1.0 Application

1.1 You have agreed to engage MOUNT DELUXE LIMITED to provide certain “Services” as initially set out in our Proposal. These general Terms are MOUNT DELUXE’s standard operating terms and will, together with the Proposal, be the contractual terms that apply in respect of MOUNT DELUXE’s provision of the Services to you. There is no need for you to sign these general terms in order to accept them. You will be deemed to have accepted them by instructing and/or engaging MOUNT DELUXE to provide the Services.

If you do not agree to these Terms of Trade please contact us immediately and discontinue the use of any of the products and/or services from MOUNT DELUXE.

2.0 Definitions

2.1 “MOUNT DELUXE” and “We” shall mean MOUNT DELUXE LIMITED or any agents or employees thereof.

2.2 “Client” and “You” and “Your” shall mean the client, any person acting on behalf of and with the authority of the client, or any person purchasing goods or services from MOUNT DELUXE.

2.3 “Goods” shall mean all materials, print work, web products and all pre-packaged services sold as a commodity.

2.4 “Services” shall include without limitation the provision of all creative concepts, design, website development, web and mail hosting, search engine optimisation, printing, print management services, all charges for labour, hire charges, insurance and support charges, and any fee or charge associated with the supply of services by MOUNT DELUXE to the client.

2.5 “Price” shall mean the cost of the goods or services as agreed between MOUNT DELUXE and the client subject to clause 4 of these terms and conditions of trade.

2.6 “Royalty” and “Licence” is the fee charged and the use limitations on a product sold by MOUNT DELUXE to the client.

2.7 “Copy” shall mean all text to be included in a document either printed or electronic.

2.8 “Terms” shall mean the entire Terms of Trade contained herein and include any Proposal or Project Agreement specifically relating to a project.

3.0 Collection And Use Of Information About You And Your Business

3.1 The client authorises MOUNT DELUXE to collect, retain and use any information about the client, the clients’ business, director(s), shareholder(s), Guarantor(s) and supplier(s) for the purpose of assessing the client’s credit worthiness, sending you bills, reminders, demands and recovering money owed or enforcing any rights under this contract.

3.2 The client authorises MOUNT DELUXE to disclose and any information obtained by any person to any other person, agent, or other entity for the purposes set out in clause 3.1.

3.3 Where the client(s), director(s), shareholder(s), Guarantor(s) is a natural person the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.

4.0 Proposals

4.1 Where a proposal is given by MOUNT DELUXE for goods or services:

4.2 The proposal shall be valid for a maximum of 30 days from the date of issue; and

4.3 The proposal shall be exclusive of Goods and Services Tax (GST) unless specifically stated to the contrary.

4.4 The client agrees that MOUNT DELUXE may at its discretion charge for any additional goods or services which MOUNT DELUXE in its professional capacity deems to be reasonably required in order to complete the project(s) which the client has contracted MOUNT DELUXE to complete.

4.5 Our proposal is based on the information you have provided to us. If anything changes from what you have told us we may cancel this proposal and supply you with another one.

4.6 When a project runs over time due to additional requests or otherwise, we’ll do our best to warn you in advance so you can decide how best to continue. Additional work will be charged on an hourly basis.

4.7 Our proposals are based on you supplying all wording & imagery to be used in the designs, unless we have listed this separately.

4.8 Our proposals do not include printing unless specified.

5.0 Modifications and Acceptance

5.1 MOUNT DELUXE reserves the right to change these Terms of Trade at any time without notice to you by posting changes online at www.mountdeluxe.comtermsoftrade. You are responsible for reviewing regularly information posted online to obtain timely notice of such changes. Your continued use of MOUNT DELUXE services and products following any such changes shall constitute your acceptance of these Terms as modified by the posted changes.

5.2 Any instruction(s) received by MOUNT DELUXE from the client for the supply of goods or services shall also constitute acceptance of the Terms of Trade contained herein. For new or large projects, a formal acceptance may also be signified by the signing of a Proposal or Project Agreement document. The Proposal or Project Agreement document forms part of these Terms of Trade for a specific job.

6.0 Client Approval and Authorisation of Proofs

6.1 MOUNT DELUXE will seek the approval or “sign off” of goods or services from the client for design, print, programming, copywriting, editing, proofing or any other goods or services prior to going into production, publication or delivery.

6.2 In its professional capacity you accept that MOUNT DELUXE takes all reasonable steps to ensure work is free of mistakes, errors or defects, etc. and you agree that MOUNT DELUXE, its staff and agents, are not responsible for any mistakes or deficiencies in work whether signed off by you the client, or a representative of you the client, or by MOUNT DELUXE acting as your agent.

7.0 Price

7.1 Where no price is stated in writing in a Proposal or Project Agreement or agreed to orally the goods and/or services shall be deemed to be sold at the current amount as such goods and services are sold or provided by MOUNT DELUXE at the time of the contract.

7.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the goods or services that is beyond the control of MOUNT DELUXE between the date of the contract and delivery of the goods or providing of the services.

7.3 Where a quote has been requested for a project, the Proposal provided is simply an estimation. Unless expressly stated, the final cost will be based on time and materials expended by MOUNT DELUXE to provide the service.

7.4 Expenses: Unless otherwise agreed by MOUNT DELUXE, the Proposal does not include out-of-pocket expenses incurred in respect of the Services, including (without limitation) travel expenses, telephone, printing and courier charges which will be charged to and payable by you in addition to the Proposal.

8.0 Payment

8.1 Payment for goods and/or services shall be made in full on or before the due date of the supplied Tax Invoice.

8.2 Unless otherwise arranged a 50% deposit will be required before the commencement of work with the remainder paid as monthly work to date payments and the balance paid in full on completion.

8.3 Interest may be charged on any amount owing after the due date at the rate of 5% per month or part thereof.

8.4 Where the duration of a project goes over a month, a progress invoice may be sent at the end of the month for work completed to date.

8.5 MOUNT DELUXE reserves the right to cease work on a partially completed project until invoiced progress payments have been made.

8.7 Any expenses, disbursements and legal costs incurred by MOUNT DELUXE in the enforcement of any rights contained in this contract shall be paid by the client, including any reasonable solicitor’s costs on a solicitor /client basis or debt collection agency fees.

8.8 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full unless otherwise agreed to by MOUNT DELUXE.

9.0 Our responsibilities to you

9.1 We will use our best endeavours to provide you with prompt, courteous service.

9.2 We will inform you of the processes required in order to complete your work.

9.3 We will supply you the goods, services and information you request or we will explain why we cannot meet the request.

9.4 We will keep you informed about the progress of your work.

10.0 Your responsibilities to mount deluxe

10.1 You must provide us with a clear brief or with clear instructions at the beginning of a job.

10.2 You must confirm via email if you would like to go ahead with our Proposal or, where applicable, you must complete and return the Project Agreements promptly.

10.3 You warrant that any material supplied to us for inclusion in any design work including your website does not infringe upon the intellectual property rights of a third party, and you further agree to ensure that the information you provide meets the legal requirements of the Fair Trading Act 1986, the Copyright Act 1994, the Defamation Act 1992, all other applicable laws and any relevant Advertising Codes of Practice. You also agree to indemnify us against any claim that may result from the inclusion of such materials in your project.

10.4 You must supply photography, image files and any other artwork and copy within the agreed time-frames. No artwork save template design and logos will be supplied by us unless agreed in writing prior to commencement of the works.

10.5 Where You have failed to provide material or instruction necessary to advance a project or part of a project within a satisfactory time frame, MOUNT DELUXE may adjust any “agreed to” time frames for delivery of its obligations under the contract as it sees fit, cease working on the project until such time as the required instruction is provided by You, or MOUNT DELUXE may give you notice that the project is to be terminated.

11.0 Copywriting

11.1 Unless expressly included elsewhere in writing, the supply of the text content and the editing and proofing of text content for printed and electronic documents is the client’s responsibility. If no copy is supplied by you, MOUNT DELUXE may generate appropriate copy as it deems necessary. The costs of copywriting, editing and proofing undertaken by MOUNT DELUXE will be excluded from the contract price and billed out separately at an hourly rate.

12.0 Image Costs and Royalties

12.1 Unless expressly stated elsewhere in writing, all costs associated with photography and/or finding, purchasing and management of license associated with images needed for printed or electronic documents are excluded from the price and will be billed as additional costs.

13.0 Web Hosting & Email Campaigns

13.1 MOUNT DELUXE program in html.

13.2 MOUNT DELUXE do not host, but have a preferred hosting supplier that we may suggest to you. All project management, uploading, testing and problem solving times and disbursements will also be billed to you. Any issues that arise from hosting externally are not the responsibility of MOUNT DELUXE and we accept no liability for them.

13.3 MOUNT DELUXE do not manage email campaigns, but have a preferred campaign supplier that we use (Mail Chimp). All project management, uploading, testing and problem solving times and disbursements will also be billed to you. Any issues that arise from email campaigns commissioned by you are not the responsibility of MOUNT DELUXE and we accept no liability for them.

14.0 Risk

14.1 The time agreed for delivery shall not be an essential term of this contract unless the client gives written notice to MOUNT DELUXE making time of the essence.

14.2 Where MOUNT DELUXE delivers goods or provides services to the client by instalments and MOUNT DELUXE fails to deliver or supply one or more instalments the client shall not have the right to repudiate the contract but shall have the right to claim compensation as a severable breach.

14.3 Notwithstanding clause 16, all risk in respect of the goods or services passes to the client upon delivery.

14.4 Upon delivery of the goods or services the client will insure and keep insured goods and services for their full “insurable value”.

14.5 You should note that the security of Internet, text message and e-mail is uncertain. By sending sensitive or confidential messages which are not encrypted you accept the risks of such uncertainty and possible lack of confidentiality over the Internet and other electronic communication.

14.6 Username and Password access to some products, services or content may require registration or you being allocated a user ID (username) and password that must be used whenever requested. That username and password are personal to you and you agree at all times to maintain the confidentiality of your username and password and not to disclose them to any third party. You agree that you are solely responsible for any use of the products, services, web sites and software by any person using your username and password. You agree to indemnify MOUNT DELUXE against any and all claims arising out of your failure to maintain the confidentiality of your username or password.

15.0 Title

15.1 Where the client has not paid for in full any goods or services in its possession, property of such goods shall remain with MOUNT DELUXE and:
The goods shall be held by the client as bailee; and If the goods are attached, fixed, or incorporated into any property of the client, the title of the goods shall remain with MOUNT DELUXE until the client has made payment for all goods, and where those goods are mixed with other property so as to be part of or a constituent of any new goods, title of these new goods shall deemed to be assigned to MOUNT DELUXE as security for the full satisfaction by the client of the full amount owing between MOUNT DELUXE and client.

15.2 The client gives irrevocable authority to MOUNT DELUXE to suspend any goods or services not paid for in full by the client. MOUNT DELUXE shall not be liable for costs, damages or expenses or any other losses incurred by the client or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever.

15.3 HTML code created for them once paid for in full.

15.4 The client owns one license to use that good or services for themselves only.

15.5 Source code, and other such products supplied under license to the client remain the property of MOUNT DELUXE.

16.0 Acceptance of Goods and Services

16.1 The client shall be deemed to have accepted the goods supplied and services provided unless the client notifies MOUNT DELUXE otherwise within 7 days of delivery of the goods or the providing of the services to the client.

17.0 Intellectual Property

17.1 Intellectual property is defined as: Creative concepts, customised designs, copywriting, illustration, photography, developed for the client, or Project Specification Documentation prepared for clients.

17.2 MOUNT DELUXE owns the intellectual property on all work completed by MOUNT DELUXE and reserves the right to reuse some or all of the work on other projects as MOUNT DELUXE sees fit without breaching client copyright.

17.3 Source code and other such products remain the property of MOUNT DELUXE and cannot be disseminated without the express written consent of MOUNT DELUXE.

17.4 MOUNT DELUXE reserves the right to use all goods and services sold to a client as part of its own marketing activities and to demonstrate to the market place its capabilities.

18.0 Liability

18.1 MOUNT DELUXE shall not be liable for:

• Any loss or damage of any kind whatsoever whether suffered or incurred by the client or another person whether such loss or damage arises directly or indirectly from goods or services or advice provided by MOUNT DELUXE to the client; and

• Any downtime in service provision caused by third parties to which MOUNT DELUXE is reliant on to provide the service to the client; and

• Except as provided in this contract MOUNT DELUXE shall not be liable in contract, or in tort, or otherwise for any loss, damage, or injury beyond the value of the goods or services provided by MOUNT DELUXE to the client.

18.2 The client shall indemnify MOUNT DELUXE against all claims of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of clause 18 whether caused or arising as a result of the negligence of MOUNT DELUXE or otherwise, brought by any person in connection with any matter, act, omission, or error by MOUNT DELUXE, its agents or employees in connection with the goods or services.

18.3 MOUNT DELUXE is not responsible for any future proofing of a website. The web site functionality may be affected by new web browsers that are released after the web site completion. Costs incurred to fix any incompatibilities are chargeable to the client.

19.0 Consumer Guarantees Act

19.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the client acquires goods or services from MOUNT DELUXE for the purposes of a business in terms of section 2 and 43 of that Act.

19.2 MOUNT DELUXE shall be under no liability whatsoever to maintain, repair or replace software, web site(s), web content, databases or database content, design files or any supplied equipment should any of the afore mentioned not perform as a reult of the use by the client, the clients employees agents or suppliers which do not meet the specifications of MOUNT DELUXE Limited.

20.0 Cancellation

20.1 MOUNT DELUXE shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of goods or services to the client if the client fails to pay any money owing after the due date or the client commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967, or (if the client is a company) does any act which would render it liable to be liquidation or have a receiver appointed over its property.

20.2 Any cancellation or suspension under clause 20.1 of this agreement shall not affect MOUNT DELUXE claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the client’s obligations to MOUNT DELUXE under this contract.

20.3 The client can at any time terminate any goods or services by providing 30 days notice in writing. All costs incurred up until this notification is received will be charged as outlined in this Agreement.

20.4 MOUNT DELUXE can at any time terminate any goods or services by providing 30 days notice in writing.

21.0 Miscellaneous

21.1 The client shall not assign all or any of its rights or obligations under this contract without the prior written consent of MOUNT DELUXE.

21.2 MOUNT DELUXE shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.

21.3 Failure by MOUNT DELUXE to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations MOUNT DELUXE has under this contract.

21.4 Any waiver given may only be in writing and applies only to the right and on the occasion specified in the waiver.

21.5 The law of New Zealand shall apply to this contract except to the extent expressly negatived or varied by this contract.

21.6 Where the terms of this contract are at variance with the order or instruction from the client, this contract shall prevail.

21.7 If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. Any dispute between the parties is to be dealt with in accordance with the Arbitration Act 1996. This excludes any action taken where there has been a default in payment of payments owed to MOUNT DELUXE.