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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

  1. 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 Development Services.
    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.

Development Services

  1. 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.

  2. 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 you).

  3. 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.

  4. 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.

Acceptance

  1. 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:
    1. reasonable evidence that the Software complies with the Specifications in all material respects; and
    2. 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.

  2. 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:
    1. 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
    2. 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 material respects.

  3. We warrant that, upon the completion of the Development Services, the Software will comply with the Specifications in all material respects.

  4. 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.

Hosting Services

  1. We will use reasonable endeavours to provide the Hosting Services for you.

  2. You will direct all hosting queries through Propel Ltd.

  3. 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.

  4. For the avoidance of doubt, we are not responsible for fixing faults or problems which occur:
    1. in your computer or communications equipment including any software used or stored in them;
    2. 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;
    3. in anything else not forming part of the network of the Third Party Provider resold to you by us;
    4. because you use the Services incorrectly; or
    5. because of any other event beyond our or the Third Party Provider's reasonable control.

  5. 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).

  6. 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.

  7. You will be responsible for procuring and registering any domain names that you wish to use in connection with the Software.

  8. 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:
    1. Linux hosting plan is to be paid 12 months in advance and is non-refundable
    2. Windows hosting plan is to be paid at least 6 months in advance and is refundable
    3. Setup fee is non-refundable for all plans

  9. 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.

  10. 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.)

Your General Obligations

  1. You agree to provide us with such information, assistance and instructions as we reasonably require in order to provide the Services.

  2. You agree not to use the Services for any unlawful purpose.

Content

  1. 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.

  2. 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:
    1. breaches the copyright, patent, trade mark, moral rights or any other right (including any other Intellectual Property rights) of any third party;
    2. 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
    3. is or contains any virus, worm, Trojan horse, ad-ware, spyware or any other form of malicious or undesirable code.

  3. 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.

Financial

  1. 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.

  2. 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.

  3. 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.

  4. You are responsible for timely payment of the Charges for Hosting services regardless of non-receipt or loss of invoice.

  5. If you fail to pay any amount due to us on the date that payment is due:
    1. 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
    2. 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;

Suspension

  1. 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.

Liability

  1. 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.

  2. We will not be liable to you (in contract, tort or otherwise) for any:
    1. loss of data, loss of profits, loss of revenue, loss of goodwill or loss of business or opportunity;
    2. indirect, consequential or special loss, damage, cost or expense;
      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.

  3. 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.

  4. 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.

Confidentiality

  1. Each party ("First Party") will maintain as confidential at all times, and will not at any time, directly or indirectly:
    1. disclose or permit to be disclosed to any person;
    2. use for itself; or
    3. 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.
      Intellectual Property

  2. Unless otherwise agreed in writing between you and us, the following ownership arrangements for Intellectual Property will apply, as between you and us:
    1. you (or your relevant licensors) will retain ownership of the Intellectual Property rights in the Content;
    2. 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
    3. 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 ("Supplied IP").

  3. 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.

  4. 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

    1. 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.
    2. 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.

    Standard service

    1. 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.
    2. 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.
    3. 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.

  5. 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.

General

  1. 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.

  2. 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).

  3. 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 other person.

  4. 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 withheld).

  5. 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.

  6. 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.
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