1.1 – “Kiwi Creative Studios” or “Kiwi Creative Studios Creative” shall mean Kiwi Creative Studios, its successors and assigns or any person acting on behalf of and with the authority of Kiwi Creative Studios.
1.2 – “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Kiwi Creative Studios to the Client.
1.3 – “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 – “Goods” shall mean Goods supplied by Kiwi Creative Studios to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Kiwi Creative Studios to the Client.
1.5 – “Services” shall mean all Services supplied and Services rendered by Kiwi Creative Studios to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 – “Price” shall mean the price payable for the services or goods as agreed between Kiwi Creative Studios and the Client in accordance with clause 3 of this contract.
2. Acceptance / Engagement
2.1- Any instructions received by Kiwi Creative Studios from the Client for the supply of services or goods and/or the Client’s acceptance of services or goods supplied by Kiwi Creative Studios shall constitute acceptance of the terms and conditions contained herein.
2.2- Any payment and/or deposit received by Kiwi Creative Studios from the Client for the supply of services or goods and/or the Client’s acceptance of services or goods supplied by Kiwi Creative Studios shall constitute acceptance of the terms and conditions contained herein.
2.3 – Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.4 – Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Kiwi Creative Studios.
2.5 – The Client shall give Kiwi Creative Studios not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, contact details, or business practice).
3. Price And Payment
3.1 – At Kiwi Creative Studios sole discretion the Price shall be either:
(a) as indicated on invoices provided by Kiwi Creative Studios to the Client in respect of services or goods supplied; or
(b) Kiwi Creative Studios’ quoted Price (subject to clause 3.2) which shall be binding for thirty (30) days.
3.2 – Kiwi Creative Studios reserves the right to change the Price in the event of a variation to Kiwi Creative Studios’ quotation.
3.3 – At Kiwi Creative Studios’ sole discretion a 50% non-refundable deposit may be required.
3.4 – At Kiwi Creative Studios’ sole discretion:
(a) payment shall be due prior to delivery of the services or goods; or
(b) payment for approved Clients shall be made by instalments in accordance with Kiwi Creative Studios’ payment schedule.
3.5 – Time for payment for the services or goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.6 – Payment will be made by cash, credit card, paypal, by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and Kiwi Creative Studios.
3.7 – GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
3.8 – Deposits paid to Kiwi Creative Studios are non-refundable.
4. Delivery Of Services and Goods
4.1 – At Kiwi Creative Studios’ sole discretion delivery of the services or goods shall take place when:
(a) the Client takes possession of the services or goods at/on Kiwi Creative Studios’ address/server/email/social-media/hosting; or
(b) the Client takes possession of the services or goods at/on the Client’s nominated address/server/email/social-media/hosting (in the event that the services or goods are delivered by Kiwi Creative Studios or Kiwi Creative Studios’ nominated carrier).
(c) the Client provides full and complete payment.
4.2- At Kiwi Creative Studios’ sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Client’s account.
4.3 – The Client shall make all arrangements necessary to take delivery of the services or goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the services or goods as arranged then Kiwi Creative Studios’ shall be entitled to charge a reasonable fee for redelivery.
4.4 – Delivery of the services or goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.5 – The failure of Kiwi Creative Studios to deliver shall not entitle either party to treat this contract as repudiated.
4.6 – Kiwi Creative Studios shall not be liable for any loss or damage whatever due to failure by Kiwi Creative Studios to deliver the services or goods (or any of them) promptly or at all.
5. Content Of Websites, Applications And Undertakings
5.1 – The Client is solely responsible for the content of the website or application. Kiwi Creative Studios is not responsible for proofreading any content unless specifically agreed in writing. Any spelling errors will be the sole responsibility of the client.
5.2 – Kiwi Creative Studios makes no representations to the Client on the functionality or content of the website or application.
5.3 – The Client is solely responsible for dealings with persons accessing the data or website and the Client warrants that they will not refer complaints or inquiries to such data to Kiwi Creative Studios.
6. Web Hosting
6.1- If the Client selects to organise their own web hosting arrangements, final exported sites will be uploaded to your preferred host company or supplied on data storage device as per the quoted price. Construction files of the site can supplied on request and at Kiwi Creative Studios’ sole discretion may incur a fee.
6.2- Kiwi Creative Studios accepts no responsibility for down times, delays, breakdowns or data loss caused by Internet Service Providers.
7.1- If Kiwi Creative Studios retains ownership of the services or goods nonetheless, all risk for the services or goods passes to the Client on delivery.
8.1 – Kiwi Creative Studios and Client agree that ownership and intellectual property of the services or goods shall not pass until:
(a) the Client has paid Kiwi Creative Studios all amounts owing for the particular services or goods; and
(b) the Client has met all other obligations due by the Client to Kiwi Creative Studios in respect of all contracts between Kiwi Creative Studios and the Client.
8.2 – Receipt by Kiwi Creative Studios of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Kiwi Creative Studios’ ownership or rights in respect of the services or goods shall continue.
8.3 – It is further agreed that:
(a) where practicable the services or goods shall be kept separate and identifiable until Kiwi Creative Studios shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the services or goods shall pass from Kiwi Creative Studios to the Client Kiwi Creative Studios may give notice in writing to the Client to return the services or goods or any of them to Kiwi Creative Studios. Upon such notice the rights of the Client to obtain ownership or any other interest in the services or goods shall cease; and
(c) Kiwi Creative Studios shall have the right of stopping the services or goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the services or goods to Kiwi Creative Studios then Kiwi Creative Studios or Kiwi Creative Studios’ agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the services or goods are situated and take possession of the services or goods; and
(e) the Client is only a bailee of the Goods and until such time as Kiwi Creative Studios has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the services or goods on trust for Kiwi Creative Studios; and
(f) the Client shall not deal with the money of Kiwi Creative Studios in any way which may be adverse to Kiwi Creative Studios; and
(g) the Client shall not charge the services or goods in any way nor grant nor otherwise give any interest in the services or goods while they remain the property of Kiwi Creative Studios; and
(h) Kiwi Creative Studios can issue proceedings to recover the Price of the services or goods sold notwithstanding that ownership of the services or goods may not have passed to the Client; and
(i) until such time that ownership in the services or goods passes to the Client, if the services or goods are converted into other products, the parties agree that Kiwi Creative Studios will be the owner of the end products.
9. Client’s Disclaimer
9.1- The Client hereby disclaims any right to rescind, or cancel any contract with Kiwi Creative Studios or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by Kiwi Creative Studios and the Client acknowledges that the services or goods are bought relying solely upon the Client’s skill and judgement.
10.1- The Client shall inspect the services or goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Kiwi Creative Studios of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Kiwi Creative Studios an opportunity to inspect the services or goods within a reasonable time following delivery if the Client believes the services or goods are defective in any way. If the Client shall fail to comply with these provisions the services or goods shall be presumed to be free from any defect or damage. For defective services or goods, which Kiwi Creative Studios has agreed in writing that the Client is entitled to reject, Kiwi Creative Studios’ liability is limited to either (at Kiwi Creative Studios’ discretion) replacing the services or goods or repairing the Goods.
10.2- Services or goods will not be accepted for return other than in accordance with 10.1 above.
11.1- Subject to the conditions of warranty set out in clause
11.2 Kiwi Creative Studios warrants that if any defect in any workmanship of the website or application provided by Kiwi Creative Studios becomes apparent and is reported to Kiwi Creative Studios within one (1) month of the date of delivery (time being of the essence) then Kiwi Creative Studios will either (at Kiwi Creative Studios’ sole discretion) replace or remedy the workmanship.
11.2- The conditions applicable to the warranty given by clause are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any services or goods; or
(i) failure on the part of the Client to properly maintain (ii) failure on the part of the Client to follow any instructions or guidelines provided by Kiwi Creative Studios; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or natural disaster.
(b) the warranty shall cease and Kiwi Creative Studios shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Kiwi Creative Studios’ consent.
(c) in respect of all claims Kiwi Creative Studios shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
12. Intellectual Property
12.1 – Where photos are purchased by Kiwi Creative Studios from a third party for the use for either print or web it is the responsibility of the client to alert Kiwi Creative Studios Creative when the license falls due/expires and they are responsible for renewing this license and all fees associated with this renewal whether past or future. Kiwi Creative Studios takes no responsibility for renewal of these images once they have expired.
12.2 – The Client warrants that all designs or instructions to Kiwi Creative Studios will not cause Kiwi Creative Studios to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Kiwi Creative Studios against any action taken by a third party against Kiwi Creative Studios in respect of any such infringement.
13. Default & Consequences of Default
13.1- If the Client defaults in payment of any invoice when due, the Client shall indemnify Kiwi Creative Studios from and against all costs and disbursements incurred by Kiwi Creative Studios in pursuing the debt including legal costs on a solicitor and own client basis and Kiwi Creative Studios’ collection agency costs.
13.2 – Without prejudice to any other remedies Kiwi Creative Studios may have, if at any time the Client is in breach of any obligation (including those relating to payment), Kiwi Creative Studios may suspend or terminate the supply of services or goods to the Client and any of its other obligations under the terms and conditions. Kiwi Creative Studios will not be liable to the Client for any loss or damage the Client suffers because Kiwi Creative Studios has exercised its rights under this clause.
13.3 – Without prejudice to Kiwi Creative Studios’ other remedies at law Kiwi Creative Studios shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Kiwi Creative Studios shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Kiwi Creative Studios becomes overdue, or in Kiwi Creative Studios’ opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
13.4 – Kiwi Creative Studios retains the right to add a link on any website it designs and builds with its wording at Kiwi Creative Studios discretion with the link back to the Kiwi Creative Studios home page.
14. Suspension Of Services
14.1 – Kiwi Creative Studios reserves the right to suspend services or goods in any case where the Client fails to perform their obligations under this and any associated agreements, including but not limited to the suspension of the Client’s websites.
15.1 – Kiwi Creative Studios may discontinue services or goods if an amount payable to Kiwi Creative Studios is overdue or take down a website or application permanently in any case where an amount payable is overdue by more than 30 days. In any such event, you remain liable for the total cost of the contract including all disbursements; unless otherwise agreed between the parties. Furthermore, Kiwi Creative Studios will not refund ( in part or in whole) any deposits received for the commencement of work, under any circumstances unless agreed firstly in writing by Kiwi Creative Studios. Kiwi Creative Studios reserves the right to keep all funds from the deposit if work on a job has commenced and is terminated by either party. Kiwi Creative Studios shall not be liable for any loss or damage whatever arising from such cancellation.
15.2 – In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Kiwi Creative Studios (including, but not limited to, any loss of profits) up to the time of cancellation.
16. Privacy Act 2020
16.1 The Customer and the Guarantor/s (if separate to the Customer) authorises the Seller to:
(a) collect, retain and use any information about the Customer, for the purpose of assessing the Customers creditworthiness or marketing products and services; and
(b) to disclose information about the Customer, whether collected by the Seller from the Customer directly or obtained by the Seller from any other source, to any other credit provider or any legal or credit reporting agency for the purposes of providing or obtaining a credit reference, legal or debt collection or notifying a default by the Customer.
16.2 Where the Customer is a natural person the authorities under (clause 16.1) are authorities or consents for the purposes of the Privacy Act 2020.
16.3 The Customer shall have the right to request the Seller for a copy of the information about the Customer retained by the Seller and the right to request the Seller to correct any incorrect Information about the Customer held by the Seller.
17.1 – If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 – These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
17.3 – Kiwi Creative Studios shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Kiwi Creative Studios of these terms and conditions.
17.4 – The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by Kiwi Creative Studios.
17.5 – Kiwi Creative Studios may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.6 – Kiwi Creative Studios reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Kiwi Creative Studios notifies the Client of such change.
17.7 – Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
17.8 – The failure by Kiwi Creative Studios to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Kiwi Creative Studios’ right to subsequently enforce that provision.
17.9 – All prices quoted are valid for 30 days only from the date of written quotation.
17.10 – If the client has made no contact with Kiwi Creative Studios office for a period of more than 1 month after the project and or any design work has commenced, Kiwi Creative Studios reserves the right to reqoute the entire project.
17.11 – If any project exceeds a period of more than 6 months, Kiwi Creative Studios reserves the right to terminate the project at its own discretion, without any refunds being paid to the client.
18. The use of Kiwi Creative Studios for a SEO service is at the Customer’s own risk.
The Customer acknowledges that Kiwi Creative Studios makes no warranty that a search engine optimisation will lead to or improve any increase in sales, profits or any other form of improvement for the Customer’s business or any other purpose
To the fullest extent permissible by law, Kiwi Creative Studios shall not be liable to the Customer for any damages, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of profits or goodwill or loss of use of facilities or equipment), or any other damages arising whether arising from the negligence of Kiwi Creative Studios or otherwise. Where liability cannot be legally excluded, the liability of Kiwi Creative Studios shall be limited to the cost of supplying the service again.
The Customer agrees to indemnify Kiwi Creative Studios for any third party claim for damages arising out of or in any way connected with the supply of services to the Customer, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of profits or goodwill or loss of use of facilities or equipment), or any other damages arising whether arising from the negligence of Kiwi Creative Studios or otherwise
The Customer expressly agree to indemnify and hold harmless Kiwi Creative Studios, its subsidiaries, affiliates, officers, agents and other partners and its and their respective employees from and against all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable lawyer fees and disbursements and court costs) arising from or in connection with the Customer’s information, the Customer’s use of Kiwi Creative Studios search engine optimisation services.
Kiwi Creative Studios does not refund any money received from clients for any past SEO work that they have been asked to carry out. All monies received by Kiwi Creative Studios for any SEO work will not be refunded at any stage even if the client cancels the SEO service.
19. Client Responsibilities and Obligations:
You must follow all instructions provided by Kiwi Creative Studios and provide to Kiwi Creative Studios, in a timely manner, all information and materials requested by Kiwi Creative Studios.
Kiwi Creative Studios will request feedback and changes at certain stages of undertaking the process of designing and developing your website or application. These changes and amends must be sent to Kiwi Creative Studios in a timely manner. Sending excessive or multiple emails may cause important details to be missed and may result in you incurring additional charges.
As soon as your website or application is uploaded and made live online or handed over to you, any further work or changes will result in you incurring additional costs, unless otherwise specified.
20. Project Timelines:
Kiwi Creative Studios will provide you with an estimate that your website or application can be designed and built.
This time frame is an estimation only.
You must make every effort to follow the instructions provided by Kiwi Creative Studios and provide the required information to Kiwi Creative Studios in order to facilitate delivery times and correct specifications.
Delays in providing the required information to Kiwi Creative Studios may result in delays in product delivery.
Kiwi Creative Studios will make all reasonable efforts to provide the product by the estimated date but do not accept liability for any costs incurred, loss or damage (including consequential loss or damage) compensation or loss of earnings due to any failure to meet agreed deadlines.
If you require Kiwi Creative Studios to make changes to your website or application after it is handed over to you, you will be required to pay for this work at an agreed quoted fee or our hourly rate. All work must be paid for upfront.
21. Content + Design Restrictions
Kiwi Creative Studios include a “fair” and “reasonable” set number of rounds of changes (3 rounds) during its website or application design + development phase. Any extra changes required by you may incur additional costs and such extra changes can be purchased during the sales process.
Changes must be submitted in one email and one email of changes (within the scope of the project) is considered one round of changes. Unless agreed to at the beginning of the project.
Please ensure that you limit your changes to comply with the agreed specifications. Failure to do this may result in you incurring additional costs.
22. Suspension of Services:
Kiwi Creative Studios reserves the right to suspend/cancel any or all services or goods provided to you, if:–
You have any outstanding invoices or accounts;
Your account is in dispute or the subject of a dispute resolution procedure, court order, judgment, finding or determination;
You fail to comply with any provision of these terms and conditions or any other policy, directive or requirement notified to you by Kiwi Creative Studios.
If you have not paid for the hosting of your website( which Kiwi Creative Studios has paid for on your behalf) Kiwi Creative Studios reserves the right to terminate your hosting. Hosting will only resume once invoices have been paid. If the customer’s website has been terminated due to cancellation of hosting, Kiwi Creative Studios Creative can reinstall the website at a cost of $360 + GST providing the client has a backup of the website if available.
23. Refund Policy
Once we have commenced work on your project no refund is available on the deposit paid for your project. Work may include, but is not limited to; contact between yourself and an Account Manager and/or designer from Kiwi Creative Studios, the commencement of designs/wireframes/concepts/prototypes by Kiwi Creative Studios Creative for your project, the commencement of design concepts by Kiwi Creative Studios Creative for your project and other work undertaken by Kiwi Creative Studios in relation to your project.
24. Browser Compatibility:
Kiwi Creative Studios will make every effort to ensure websites are designed to be viewed by the majority of visitors. Websites are designed to work with the main browsers Google Chrome, Safari and Mozilla Firefox latest releases. You understand that we cannot guarantee correct functionality with all browser software across different operating systems. If you require the website to comply with other browsers this may not be possible.