of the Services start date and shall provide you with 30 days' notice of such amended Hosting Fees. Fixinc has no control of third-party fees increasing and advise you to seek more information on this where applicable.
7.3 Fixinc may suspend the Services if you fail to pay any amount by the relevant due date for payment.
7.4 Fixinc will charge you interest at 10% per month calculated on a daily basis on any late payments from the date payment is due until the date payment is received by Fixinc.
7.5 We accept credit card payments, Paypal, and bank transfer. You must accept our payment gateways terms of service before making a transaction payment. You can find these via Stripe, PayPal and ASB New Zealand. Fixinc is not responsible for the service and maintenance of these platforms. Any failures in payment or system must be communicated with the relevant party and/or supplier.
8. Fixinc warranties
8.1 All projects are subject to the availability of those products or services and a schedule will be communicated with you prior to commencement. If for any reason a Product or service is not available, we will endeavour to notify the non-availability to arrange a more suitable date.
8.2 Fixinc will use its reasonable endeavours to make the Services available on a 24 hour a day, seven day per week basis, subject to server upgrades, maintenance (whether scheduled or unscheduled), and access to systems.
8.3 Other than the warranty in clause 8.1, to the fullest extent permissible at law, any warranties, conditions, representations or guarantees (express or implied), including implied warranties, guarantees or conditions of merchantability and/or ﬁtness for a particular purpose, are excluded and Fixinc shall have no liability to you for anything, other than a breach by Fixinc of an express provision of this Contract.
8.4 As you are acquiring the Services in "trade" (as deﬁned in the Consumer Guarantees Act 1993), the provisions of that Act will not apply to the Services.
8.5 In the event of a breach of the warranty in clause 8.1, Fixinc will (at its own cost) use its reasonable endeavours to remedy the failure within a reasonable period. However, Fixinc will not be liable to remedy:
8.5.1 if the failure was caused or contributed to by any Third Party Supplier (or its services or systems) or any matter or circumstances outside of the reasonable control of Fixinc;
8.5.2 if a breach by you of your Contract (or any negligent or unlawful act or omission by you or any of your employees or other contractors) has caused or contributed to the failure;
8.5.3 if the Website, tools or software has not been maintained or used in accordance with the directions of Fixinc or otherwise in a proper and diligent manner; or 8.4.4 for so long as you are in default in relation to any obligation (including as to payment) under your Contract. The obligation to rectify under this clause 8.4 shall be your sole remedy in respect of any interruptions, malfunctions, defects or failures in the Service.
9.1 Either party may terminate your Contract by providing 30 days written notice to the other.
9.2 Fixinc may terminate your Contract immediately on notice to you:
9.2.1 if any changes to Fixinc's arrangements with its Third Party Suppliers result in Fixinc being unable to perform the Services for you in accordance with your Contract; or
9.2.2 pursuant to clause 5.2.
9.3 If either party:
9.3.1 breaches a material term of your Contract (which would include your failure to make payment any amounts under this Contract by the due date for payment) and fails to remedy such breach within 10 working days of receiving notice from the other party of such breach; or
9.3.2 enters into any composition or arrangement with its creditors or does any act which would render it liable to be wound up or if a resolution is passed or proceedings commenced for its winding up or if a receiver is appointed in respect of all or any of its assets, the other party may terminate your Contract on notice with immediate effect. On termination or expiry of your Contract:
9.3.3 Each party shall return all property and conﬁdential information of the other. However, you acknowledge that Fixinc (and its Third Party Suppliers) may maintain copies of your data ﬁles and records used to complete your project for archival purposes.
9.3.4 All amounts outstanding will be immediately due and payable. However, you will not be eligible to receive a refund of any Service or Hosting Fees or third-party fees outside of Fixinc's reasonable control, paid in advance in respect of the period following termination, unless your Contract has been terminated pursuant to clause 8.2.1.
9.4 You must refund Fixinc for all costs and expenses incurred by Fixinc in the recovery or attempted recovery of outstanding moneys and enforcement of your Contract.
10.1 Except to the extent liability cannot be limited by law, the total liability of Fixinc for any loss arising from any defect or non-compliance of the Services or any other breach by Fixinc of its obligations under or in connection with your Contract will not in any circumstances exceed the Proposal Fees paid during the Initial Term.
10.2 Despite any other term in your Contract, Fixinc will not be liable to you for any loss of proﬁts, loss of, damage to or corruption of data, loss of income or revenue or any consequential, indirect or special damage or damage or injury of any kind suffered by you or any of your employees income or revenue or any consequential, indirect or special damage or damage or injury of any kind suffered by you or any of your employees or representatives.
10.3 You agree to indemnify Fixinc for any loss, liability, costs, damage or claim suffered or incurred by Fixinc as a result of your misuse of the Services, your breach of your Contract, or any negligent or unlawful act or omission of you, your employees or other contractors.
11. Intellectual Property
11.1 Intellectual property means any patent, design, trade mark, copyright, know-how, trade secret, conﬁdential information and any other proprietary right or form of intellectual property (whether protectable by registration or not) in respect of any technology, concept, idea, data, documentation, written material, program or other software (including, without limitation, in source and object codes), speciﬁcation, formula, drawing, program, design, system, process, business name, trade name, trade mark, service mark, logo, mark, style or other matter or thing, existing or conceived, used, developed or produced by any person or used in relation to such technologies which is not already available in the public domain.
11.2 Any Intellectual Property owned or licensed by a party at the commencement of the Services (or developed by a party outside of your Contract), including any enhancements, developments, modiﬁcations or adaptations of such Intellectual
Property (Existing IP) will remain the sole and exclusive property of that party or its licensees. You grant to Fixinc a license to access and use your Existing IP as necessary to perform its obligations under your Contract and within the scope of the Services.
13. Applicable law and jurisdiction
13.1 Unless we otherwise agree in writing, this agreement contains all the terms of our relationship and continues to apply no matter where you are located at the time any goods or services are provided to you by us and irrespective of the location where you reside.
13.2 Use of our website, supply of products or services by us to you and any other matter arising from these Terms and Conditions are subject to the laws of New Zealand. The Courts of New Zealand shall have non-exclusive jurisdiction over all claims or disputes arising in relation to, out of or in connection with these terms of trade, or with the use of the website or supply of any services.
13.3 Where you or any other person who you act for, or who you permit to act for you supplies incorrect information for the purchase of a product or service and we incur cost in any matter concerning that name then we may recover the costs incurred by us from you (including legal costs on a solicitor-client basis).
13.4 You agree to use our website, products and services in accordance with the applicable laws of the country or countries where your business or organisation is based.
14.1 Fixinc is insured for public liability and general liability to perform the Services promoted and set out either via the Fixinc website or otherwise stated.
14.2 You agree that you or the parties you are acting on behalf of have the relevant and required insurance to be able to engage with subcontractors and New Zealand Limited companies. Failure to have adequate insurance may result in you paying full costs and liability for any acts or errors at your fault.
12.1 To the extent any information is provided by Fixinc or a Third Party Supplier to you, you must keep that information conﬁdential, unless disclosure is required by law or otherwise consented to by Fixinc.
12.2 You consent to the use of your name (and logo, if applicable) by Fixinc in any future marketing campaign or advertisement of Fixinc services within reasonable means. (including by displaying portfolio work on Fixinc's website and social media).
12.3 Neither party will be liable for any delay or for any failure to fulfill its obligations under your Contract (except with respect to any payment obligations) if the failure or delay arises directly or indirectly from or as a consequence of any cause or circumstance beyond the reasonable control of that party.
12.4 The parties agree to use their best endeavours to promptly resolve any dispute or difference between them by way of good faith negotiations. Fixinc may, at its option, require you to submit to mediation with assistance of a qualiﬁed mediator if good faith negotiations do not resolve the dispute within a reasonable period.
12. 5 We may disclose your personal information as required by law.
Where you have provided information to us on a confidential basis, we will hold that information in confidence, except as required by law. We cannot guarantee that our website is secure, and we cannot be held responsible for a breach of our website security that is beyond our control.
You can request details of your personal information that we hold, and ask us to correct it, at any time.
12.6 You must not assign your rights or transfer your obligations under your Contract.
12.7 Your Contract is governed by and construed in accordance with the laws in force in New Zealand.