TERMS
(as of July 2020).
1. Introduction
1.1 These terms apply to all work we carry out for our customers. By asking us to do any work for you, you acknowledge that you have read and understood these terms, and agree to be bound by them.
1.2 The details of the work we will do for you, including pricing and timing, will be as set out in a proposal agreed with you. Together, all proposals and these terms comprise our agreement. If there is any inconsistency between a proposal and these terms, the proposal will prevail to the extent of the inconsistency.
2. Definitions and interpretation
2.1 The following terms have the meanings specified:
| Agreement | Agreement the agreement for the provision by us of services to you, comprising one or more Proposals and these Terms; |
| Charges | the charges payable for the Services, as set out in the Proposal; |
| Confidential Information | Confidential Information any information disclosed (whether disclosed in writing, orally or otherwise) by you to us or vice-versa that is marked as “confidential”, described as “confidential” or should have been reasonably understood by the parties at the time of disclosure to be confidential, and the terms of the Agreement; |
| Customer Works | Customer Works the works and materials provided to us by you, or by any third party acting for or on your behalf, for incorporation into the Website; |
| Defect | Defect a defect, error or bug having a material adverse effect on the appearance, operation or functionality of the Website but excluding any defect, error or bug caused by or arising as a result of an act or omission on your part, or an act or omission of one of your employees, officers, agents or sub-contractors, or an incompatibility between the Website and any other application, program or software other than anything expressly identified as compatible by us; |
| Force Majeure Event | a circumstance beyond our reasonable control which results in us being unable to observe or perform on time an obligation under these Terms; |
| Implementation Date | has the meaning given in clause 5.1; |
| Intellectual Property Rights | Intellectual Property Rights all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs); |
| Ongoing Services | Services which are ongoing in nature, where there are no specific deliverables required of us. These include ongoing digital marketing services and hosting services; |
| Prohibited Content | any content that is obscene, offensive, upsetting, defamatory, personally offensive or in any way unsuitable for people under the age of 18 years; |
| Project Work | Services that are not Ongoing Services. These include website development services; |
| Proposal | Proposal a proposal, statement of work or similar document agreed with you; |
| Services | the services set out in a Proposal; |
| Third Party Provider | a provider of Third Party Works; |
| Third Party Works | works and materials forming part of the Website or otherwise provided for you, the Intellectual Property Rights in which are owned or licensed by a third party (excluding the Customer Works); |
| Third Party Terms | Third Party Terms the terms on which a Third Party Provider makes its Third Party Works available, including its terms of service and privacy policy; |
| Terms | these terms; |
| We, us or our | Zyber Limited, NZBN 9429032400588; |
| Website | the website or web application functionality to be supplied by us for you under these Terms, where applicable; |
| Website Content | Website Content the Customer Works implemented into the Website using a content management system through a standard web browser; |
| Website Deployment | Website Deployment the Website is published making it publicly accessible on the internet; |
| Working Day | Working Day has the meaning given in the Companies Act 1993; and |
| You, or your | you, our customer. |
2.2 In the interpretation of these Terms, unless the context otherwise requires or specifically otherwise stated:
2.2.1 references to the parties include their respective executors, administrators, successors and permitted assigns;
2.2.2 any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done;
2.2.3 headings have been inserted for convenience only and shall not affect the construction of these Terms;
2.2.4 references to clauses and schedules are to those in these Terms;
2.2.5 including and similar words do not imply any limitation;
2.2.6 the singular includes the plural and vice versa;
2.2.7 written and in writing includes any means of reproducing words, figures or symbols in a tangible and visible form;
2.2.8 every right, power and remedy of a party remains unrestricted and may be exercised without prejudice to each other at any time;
2.2.9 amounts are in New Zealand dollars, and exclude every tax and duty, unless otherwise expressly provided;
2.2.10 references to a document or agreement includes it as varied, novated or replaced; and
2.2.11 where a party is comprised of more than one person, these Terms shall bind those persons jointly and severally.
3. Services and timing
3.1 We will provide the Services described in your Proposal.
3.2 Any schedules and timeframes set out in your Proposal are estimates only, and may be affected by the timing within which you provide anything we need from you in order to be able to provide the Services to you as contemplated, and by matters outside both your and our control. We will use reasonable efforts to provide all Services within estimated timeframes, but will not be liable for any failure to do so. In order to be able to efficiently deliver on our commitments to all of our customers, if you do not provide anything we need from you in order to be able to provide the Services to you as contemplated, we reserve the right to reschedule the provision of the Services or any part of the Services to our earliest convenience and/or to charge additional fees in order to meet your required timing, and will have no liability to you if we do so.
3.3 If you are working with a tight deadline we can provide a fast track service. The fee for the fast track service is a minimum 20% of the Charges, as set out in your Proposal. The fast track service allows you to skip the queue and be positioned into the next available spot that we see fit to commence working with you. Our ability to provide the fast track service to you is subject to the same limitations that govern the timing for regular scheduling, as set out in clause 3.2 (i.e. it is still subject to you providing anything we need from you to be able to provide the Services to you as contemplated).
3.4 We may:
3.4.1 suspend some or all of the Services in order to carry out scheduled maintenance or repairs. Subject to this and clause 9.1 (service levels), we will use reasonable endeavours to maintain an acceptable Website availability level;
3.4.2 make available to you the ability to update or amend the Website using a standard web browser; and
3.4.3 make available, an online help facility for the purpose of providing support to you (and our other customers). We will use reasonable endeavours to respond to requests for support within two Working Days; however a response that becomes on-going may constitute an additional Service for which an additional fee maybe charged;
3.5 If your Proposal includes search engine optimisation services, we will use reasonable endeavours to perform these services as set out in your Proposal, however we cannot guarantee the position or inclusion of the Website within search engine rankings or results.
3.6 If your Proposal states that any particular Services will be provided for a specific term, the agreement to provide those Services will automatically renew for successive terms of the same length unless terminated earlier pursuant to any provision of the Agreement or either party gives the other party written notice of non-renewal at least 30 calendar days prior to the expiration of the then-current term. Each renewal will be on the existing terms as amended by any written notice we may give you (including any amendment to any Proposal) no later than 45 calendar days prior to the expiration of the then-current term, or such other amendments as we may agree with you in writing.
4. Customer obligations
4.1 You will provide us with all information and co-operation reasonably required by us in order for us to be able to provide the Services to you.
4.2 You will be responsible for:
4.2.1 procuring any third party co-operation reasonably required by us to enable us to provide the Services to you; and
4.2.2 obtaining suitable licences of third party software (such as email client software) which are required for the full use of the Services; and
4.2.3 keeping any passwords relating to the Services confidential, and changing such passwords on a regular basis.
4.3 You will ensure that any material provided to us for inclusion on the Website does not infringe the Intellectual Property Rights of any person and is not Prohibited Content.
5. Delivery and acceptance
5.1 We will notify you in writing when the Website is ready for Website Content loading (the date on which the Website is ready being the Implementation Date), and will provide you access to the content management area of the Website for the purpose of Website Content loading and acceptance testing.
5.2 As soon as practicable following the Implementation Date, you will carry out acceptance tests to determine:
5.2.1 whether the Website conforms in all material respects with the specifications of the Website in the Proposal; and
5.2.2 whether the Website has any Defects,
(the Acceptance Criteria).
5.3 If in your reasonable opinion the Website meets the Acceptance Criteria, you will send us a notice in writing, within 10 Working Days of the Implementation Date (Acceptance Period), confirming your acceptance of the Website.
5.4 If in your reasonable opinion the Website does not meet the Acceptance Criteria, you will send us a notice in writing, within the Acceptance Period, setting out in detail the respect(s) in which the Website does not meet the Acceptance Criteria.
5.5 If we (acting reasonably) agree that the Website does not meet the Acceptance Criteria, we will have a remedial period of 30 Working Days following the expiry of the Acceptance Period to modify, adjust or replace the Website so that it meets the Acceptance Criteria.
5.6 The Website will be deemed to have been accepted by you if the earlier of the following occurs:
5.6.1 you do not give any notice to us under either clause 5.3 or clause 5.4 within the Acceptance Period; or
5.6.2 you instruct Website Deployment to occur; or
5.6.3 you use the Website for any purpose other than Website Content loading and/or acceptance testing.
5.7 We provide a warranty for 10 Working Days from the date on which the Website is deemed to have been accepted. This covers any bugs or theme issues that may arise after the Website has gone live that had not been discovered or tested in the Acceptance Period. It does not cover additional third party apps or any services that are installed or implemented by you or any other person after the Website is deemed to have been accepted.
5.7.1 The warranty period will be null and void if the client chooses to delay the go live date by more than 10 working days after Zyber has stated to proceed with the go live stage.
6. Third Party Works
6.1 Third Party Providers we work with include providers of content management systems, inventory software, customer relationship management software, and other third party applications. A list of Third Party Providers we often work with is available here. We will update this list from time to time.
6.2 All Third Party Works (whether provided by Third Party Providers listed at the link included above or not) are provided on Third Party Terms. It is your responsibility to have read and understood all applicable Third Party Terms.
6.3 Unless a Proposal expressly states otherwise, all charges associated with Third Party Works are payable in addition to the Charges specified in the Proposal. Third Party Providers’ charges may be increased at their discretion. Where the Charges in a Proposal are stated as being inclusive of any Third Party Providers’ charges, we reserve the right to increase the Charges to reflect an increase in the Third Party Providers’ charges, and you agree to pay any such increased Charges.
6.4 Once the Website has been accepted or is deemed to have been accepted in accordance with clause 5, we cannot be held responsible for any ongoing integration between the Website and the platform it is hosted on (e.g. Shopify), auxiliary sales platforms (e.g. TradeMe, Amazon, eBay), or any applications, add-ons, or code snippets written by and/or installed by third-party developers. We are not responsible any loss of income caused by interacting with any third-party platform including, but not limited to, those mentioned at the link included above. Assistance with resolving any integration issues will be scoped and costed separately, if required.
7. Acceptable use
7.1 You must not use the Website or any of the Services:
7.1.1 to host, store, send, relay, or process any Prohibited Content;
7.1.2 for any purpose which is unlawful, fraudulent, or infringes any third party rights;
7.1.3 in any way which may put us in breach of a contractual or other obligation owed by us to any internet service provider.
7.2 You acknowledge that we do not purport to monitor the content of the Website or the use of the Services.
7.3 You indemnify and will keep indemnified us against all damages, losses and expenses (including legal expenses) arising as a result of any breach by the you of this clause 7, and any claim that the Website Content or Customer Works constitute Prohibited Content, or any legal proceedings relating to such a claim.
8. Charges and payment
8.1 You shall pay the Charges for the Services.
8.2 For Project Work we require payment of a 25% deposit before commencing work, which is non-refundable. Early termination charges may apply if the Agreement is terminated prior to the completion of the project – see clauses 19.3 and 19.5.
8.3 For Ongoing Services we require that you contract with us for a minimum term. The minimum term will be specified in your Proposal. Early termination charges may apply if the Agreement is terminated prior to the expiry of the minimum term – see clauses 19.4 and 19.5.
8.4 Contingencies:
8.4.1 All estimates of work provided by us will have a minimum of 10% contingency plan listed as an additional line item of service. This additional fee is to cover any out of scope service that is added to brief by you. If we believe the request is within the percentage of contingency in your Proposal we will confirm with you in writing and commence setup of the additional deliverables.
8.4.2 If the additional deliverables requested are greater than the contingency percentage in the Proposal we will provide an updated Proposal for you to approve before commencing any work.
8.4.3 If the contingency percentage is not used at all in the estimate of work, this will be rolled over to support and success services as hours as a service for you.
8.4.4 If you already have support and success this will be added as additional time allocated to the support and success package.
8.5 Charges for any applicable monthly running costs as outlined in your Proposal will begin on the Implementation Date, or for any cost in respect of which we are charged by a third party beforehand, from the date on which we start being charged by the relevant third party.
8.6 Unless otherwise specified, any website-related recurring monthly charges (e.g. support packages) will begin eight weeks from the effective date specified in your Proposal.
8.7 Charges may be increased in connection with a renewal (see clause 3.6), or at any time if any Third Party Provider increases their charges (see clause 6.3).
8.8 Unless any particular timing for payment is set out in a Proposal, all invoices for Charges must be paid within 7 days of receipt.
8.9 Unless expressly stated otherwise in any Proposal, Charges are stated exclusive of GST.
8.10 If you do not pay any amount properly due to us, you agree that we may:
8.10.1 charge you interest on the overdue amount at the rate of 15% per annum which interest will accrue daily until the date of actual payment and will be compounded monthly;
8.10.2 refer the debt to our nominated debt collection agency;
8.10.3 release your details to our nominated credit reporting agency;
8.10.4 claim all costs related to debt recovery from you; and/or
8.10.5 restrict or cease provision of any Services to you.
8.11 EziDebit (NZ) Limited is our duly appointed agent to execute direct debit payments on our behalf. Direct debit payments will be executed in the following manner:
8.11.1 EziDebit (NZ) Limited will charge you NZD $14.90 (excluding GST) for each failed, rejected, or dishonoured direct debit.
8.11.2 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.
8.11.3 In the event that three consecutive attempts to debit your account has failed, the debt will be referred to a receivable management company and/or its solicitors for collection and you will be liable for all recovery costs as provided in the terms and conditions of the direct debit.
8.12 If the cross migration services being provided by Zyber are greater than $50,000 + GST for a single project, payments can be scheduled to match key benchmark objectives completed by Zyber.
25% at Commencing to work with Zyber.
25% when the design stage has been completed and signed off by the client.
25% when the development stage has been completed by Zyber.
25% to be paid before commencing the Go-live process. No client will be able to go live until the final invoice has been paid.
Please note that delivery and acceptance of each stage will fall under Section 5, Delivery and Acceptance.
8.13 Additional third party applications may occur during the development process of your website. The payment schedule is determined on a case by case basis for each application; some applications commence payment fees when the website goes live, others will commence upon installation into the site. These application fees are to be paid by the client on a monthly basis via the designated client’s credit card that is loaded to the development Shopify Store. Zyber is not responsible for these additional fees, however, we will do our best to communicate the fees of each application before the installation is executed.
8.14 you accept a 12-month or more Support & Success retainer contract with Zyber, we will allow payments for the website/application build to be spread over 12 months. Payments are not set to benchmarks being completed.
8.14.1 If client wishes to cancel the contract of the website build and Support and Success, the client must settle the outstanding fees of were the project currently sits on the benchmarks provided in 8.12.
8.14.2 Support and Success to commence at the same time as the cross migration/back end application services.
8.14.3 Any hours not used in the Support and Success services will be rolled over to the following month, this may happen in the first month of the strategy/consultation phase of the project.
8.14.4 Our billing will display the cross-migration services split over 12 months with an additional line item of the Support and Success service being provided.
9. Service levels and support
9.1 Any service levels applicable to the Services will be set out in your Proposal.
9.2 If requested, our website specialist can be on call for ad hoc support, changes and development to the Website. Outside of working hours commences from 6 pm until 8 am Monday to Friday and any time on Saturday or Sunday. Work commenced outside of working hours is charged at rates corresponding with the seniority of resource required, at a minimum of $395.00 (excluding GST) per hour. (Please refer to our SLA guide)
9.3 It is your responsibility to ensure that you have sufficient business continuity and disaster recovery plans and insurance in place to protect your business. Any agreed service levels are only provided in respect of applications that we host. The service levels of any Third Party Works are as specified by the relevant Third Party Provider in their Third Party Terms. We will have no liability to you whatsoever in respect of any service level failure of a Third Party Provider – any recourse that you may have is limited to the recourse available from the relevant Third Party Provider. Please ensure that you read the relevant Third Party Terms carefully. For example, Shopify’s Rewind does not back up key elements of your store including theme, orders, file storage and customer information.
10. Web & private application hosting
10.1 This clause applies where your Proposal includes web hosting.
10.2 From the Implementation Date, will host the Website in the manner specified in the Proposal, and will make available the relevant resources for this purpose; for example, A Shopify Store is hosted by Shopify AWS server (outside of our control) if we are building a private app for your Shopify store. This application will be hosted on our dedicated server (AWS server). A monthly hosting fee will commence from the development stage of hosting the private app or website. Please note there is a minimum 24 month hosting fee for the application.
10.3 The Intellectual Property Rights in any private app built for your project and or Shopify store will belong to Zyber unless contract agreement between both parties state that the Intellectual Property belongs to you, which will need to be agreed by Zyber, additional fees will apply, and Zyber has the right to decline work where the IP is not the property of Zyber.
Hosting private applications built by Zyber will remain with Zyber for as long as the application is active. There is also minimum hosting of any private application with us for 24 months. After 24 months, Zyber has the rights to change the terms in the contract, including but not limited to updating the monthly cost and services for hosting the private application.
10.4 There is an automatic rollover period of 12 months, if notice is not given before the final month of us hosting your private app.
10.5 Any support/updates for the private application while not being hosted by us will incur additional fees. We will endeavour to provide an estimate for any such work.
11. Domain hosting
11.1 This clause applies where your Proposal includes domain hosting.
11.2 You authorise us to act as agent on your behalf for all domain name(s) as outlined in your Proposal. Such authorisation is restricted to activities related to the registration and management of your domain name(s), and may include (but is not limited to):
11.2.1 submitting service requests to the registrar on your behalf, and dealing with the registrar;
11.2.2 entering into a contract with the registrar on your behalf, in the form of the Domain Name Registration Process; and
11.2.3 disclosure of personal information to the registrar in order to accurately register and manage the domain name(s).
12. Block time
12.1 This clause applies where your Proposal includes buying blocks of time from us.
12.2 Block time is selling an amount of hours to work on a task. It is not a guarantee that the project will be completed in the block time allocated and agreed between us.
12.3 A minimum of 10 consecutive hours must be purchased for block time.
12.4 Block time is pre-paid 100% up front before any work by us commences.
12.5 So long at the work undertaken is in our reasonable opinion satisfactory, any work undertaken with block time which is not accepted by you within 10 Working Days of it having been undertaken shall be deemed to have been accepted and the corresponding hours will be removed from your account with us. Any block time remaining unused after 60 Working Days from purchase will expire.
12.6 Clients/Merchants on block time can request for P1 urgent work to be done on their site, please be aware that you may not be guaranteed P1 services. If service is approved for urgent, P1 ticket request, the fee will be double your hourly block time.
13. Intellectual Property Rights
13.1 We own all right, title and interest, including all Intellectual Property Rights, in and to the Services and any suggestions, enhancements, requests, recommendations, corrections or other feedback you may provide relating to the Services.
13.2 All Intellectual Property Rights in the Website Content, and Customer Works will, as between the parties, be the property of you, subject always to the other clauses of these Terms.
13.3 Ownership of and all Intellectual Property Rights in a Website or any other software or content developed for you will remain held by us until all amounts owing to us have been paid in full. For the avoidance of doubt, we will not release to you control of a Website, use of a domain name or the source code of any software, until we have been paid in full. Please refer to clause 10.3 regarding hosting of private applications.
13.4 All design elements created by us can be supplied to you on request and in an appropriate format as determined by both parties.
13.5 We may include a statement of credit together with a link to our website on each page of the Website in an unobtrusive position. You will retain any such credit and link in any adapted version of the Website, and you will (and will only) remove any such credit and link from the Website at our request.
13.6 You agree to grant us a non-exclusive worldwide licence, under the Intellectual Property Rights in the Website, to use the Website for the purpose of marketing our services to third parties. This includes, but is not limited to, displaying our logo, a message indicating that we created the website, and a hyperlink to our website home page.
14. Warranties
14.1 You warrant to us that you have the legal right and authority to enter into and perform your obligations under the Agreement.
14.2 You warrant to us that any information provided to us under these Terms is free of infringement of any third party’s Intellectual Property Rights.
14.3 We warrant to you:
14.3.1 that we have the legal right and authority to enter into and perform our obligations under the Agreement; and
14.3.2 that we will perform our obligations under the Agreement with reasonable care and skill.
14.4 You acknowledge that we have designed the Website to work with the most common and widely used version of Microsoft Edge, Chrome and Mozilla Firefox web browser technology at the Effective Date of your Proposal, and we do not warrant that the Website will work with any other web browser technology.
14.5 Unless otherwise specified in the Proposal, our warranty in clause 14.4 will only apply to:
14.5.1 the latest 2 browsers versions for Chrome, Firefox, Safari;
14.5.2 the latest version of Microsoft Edge;
14.5.3 the latest 2 operating systems for Windows, Android and iOS; and
14.5.4 the latest 2 device versions for Windows, Android and iOS.
14.6 You also acknowledge that we do not purport to provide any legal advice under these Terms or in relation to the Website and we do not warrant that the Website will not give rise to any civil or criminal legal liability on the part of the you or any other person.
14.7 All of the parties’ liabilities and obligations in respect of the subject matter of the Agreement are expressly set out in the Proposal and these Terms. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
14.8 Zyber will benchmark both the existing and new websites during the go live process to illustrate what the updated scores are for the Core Web Vitals (CWV), Lighthouse test and SEO Audit. The CWV report shows how your website pages perform, based on real world usage data. The Lighthouse report runs various tests, establishing how well a website or application can be crawled by search engines and displayed in the search results. Zyber strives to always improve the Lighthouse, CWV and SEO statistics for each website. Please note, there is no contractual agreement for Zyber to improve your current score regarding the cross migration and/or upgrade services we provide. There are multiple variables outside of our control that can affect these scores. These include but are not limited to; applications and customisation requested to be coded and or installed on the website, as well as the use of specific brand assets loaded throughout the website.
15. Limitations of liability
15.1 Nothing in these Terms will exclude or limit the liability of either party for:
15.1.1 death or personal injury caused by that party’s negligence;
15.1.2 fraud or fraudulent misrepresentation on the part of that party; or
15.1.3 any other liability which may not be excluded or limited under applicable law.
15.2 Subject to clause 15.1, our liability to you under or in connection with the Agreement, any third party agreement or contract, or any collateral contract, whether in contract or tort (including negligence), will be limited as follows:
15.2.1 We will not be liable for any:
(a) loss of profits, income or anticipated savings,
(b) loss or corruption of any data, database or software,
(c) reputational damage or damage to goodwill;
(d) loss of any commercial opportunity, or
(e) indirect, special or consequential loss or damage;
15.2.2 We will not be liable for any losses arising out of a Force Majeure Event; and
15.2.3 We will have no liability to you in respect of any claim arising out of or in connection with the Agreement to the extent that the amount of the claim when added to the total of all prior claims exceeds the total amount paid and payable by you to us under the Agreement during the 12 month period immediately preceding the event giving rise to the claim then in question.
15.2.4 You agree that you are using the Services for the purpose of a business and that the Consumer Guarantees Act 1993 (NZ) and any other similar consumer protection legislation in any jurisdiction does not apply to the Services.
16. Privacy of Data
Zyber is committed to protecting and respecting your privacy, and we’ll only use your personal information to provide the products and services you requested from us. From time to time, we would like to contact you about our products and services, as well as other content that may be of interest to you.
16.1 You warrant to us that you have the legal right to disclose all personal data that you disclose to us under these Terms.
16.2 We warrant that:
16.2.1 we will act only on instructions from you in relation to the processing of any personal data performed by us on behalf of you. You are able to access and control your personal information provided to Zyber. You have the right to request access to, correct, amend, delete, port to another service provider, restrict, or object to certain uses of your personal information; and
16.2.2 we will not disclose, sell, or release any personal data to any third party unless otherwise outlined in these Terms, your Proposal or we are required to do so by law.
16.3 You authorise us to disclose private information to credit reporting agencies from time to time for the purpose of determining credit worthiness or managing your account.
16.4 We may use your information for a range of different purposes, including:
16.4.1 to provide products and services to you, to provide you with information about those products and services, to assist you with enquiries or purchases, to enhance your experience of our products and services, and to provide you with better customer service;
16.4.2 to provide you with information products or services including those of third parties that may be of interest to you
16.4.3 as required or authorised by law.
We prioritise making sure your personal information is safe, and to ensure the security and integrity of our platform. While we work hard to protect your personal information, we are not liable to you, to the extent permitted by law, for any unauthorised access to this information and we encourage you to proactively take your own steps to manage your privacy in a digital world. We will notify you of any unauthorised access to your information that may occur.
If you would like to ask about, make a request relating to your personal information, please contact us at admin@zyber.co.nz.
16.4.4 Data Backup and Rewind Installation
Zyber highly recommends and installs Rewind (https://rewind.com/) for all our clients due to the lack of Shopify's native capability to comprehensively back up key data. Rewind provides a critical safety net, ensuring that your data is backed up and can be restored in case of data loss or corruption.
16.4.5 Client Responsibility and Liability
While we facilitate the installation and initial setup of Rewind, the ongoing responsibility to maintain this backup service lies with you. Should you choose to stop paying for or remove Rewind, you need to be acutely aware that all liability for any data loss, data corruption, or inability to restore data from that point forward will rest entirely with you.
16.4.6 No Liability for Data Loss
Zyber will not be held liable for any data loss or issues arising from the discontinuation or removal of Rewind. It is your responsibility to ensure that your data is backed up and secure. We strongly encourage you to maintain active subscriptions to Rewind or equivalent backup services to protect your valuable data.
16.4.7 Acknowledgement and Acceptance
By agreeing to these Terms, you acknowledge and accept the critical importance of maintaining an active backup service and the consequences of failing to do so. Zyber shall not be held responsible for any data loss or associated damages resulting from your decision to discontinue or remove Rewind.
17. Confidentiality and publicity
17.1 We will:
17.1.1 keep confidential and not disclose your Confidential Information to any person save as expressly permitted by this clause 17; and
17.1.2 protect your Confidential Information against unauthorised disclosure by using the same degree of care as we take to preserve and safeguard our own Confidential Information of a similar nature, being at least a reasonable degree of care.
17.2 You will:
17.2.1 keep confidential and not disclose our Confidential Information to any person save as expressly permitted by this clause 17; and
17.2.2 protect our Confidential Information against unauthorised disclosure by using the same degree of care as you take to preserve and safeguard your own Confidential Information of a similar nature, being at least a reasonable degree of care.
17.3 Confidential Information of a party may be disclosed by the other party to that other party’s officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information disclosed.
17.4 The obligations set out in this clause 17 shall not apply to:
17.4.1 Confidential Information that is publicly known (other than through a breach of an obligation of confidence);
17.4.2 any Confidential Information that is in possession of a party prior to receipt of that information from the other party; or
17.4.3 any Confidential Information that is received by a party from an independent third party who has a right to disclose the relevant Confidential Information.
17.5 Nothing in these Terms shall restrict a party from making any disclosure of Confidential Information that is:
17.5.1 required by law; or
17.5.2 required by a governmental authority, stock exchange or regulatory body provided that the party subject to such disclosure requirement must where permitted by law give to the other party prompt written notice of the disclosure requirement.
17.6 Subject to our compliance with the other provisions of this clause 17, we may make public disclosures relating to the subject matter of the Agreement for promotional purposes, without your consent.
18. Termination
18.1 The Agreement will come into force on the commencement of your first Proposal (as specified in such Proposal) and will continue in force indefinitely, unless and until terminated in accordance with this clause 18. Termination of the Agreement shall terminate all active Proposals without any further action being required of the terminating party.
18.2 Either party may terminate the Agreement at any time by giving at least 30 Working Days written notice to the other party.
18.3 We may terminate any Ongoing Services by giving you at least five Working Days’ written notice.
18.4 We may terminate the Agreement if you fail to respond to us or provide any information we may reasonably require from you within 90 days of our contact or information request (as applicable).
18.5 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:
18.5.1 commits any material breach of any clause of these Terms, and:
(a) the breach is not remediable; or
(b) the breach is remediable, but other party fails to remedy the breach within 30 Working Days of receipt of a written notice requiring it to do so; or
18.5.2 fails to pay any amount due under these Terms in full and on time.
18.5.3 repeatedly breaches these Terms.
18.6 Either party may terminate the Agreement immediately by giving written notice to the other party if:
18.6.1 the other party:
(a) is dissolved;
(b) ceases to conduct all (or substantially all) of its business;
(c) is or becomes unable to pay its debts as they fall due;
(d) is or becomes insolvent or is declared insolvent; or
(e) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
18.6.2 an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
18.6.3 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 the Agreement); or
18.6.4 (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.
19. Effects of termination
19.1 Upon termination all the provisions of these Terms will cease to have an effect, save that the following provisions of these Terms will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): clauses 2, 7.3, 13, 15, 17, 18, 19, and 20.
19.2 Termination of the Agreement will not affect either party’s accrued rights (including our accrued rights to invoice and to be paid the Charges) as at the date of termination.
19.3 If you terminate any Project Work, or the Agreement under clause 18.2 (termination on notice), or we terminate the Agreement for your breach or under clause 18.4 (sunset) or clause 18.6 (insolvency etc.):
19.3.1 between commencement and payment of the first milestone payment, you agree to pay us 50% of the remaining Charges for the Project Work within five Working Days of the date of termination:
19.3.2 between payment of the first milestone payment and payment of the second milestone payment, you agree to pay us 75% of the remaining Charges for the Project Work within five Working Days of the date of termination:
19.3.3 between payment of the second milestone payment and payment of the third milestone payment, you agree to pay us 100% of the remaining Charges for the Project Work within five Working Days of the date of termination.
19.4 If you terminate any Ongoing Services, or the Agreement under clause 18.2 (termination on notice), or we terminate the Agreement for your breach or under clause 18.4 (sunset) or clause 18.6 (insolvency etc.) you agree to pay us 50% of the Charges remaining for the balance of the then current term of the Ongoing Services within five Working Days of the date of termination.
19.4.1 If you are terminating on not renewing ongoing Support and Success services any unused hours remaining will not be refunded or credited towards future work.
19.5 If you terminate any Project Work, Ongoing Services, or the Agreement under clause 18.2 (termination on notice), or we terminate the Agreement for your breach or under clause 18.4 (sunset) or clause 18.6 (insolvency etc.) we reserve the right to charge (and you agree to pay) for the work we have completed to the point of termination at our prevailing hourly rates (available from us on request) to the extent that any deposit or other amounts (including those set out in clause 19.3 and 19.4) you have paid us do not cover that work, plus any Third Party Provider costs incurred for your benefit, and we shall not be required to refund any remaining deposit funds to you.
19.6 If the Agreement is terminated under clause 3.6 (non-renewal) or by you under clause 18.5 (breach) or 18.6 (insolvency), but not in any other case:
19.6.1 we will provide such assistance as is reasonably requested by you to enable the transfer of any domain name(s) to you or another service provider, subject to payment of our reasonable expenses; and
19.6.2 you will be entitled to a refund of any Charges paid by you to us 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 us (such amount to be calculated by us using any reasonable methodology).
19.7 Except for as provided in clause 19.6, you will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to us.
20. General
20.1 No breach of any provision of these Terms will be waived except with the express written consent of the party not in breach.
20.2 If a clause of these Terms is determined by any court or other competent authority to be unlawful and/or unenforceable, the other clauses of these Terms 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).
20.3 Nothing in these Terms will constitute a partnership, agency relationship or contract of employment between the parties.
20.4 Subject to clause 3.6 (amendments proposed in connection with a renewal of a Service), these Terms may not be varied in respect of any active Proposal except by a written document signed by or on behalf of each of the parties. Otherwise, we may vary these Terms from time to time by updating them online, and you agree to be bound by these Terms as varied, for any further Proposals you subsequently enter into.
20.5 We may freely assign our rights and obligations under the Agreement without your consent. Except for as expressly provided in this clause or elsewhere in these Terms, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in these Terms or any rights or obligations under these Terms.
20.6 We may subcontract any of our obligations under the Agreement to any third party without your consent. Notwithstanding any such subcontracting, we remain responsible to you in accordance with the terms of the Agreement.
20.7 You will not, without our prior written consent, either during the term of the Agreement or within 6 months following the date of effective termination of the Agreement, engage, employ or otherwise solicit for employment any employee or contractor of ours.
20.8 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.
20.9 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.
20.10 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 15.1, 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.
20.11 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.
20.12 Any changes to the terms and conditions specified above by the customer can be amended by lawyers representing Zyber, please note the legal fees will be passed on to the customer.
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