| These terms and conditions apply to any Services
that we agree to provide to you (including pursuant to a Proposal).
By engaging us to provide Services to you, you agree to be bound
by these terms and conditions.
Defined Terms and Interpretation
- In these terms and conditions:
"Charges" means our charges for the
provision of the Services;
"Content" means any data, information,
works, materials, documents, images, sound or video recordings,
computer code or other content that you provide to us
for incorporation into the Software or that you otherwise
provide to use for the purposes of us providing the Services;
"Development Services" means the Software
development, maintenance and/or support services that
we may agree to provide to you from time to time, including
pursuant to a Proposal;
"Hosting Services" means the website
and email hosting services that we may agree to provide
to you from time to time, including pursuant to a Proposal;
"Intellectual Property" means copyright,
patents, designs, trade marks, domain names, rights in
computer software and databases, confidential information
and all other intellectual property rights;
"Proposal" means our written proposal
setting out the terms and timeframe for the performance
of the Services;
"Services" means the Development Services,
the Hosting Services and any other services that we may
agree to provide to you from time to time (including attending
meetings with you, preparation of specifications and other
documentation and ad hoc phone support);
"Software" means programs, routines,
and symbolic languages that control the functioning of
the hardware of a computer and direct its operation which
are to be developed, maintained, supported and/or hosted
by us for you, as specified in the Proposal, or as otherwise
agreed in writing between you and us; (including, but
not limited to, Websites, applications programs, specialized
system programs, and operating system utilities);
"Specifications" means the technical
and functional requirements for the Software, as set out
in the Proposal, or as otherwise agreed in writing between
you and us;
"Standard Rates" means our standard
rates for the provision of the Services, as may be amended
by us from time to time. Our current standard rates are
available here [insert hyperlink to schedule of rates];
"Third Party Provider" means a person
other than us who provides products or services (including
those products or services which we provide to you in
the capacity of a reseller) used in the development, maintenance,
hosting, or operation of the Services or Software.
"we","us" or "our"
means Propel Limited;
"Website" means the website (or part
of the website) which is to be developed, maintained,
supported and/or hosted by us for you, as specified in
the Proposal, or as otherwise agreed in writing between
you and us;
"you" or "your" means
the person who has agreed to engage us to provide the
Unless the context indicates otherwise, references to
a "person" include a natural person,
company, corporation or unincorporated body of persons,
partnership, public or regional authority, a government,
and an agency of any government or of any such authority.
A reference to a "party" is a reference
to your or us (as applicable). References to the singular
include the plural and vice versa. References to "includes"
or "including" will be construed without
limiting the generality of the preceding statements.
- We will use reasonable endeavours to carry out the Development
Services at the time and in the manner set out in the Proposal
or as otherwise agreed in writing between you and us.
- We will use reasonable endeavours to complete the Development
Services within the timeframe specified in the Proposal
or as otherwise agreed in writing between you and us (but
will not be liable to you for any delays in developing,
maintaining, supporting and/or providing the Software to
- We may, without being required to obtain any further consent
from you, use subcontractors to provide some or all of the
Development Services, provided that the use of such subcontractors
will not relieve us of our obligation to provide the Development
Services to you.
- As between the parties, we will be responsible for ensuring
that we own or are otherwise entitled to use all software
tools, processes and packages required for performing the
Development Services, unless expressly stated otherwise
in the Proposal or unless otherwise agreed in writing between
you and us.
- Where the Development Services entail the development
of Software for you, then, once we have completed the Software
for you, we will provide you with:
- reasonable evidence that the Software complies with
the Specifications in all material respects; and
- an opportunity to carry out such testing as may be
reasonably required in order to confirm that the Software
complies with the Specifications in all material respects.
- You will confirm to us in writing when you are reasonably
satisfied that the Software complies with the Specifications
in all material respects (and you will not unreasonably
withhold or delay that confirmation). You will be deemed
to have accepted the Software, upon the earlier of:
- the date upon which you confirm to us in writing
that you are satisfied that the Software complies with
the Specifications in all material respects; or
- the date which is 7 days after the date on which
we advise you that the Software has been completed if
you have not previously advised us in writing (upon
reasonable grounds) that you are not satisfied that
the Software complies with the Specifications in all
- We warrant that, upon the completion of the Development
Services, the Software will comply with the Specifications
in all material respects.
- If at any time during the period of 30 days following
the date on which you accept the Software, you can reasonably
show that the Software does not materially comply with the
Specifications and where that failure to comply is able
to be replicated and demonstrated, we will (at our own cost)
remedy that failure as soon as reasonably possible after
you request us to do so. If we are unable to remedy the
relevant failure, we will refund to you a reasonable portion
of the Charges that you have paid to us for the Development
Services to reflect the reduction of value to you of the
Software due to the relevant failure. The remedies set out
in this clause 9 are your sole and exclusive remedy in respect
of any breach by us of the warranty set out in clause 8.
- We will use reasonable endeavours to provide the Hosting
Services for you.
- You will direct all hosting queries through Propel Ltd.
- We will use reasonable endeavours to procure the remedy
of any faults or problems that occur with any server(s)
or router(s) that we or a Third Party Provider use to provide
the Hosting Services. However, we do not warrant or guarantee
that the Hosting Services will be continuous or error free.
- For the avoidance of doubt, we are not responsible for
fixing faults or problems which occur:
- in your computer or communications equipment including
any software used or stored in them;
- in communications networks owned or controlled by
internet service providers (other than the Third Party
Provider resold to you by us) or telephone service providers;
- in anything else not forming part of the network of
the Third Party Provider resold to you by us;
- because you use the Services incorrectly; or
- because of any other event beyond our or the Third
Party Provider's reasonable control.
- Where you ask us to undertake any work relating to a problem
or fault which is caused by one of the matters set out in
clause 13(a) to 13(e) (inclusive), we reserve the right
to charge you, at our Standard Rates, for any time that
we spend undertaking such work (including for any work that
we undertake in determining or analysing the cause of the
problem or fault).
- You acknowledge and agree that in providing you the Hosting
Services we are doing so in the capacity as a reseller of
a Third Party Provider and that you agree to comply with
the Third Party Provider's terms and conditions (as may
be amended from time to time) in connection with your use
of the Hosting Services.
- You will be responsible for procuring and registering
any domain names that you wish to use in connection with
- You may cancel the Hosting Services at any time by written
notice to us. If you cancel the Hosting Services, we will
not have any obligation to refund to you any portion of
the Charges that you have paid (including by way of payment
in advance) for such Hosting Services. Such cancellation
shall not relieve you from any responsibility to pay any
Charges for Hosting Services that you have agreed to pay
to us but which, as at the date of such cancellation, have
not been paid to us:
- Linux hosting plan is to be paid 12 months in advance
and is non-refundable
- Windows hosting plan is to be paid at least 6 months
in advance and is refundable
- Setup fee is non-refundable for all plans
- Without limiting our rights under clause 30, we may discontinue
the provision of Hosting Services to you by giving you not
less than 30 days' prior notice of such discontinuation.
If we discontinue the Hosting Services, we will refund to
you such portion (if any) of the Charges that you have paid
in advance for the provision of Hosting Services after the
date of such discontinuation.
We reserve the right to change Third Party
Providers without prior notice to you (provided that this
action does not directly result in our inability or failure
to provide the Services to you.)
- You agree to provide us with such information, assistance
and instructions as we reasonably require in order to provide
- You agree not to use the Services for any unlawful purpose.
- You grant to us the right to use, modify, reproduce, publish,
host and distribute the Content for the purposes of providing
the Services to you.
- You warrant that you have all authorisations, rights and
licences necessary for you and us to use, modify, reproduce,
publish, host and distribute the Content in the manner contemplated
by these terms and conditions and/or the relevant Proposal,
and that the Content complies with all applicable laws and
does not contain any statement, representation, image, sound
or video recording, information or other content which:
- breaches the copyright, patent, trade mark, moral
rights or any other right (including any other Intellectual
Property rights) of any third party;
- is misleading, deceptive, obscene, defamatory, libellous,
discriminatory, unlawful, offensive, objectionable or
which promotes, or is able to be used for, any purpose
or activity of an illegal nature; or
- is or contains any virus, worm, Trojan horse, ad-ware,
spyware or any other form of malicious or undesirable
- Where the Content contains hyperlinks to another website
or you instruct us to include in the Software a hyperlink
to another website, you warrant that you have all necessary
rights to allow us to include such hyperlink in the Software.
- You will pay us the Charges in consideration for us performing
the Services. Unless otherwise agreed in writing between
you and us (including in a Proposal), the Charges will be
calculated on the basis of the Standard Rates. We may amend
our Standard Rates from time to time by providing not less
than 30 days' prior notice to you.
- All Charges and Standard Rates are stated exclusive of
GST and in New Zealand currency. You must pay GST at the
same time and in the same manner that you pay the Charges.
- We will provide you with a GST invoice for all Charges
payable to us. Each invoice that we issue to you for Charges
must be paid by you by the 25th of month following month
in which our invoice is issued to you.
- You are responsible for timely payment of the Charges
for Hosting services regardless of non-receipt or loss of
- If you fail to pay any amount due to us on the date that
payment is due:
- we will be entitled to impose, and you will be required
to pay, interest at a rate of 5% above the base lending
rate (as at the date payment is due) of our bankers
on all amounts that remain unpaid until full payment
is received; and
- you acknowledge that we may appoint a debt collection
agency to recover that amount (together with any interest
payable on that amount pursuant to clause 29(a)) and
we will be entitled to recover from you all costs incurred
by us in recovering that amount, including the fees
of the debt collection agency and all legal costs on
a solicitor and client basis;
- We reserve the right to immediately suspend or discontinue
(either in whole or in part, and temporarily or permanently,
as determined by us) any Development Services and/or Hosting
Services that we are providing to you if you fail to comply
with, or breach any warranty given by you under, these terms
and conditions (including any failure to pay any amount
to us by the due date). You acknowledge and agree that we
will not have any liability to you for any costs, losses
or damages that you incur due to the unavailability of the
Software as a consequence of our suspending the Development
and/or Hosting Services. You acknowledge and agree that
you will incur an additional setup fee for reinstatement
of any suspended or cancelled Services.
- Except as expressly provided for in these terms and conditions,
we exclude all representations, undertakings, warranties
and guarantees (whether express, implied or statutory) in
respect of the Services.
- We will not be liable to you (in contract, tort or otherwise)
- loss of data, loss of profits, loss of revenue, loss
of goodwill or loss of business or opportunity;
- indirect, consequential or special loss, damage, cost
suffered or incurred by you in connection with our performance
or non-performance of the Services or any failure by
us to comply with these terms and conditions.
- Our maximum aggregate liability to you in connection with
our performance or non-performance of the Services or any
failure by us to comply with these terms and conditions
will be limited to an amount equal to the Charges paid by
you to us in the 30 days immediately preceding the breach
or event giving rise to the relevant claim.
- If the Services are being provided to you for the purposes
of a business, you acknowledge that the Consumer Guarantees
Act 1993 will not apply to the supply of those Services.
- Each party ("First Party") will maintain as
confidential at all times, and will not at any time, directly
- disclose or permit to be disclosed to any person;
- use for itself; or
- use to the detriment of the other party;
any information disclosed to the First Party by the
other party on the express basis that such information
is confidential or which might reasonably be expected
by either party to be confidential in nature.
- Unless otherwise agreed in writing between you and us,
the following ownership arrangements for Intellectual Property
will apply, as between you and us:
- you (or your relevant licensors) will retain ownership
of the Intellectual Property rights in the Content;
- we (or our relevant licensors) will retain ownership
of the Intellectual Property rights in all tools, software
processes and procedures used by us in performing the
Services (and you will obtain no rights to those items
as a result of our performance of the Services); and
- we (or our relevant licensors) will own all Intellectual
Property rights in any data, designs, processes, information,
works, materials, documents, images, sound or video
recordings, computer code or other content created (collectively
"Works"), developed or created by us (or by
our relevant licensors), including any Works developed
or created by us in connection with the performance
of the Services, and that we supply to you as an output
of, or in connection with, the provision of the Services
- Subject to your compliance with these terms and conditions
and subject to you paying to us all Charges when due, we
grant to you (or will procure the grant of) a non-exclusive
and non-transferable licence to use the Supplied IP for
the purposes of operating the Software. If you fail to comply
with these terms and conditions or pay to us all Charges
when due, we may immediately revoke this licence by giving
you written notice of such revocation, in which case you
will immediately discontinue using, and return to us all
copies of, the Supplied IP.
- Unless otherwise agreed in writing between you and us,
the following terms apply to the non-exclusive and non-transferable
licence we provide to you pursuant to clause 37:
- AdminPro/ContentPro is licensed for use on one domain
(website) and must not be copied, modified, redistributed
or on sold in line with Copyright Act.
- Propel reserves the right to withdraw use of AdminPro/
ContentPro at anytime from customer and will give refund
of fees paid in advance if owing.
- All new software/data/design produced by Propel specifically
for customer remains property of Propel unless agreed
in writing prior to development. Payment of work done
constitutes a leasing agreement per Terms and Conditions.
- All new software/data/design produced by Propel specifically
for customer may be reproduced or transferred to other
hosting so long as it remains the property and is in
control of the customer.
- Propel reserves the right to deny use of software/data/design
produced for customer if outstanding fees and charges
have not been met by due date.
- Where the Supplied IP comprises any Works in which the
Intellectual Property Rights are owned by a third person,
you must comply with any third party licence terms, which
apply to such Works and which are made available to you.
- If any provision of these terms and conditions is or becomes
invalid or unenforceable, that provision will be deemed
deleted from these terms and conditions. The invalidity
or unenforceability of that provision will not affect the
other provisions of these terms and conditions, all of which
will remain in full force and effect to the extent permitted
by law, subject to any modifications made necessary by the
deletion of the invalid or unenforceable provision.
- We may amend these terms and conditions by notice to you
(which notice may be effected by placing amended terms and
conditions on our website).
- Nothing expressed or implied in these terms and conditions
constitutes either party as the partner, agent, employee
or officer of, or as a joint venturer with, the other party.
Neither party will make any contrary representation to any
- You may not assign or transfer any of your rights or obligations
under these terms and conditions (or otherwise in connection
with the Services) to any other person without our prior
written consent (which consent will not be unreasonably
- We will not be liable to you for any act, omission or
failure by us under or in connection with these terms and
conditions or in relation to the Services if that act, omission
or failure results directly from an event or circumstances
beyond our reasonable control.
- These terms and conditions are governed by the laws of
New Zealand. The parties submit to the exclusive jurisdiction
of the New Zealand courts in respect of all matters relating
to this Agreement.