These terms and conditions concern the design and hosting of a custom designed website with Bizink.The contract starts when you make your first payment to Bizink and is between you The Customer and Bizink of PO Box 433, Wanaka, New Zealand (“Bizink”).
These are the definitions that apply to this agreement:
“Acceptable Use Policy”
Means the Bizink’s policy of regulation of the manner of use of the hosting Services.
Means the contract to host the Web Sites as defined by this agreement.
Means the provision of space in an electronic medium to enable access to the Web Sites by all the World.
Means all of the prices set out in Schedule 1 to this contract.
Means a schedule to this agreement.
Means Bizink’s servers and includes Bizink’s entire software and hardware installation and all plant and machinery that serve it.
Means all of the services supplied under the terms of this agreement.
Means all of the web sites of the Customer that the Customer places with Bizink under the terms of this agreement.
These are the agreed terms:
1 Summary of agreement
For the Price and subject to the terms of this agreement and to the Customer’s compliance with the Acceptable Use Policy Bizink hereby agrees to provide the Services set out in Schedule 1.
2 Price and payment
2.1 The Price shall include:
2.1.1 the total sum payable for the Services set out in Schedule 1 minus any individual discounts detailed on the order form and
2.1.2 any other money due to Bizink under this agreement.
2.2 The Price shall be paid by monthly installments in advance with the addition of goods and service tax.
2.3 No part of the Price shall be payable until Bizink has submitted an invoice to the Customer for such part of the Price as is due.
2.4 Bizink reserves the right to charge the Customer interest in respect of the late payment of any sums due under this agreement (both before and after judgment) at the rate of 5 per cent above the base rate from time to time of the Reserve Bank of New Zealand from the due date until receipt of payment.
3 Duration and termination
This agreement shall continue until terminated:
3.1 Within 30 days of the signing on the contract if the customer is not happy. The customer will be eligible for a refund of the setup fee, minus any work completed by Bizink.
3.2 By 28 days notice in writing by either party to the other or
3.3 Immediately by Bizink if the Customer fails to pay any sum due within 28 days of the due date or
3.4 Immediately by either party if the other commits any material breach of any term of this agreement and which in the case of a breach capable of being remedied is not remedied within 30 days of a written request to remedy it or
3.5 Immediately by either party if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration or bankruptcy order (otherwise than for the purpose of an amalgamation or reconstruction).
3.6 Any termination of this agreement by this paragraph shall be without prejudice to any other rights or remedies to which a party may be entitled.
4 No refund
The Customer is not entitled to a refund of any fees paid:
4.1 If he terminates this agreement without giving proper notice. or
4.2 If Bizink terminates this agreement because the Customer has failed to comply with the AUP.
5.1 The parties are aware that in the course of the Contract they will each have access to and be entrusted with information in respect of the business and operation of the other and their dealings, transactions and affairs, all of which information is or may be confidential.
5.2 The parties hereby undertake for themselves and every employee or sub-contractor whose services they may use both during and after completion of the Contract that they will not divulge to any person whatever or otherwise make use of (and shall use their best endeavours to prevent the publication or disclosure of) any trade secret or confidential information.
5.3 Both Bizink and the Customer hereby undertake to the other to make all relevant employees, agents and sub-contractors aware of the confidentiality of information and the provisions of this paragraph and to take all such steps as shall from time to time be necessary to ensure compliance by its employees, agents and sub-contractors with these provisions.
5.4 Each of Bizink and the Customer hereby undertakes one to the other that for the period of 12 months following completion of the Contract they will not directly or by an agent or otherwise and whether for themselves or for the benefit of any other person induce or endeavour to induce any officer or employee of the other to leave his employment.
5.5 The provisions of the last previous sub paragraph shall not apply to one of them if the other becomes subject to bankruptcy, receivership or liquidation proceedings.
6 Third party software rights
6.1 The Customer undertakes to obtain all necessary licences to operate the Web Site and to indemnify Bizink against all costs claims and expenses arising from any failure to do so.
6.2 Bizink undertakes to obtain all necessary licences required to provide the Services and to indemnify the Customer against all costs claims and expenses arising from any failure to do so.
7 Acceptable Use Policy (“AUP”)
7.1 The Customer agrees to comply with the AUP set out in Schedule 2 as modified from time to time and notified to the Customer.
7.2 Bizink will give the Customer 3 month’s notice of any change to the AUP.
7.3 Bizink agrees that the AUP shall not be altered in such a way as to change any fundamental provision of this agreement nor to impose on the Customer an unreasonable or unduly expensive obligation.
7.4 If in the absolute discretion of Bizink, Bizink believes the Customer has violated the Host’s AUP, Bizink shall notify the Customer of this by email. Bizink may suspend service to the Customer pending further investigation.
7.5 If within 12 months of any violation, the Customer commits a second violation whether in a similar or different way then Bizink will terminate part or all of the Services without notice.
7.6 In any case Bizink may suspend all the Services without notice if Bizink reasonably believe the circumstances justify this to protect themselves or others or to comply with any law. In making the decision to suspend Bizink is not obliged to consider the cost or damage to the Customer that may be caused by suspension of the Services to the Customer.
7.7 Money will not be refunded to the Customer in respect of any period during which Services are suspended.
8 System and Network Security
8.1 The Customer agrees that he will not, and will not allow any other person to, violate or attempt to violate any aspect of the security of the systems of the Host.
8.2 The Customer understands that any such violation is unlawful in many jurisdictions and that any contravention of law may result in criminal prosecution.
8.3 Examples of violations are:
11.3.1 accessing data unlawfully or without consent.
11.3.2 attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures.
11.3.3 attempting to interfere with service to any user, host or network, including, without limitation, via means of overloading, “flooding”, “mail bombing” or “crashing”.
11.3.4 Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
11.3.5 Taking any action in order to obtain services to which the Customer is not entitled.
9 The Customer indemnifies Host
The Customer agrees to indemnify Bizink against all costs claims and expense arising directly or indirectly from:
9.1 The Customer’s failure to comply with the law of any country.
9.2 The posting by the Customer of any content on the Customer’s web site.
9.3 A breach of the intellectual property rights of any person.
9.4 The posting by any third party with or without the Customer’s knowledge of any material on the Customer’s web site.
9.5 Any action taken or omitted by any third party in relation to the Customer’s web site.
9.6 Any use of the Customer’s web site for a purpose forbidden by this agreement.
9.7 The actions of the Customer or any person authorised by him at the premises of the Host.
9.8 Provided that Bizink:
9.8.1 gives notice to the Customer of any infringement immediately he becomes aware of it.
9.8.2 gives the Customer the sole conduct of the defence to any claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the claim except upon the express instructions of the Customer. and
9.8.3 act in accordance with the reasonable instructions of the Customer and give to the Customer whatever assistance he reasonably requires in respect of the conduct of his defence.
9.9 The Customer shall reimburse Bizink his reasonable costs incurred in complying with the above provisions and for the purpose of this paragraph the Customer agree that the cost of our management and technical time is properly recoverable and can reasonably be valued at NZ$80 per hour without further proof.
10 Customer contact details
The Customer undertakes to provide to Bizink the Customer’s current land address email address fax and telephone numbers as often as they are changed.
11 Interruption to the Service
11.1 If it is necessary for Bizink to interrupt the Services and Bizink reasonably believes the prospective duration of down-time does not justify telling the Customer in advance, then he need not do so.
11.2 If notice of prospective down-time is given by Bizink he shall in his discretion give whatever period of notice he believes is reasonable.
11.3 The Customer acknowledges that the Services may also be interrupted for reasons beyond the control of the Bizink.
11.4 The Customer agrees that Bizink is not liable to him for any loss whether foreseeable or not, arising as a result of interruption to the Services.
The Customer agrees that the Host may disclose the Customer’s information including assigned IP numbers, account history, account use, etc. to any judicial or proper legal authority who makes a written request without further consent or notification to the Customer.
13 Host’s disclaimer
13.1 Bizink does not represent that the Services are suitable for the Customer’s use.
13.2 The Customer acknowledges that in entering into this agreement he has not relied on any representation or other information not contained in this agreement.
13.3 Bizink accepts no responsibility for:
16.3.1 any firewall provision not specified in the Services.
16.3.2 any malfunction in any software.
16.3.3 any aspect whatever of the content or functionality of the Customer’s web site.
14 Limitation of liability
14.1 The following provisions set out Bizink’s entire liability (including any liability for the acts and omissions of its employees) to the Customer in respect of:
17.1.1 any breach of its contractual obligations arising under this agreement. and
17.1.2 any representation statement or tortious act or omission including negligence arising under or in connection with this agreement
And the Customer’s attention is drawn to these provisions.
14.2 Any act or omission on the part of Bizink falling within this paragraph shall be known as an ‘Event of Default’.
14.3 Bizink’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to the total Price paid or payable by the Customer for this Contract for one year.
14.4 Bizink shall not be liable to the Customer in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Host had been advised of the possibility of the Customer incurring the same.
14.5 If a number of Events of Default give rise to substantially the same loss then they shall be regarded as giving rise to only one claim under this agreement.
14.6 The Customer hereby agrees to give Bizink not less than 24 hours in which to remedy any Event of Default hereunder.
14.7 Nothing in this paragraph shall confer any right or remedy upon the Customer to which he would not otherwise be legally entitled.
14.8 Bizink shall not be liable to the Customer for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of this agreement
15 No duty to monitor
Bizink is under no obligation to monitor or record the activity of any customer for any purpose, nor does Bizink assume any responsibility through its AUP or otherwise to monitor or police Internet-related activities.
16 Force majeure
16.1 Neither party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control including strikes of its own employees.
16.2 Each of the parties agrees to give notice immediately to the other upon becoming aware of an event of force majeure such notice to contain details of the circumstances giving rise to it.
16.3 If a default due to force majeure shall continue for more than 6 weeks then the party not in default shall be entitled to terminate this agreement. Neither party shall have any liability to the other in respect of the termination of this agreement as a result of force majeure.
17 Successors to the agreement
17.1 The benefit and obligations of this agreement shall be binding on any successor in title.
17.2 Neither party shall be entitled to assign this agreement nor all or any of their rights and obligations hereunder without the prior written consent of the other.
17.3 The Customer shall not permit any part of the benefit of this agreement to be used by any other person except a person to whom the Web Sites have been sold or transferred.
18 Contract is divisible
Each sub paragraph in this agreement is independent and severable from each other paragraph and enforceable accordingly. If any restriction is unenforceable for any reason but would be enforceable if part of the wording were deleted, it will apply with such deletions as may be necessary to make it valid and enforceable.
Any notice to be served on either of the parties by the other shall be sent by first class post or pre paid recorded delivery or by facsimile and shall be deemed to have been received by the addressee within 72 hours of posting or 24 hours if sent by facsimile to the correct number.
The headings in this document are for reference only.
21 Dispute Resolution
In the event of a dispute arising out of or in connection with this Contract and which has not been resolved following discussions and negotiations between a person or persons appointed or authorised by the Customer and the Host then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.
The failure by either party to enforce at any time or for any period any one or more of the terms or conditions of this Contract shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Contract.
This Contract shall be interpreted according to the laws of New Zealand.
Schedule 1 The Services and Prices
Set up fee: $3995.00+gst ($2000+gst payable before we start work on the Website. $2500+gst is payable once the completed website has been signed off by you)
Set up fee: $1995.00+gst (payable before we start work on the Website)
under this contract: A Bizink Website which is hosted by Bizink and contains Bizink content
Monthly fee: $149+gst
Schedule 2 The Acceptable Use Policy
1 The following material may not be stored on Bizink’s servers:
1.1 Copyright works.
1.2 Commercial audio, video or music files
1.3 Any material which violates the law of any established jurisdiction.
1.4 Unlicensed software.
1.5 Software which assists in or promotes: emulators, phreaking, hacking, password cracking, IP spoofing.
1.6 Links to any of the material specified in this paragraph.
1.7 Pornographic material.
1.8 Any material promoting discrimination or animosity to any person on grounds of gender, race or colour.
Agreement OverviewThe Bizink Content Pack consists of content for use in your website and marketing. Some of the content is provided by our sister company The Small Business Company Ltd (TSBC). TSBC provides interactive online content and tools targeted at small business users that can be embedded in a third-party website. TSBC provides code and original files required to get our tools running in third-party websites, and hosts all associated tools on our servers.
This Agreement represents an agreement (“Agreement”) between Bizink (“Provider”) and you (“Customer”) for the provisioning of TSBC content through access to the Bizink Content Pack.
The objectives of this Agreement are to:
The Content Pack is library of content that can be used for the Customer’s website and marketing.
This content is designed to be used by potential or existing small business owners to assist their understanding of small business topics of interest. The following Services are covered by this Agreement;
These interactive tools are HTML based pieces of content that sit inside a TSBC training platform (we call internally Casper ™). The tools are branded for the client and ‘white labelled’ to remove any TSBC branding.
The ownership of the software (Casper ™) remains with TSBC, and TSBC can use this software to sell to different content/topics to other clients.
The ownership of the content inside these tools also remains with TSBC, and the Client cannot sell or use the specific created content in any other form apart from what this agreement entitles them to.
Updating of online tools
When an enhancement to an existing production application is required, should the volume and timing of enhancements impact the delivery of interactive tools to Client, then Bizink shall inform the Client with a timeframe on any disruption and advance warning of any potential down time.
Updating of system
Customer responsibilities and/or requirements in support of this Agreement include:
Bizink Service Provider Requirements
Service Provider responsibilities and/or requirements in support of this Agreement include: