We agree to supply Services to you on the following Terms and Conditions:

1. Definitions

1.1 In these Terms and Conditions, the following words shall have the meanings specified:

Additional Services: means additional services relating to marketing and development of the Services to be provided by us following Completion, as set out in item 2 of the Specific Terms and Conditions.

Change Control Document: means the document sent to you by us if there are changes to the estimated Contract Price or Completion Dates, that will advise you on how we recommend we should proceed with the Services. Completion: means the date we receive full payment by you of the Contract Price relevant to the Services.

Completion Dates: means the dates specified in the Service Specifications for the interim and final completion of the Services.

Contract: means the agreement between you and us as set out in these

Terms and Conditions and the attached Specific Terms and Conditions. This Contract overrides any other agreement between you and us, and applies to all Services provided to you.

Contract Price: means the price for the Services and the Additional Services specified in item 5 of the Specific Terms and Conditions to this Contract.

Extra Charges: means a charge in accordance with our standard rates in

effect from time to time.

Intellectual Property Rights: includes copyright, look and feel, trade marks, registered designs, logos, business concepts and ideas, photographs, business processes, development plans, graphic design, marketing strategy, patents, semiconductor or circuit layout rights (together with any applications for any of them) including all forms of computer code and any other devised, developed or acquired by us or applied in the provision of the Services or Additional Services, and any other property of a similar kind.

Online Membership: means your free online membership including your

username and password provided by us to you that provides you with information on the status of the provision of the Services and any Additional Services.

Quotation: means the quotation provided by us to you for an estimate of our Services and any Additional Services, as may be amended in accordance with clause 3.1.2 of this Contract, as attached to this Contract.

Services: means the development and implementation of a business concept for you by us, and may include design, photography, branding, advertising and marketing for your business, as may be amended by the parties from time to time, as set out in item 1 of the Specific Terms and Conditions attached to this Contract.

Service Specifications: means the specifications for the Services and Additional Services set out in item 3 of the Specific Terms and Conditions attached to this Contract.

Start Date: means the date you sign this Contract for us to provide the

Services to you.

Third Party Materials: means textual, graphical, audio or like materials, together with any software, which is incorporated into the Services we provide to you.

4.3 we are required to perform the Services in circumstances other than those expressly or reasonably anticipated in relation to a contract of a similar nature;

4.3.3 you make changes to the Service Specifications; or

4.3.4 there is a change in the timing or complexity of the Services,

(Delay Event) and such circumstances are not the result of a breach of this Contract by us, and then we shall be entitled to make an Extra Charge. If we are able to anticipate a Delay Event, we will endeavour to send you a Change Control Document before we make such an Extra Charge.

4.4 You acknowledge that once you have paid the total Contract Price to us on Completion, you will not be entitled to any refund from us (subject to any rights you may have for any breach by us of this Contract).

5. What we provide you

5.1 We shall provide the Services following any reasonable directions from you as contained in the Service Specifications.

5.2 We will make every effort to provide you with relevant updates informing you of the stage the Services are at.

5.3 We will endeavour to send you a Change Control Document in the event we reasonably forsee that a Delay Event may occur, advising you on how we recommend you should proceed in relation to the Services. If we are able to in the circumstances, (and there has been no breach by you which would cause such a delay or cost), we would wait to hear from you before continuing with the Services. You undertake to respond with your instructions to us relating to our Change Control Document within 3 days of you receiving the Change Control Document.

5.4 We warrant that we will provide the Services with due skill and care and that

the material that we provide (not including any of your material that we have incorporated) will not infringe the Intellectual Property Rights of anyone else.

5.5 If you suspect a software deficiency associated with your web site, you must

on request from us give us a documented example of the defect or error in question.

6. Completion Dates

6.1 We shall use reasonable endeavours to adhere to the Completion Dates.

6.2 You acknowledge that a Delay Event may occur which may change the

Completion Dates and the Contract Price.

6.3 You shall have no remedy against us in relation to delayed completion of a Completion Stage, or failure to complete a Completion Stage, where such failure or delay is the direct or indirect result of any act or omission by you or a breach by you of this Contract.

6.4 If we are unable to adhere to any Completion Stage as a direct or indirect result of an act or omission by you or a breach by you of this Contract, we may:

6.4.1 make an Extra Charge for time, overtime, travel, materials, extra computer time or resource rationalisation resulting directly or indirectly from such act, omission or breach; and

6.4.2 if such act, omission or breach causes delay exceeding 30 days beyond the date of the final Completion Stage, terminate this Contract, whereupon we may pursue such remedies as may be available under this Contract or at law.

7. Your obligations to us

User: means a person other than you or us who seeks access to a web site7.1 Unless otherwise agreed in writing, you shall, in addition to any other
over the Internet.

We: means Julinda Enterprises Limited, trading as Social Media Switch and

includes our parents, subsidiaries, representatives and employees and us or our shall have corresponding meanings.

You: means the company, person, business or entity named in the Specific Terms and Conditions attached to this Contract, and who is obtaining and has an obligation to pay for the Services, or programs, data or equipment within the Services, and your shall have a corresponding meaning.

2. Term

2.1 This Contract starts on the Start Date and continues until Completion, unless terminated in accordance with clause 11.

3. Quotations

3.1 You acknowledge that:

3.1.1 Our Quotations are an estimate of our Contract Price only and is valid for 30 days from the date it is given to you; and

3.1.2 every Quotation is subject to withdrawal or amendment at any time by us prior to acceptance by you.

4. Payment

4.1 You will be invoiced for the Contract Price at the rate and in the manner specified in item 5 of the Specific Terms and Conditions. Every amount invoiced shall be paid in cleared funds to us without any set off or deduction by the 20th of the following month. Unless otherwise spe

4.2 If payment is not made when due, we reserve the right to charge interest on the total amount outstanding at the rate of 2% per calendar month or part calendar month until payment is made in full.

4.3 Without limiting clause 6.4, if:

4.3.1 the provision of the Services is delayed; or

Terms of Trade

obligations expressed in this Contract, have the following responsibilities:

7.1.1 provision of all data to be incorporated into your web site;

7.1.2 provision of all logos, designs, graphics, photography, video, film, audio and related materials to be incorporated into your web site, branding and any necessary intellectual property licenses; and

7.1.3 ongoing updates and management of your website and branding.

7.2 You shall ensure that we are given such information, facilities, services and accessories as we require to enable us to comply with our obligations under this Contract.

7.3 We shall not be responsible for any deficiency or alleged deficiency in our provision of Services which is attributable to;

7.3.1 incorrect information provided by you, either under this clause 7 or otherwise; or

7.3.2 failure by you to provide relevant information, either under this

clause 7 or otherwise.

7.4 You undertake to ensure that any material provided to us for inclusion on your web site:

7.4.1 does not infringe the Intellectual Property Rights of any person;

7.4.2 is not obscene, offensive, defamatory or unsuitable for people under the age of 18 years; and

7.4.3 does not comprise, and cannot be used for, any illegal or fraudulent purpose or activity.

7.5 Nothing in this clause 7 shall affect our right to exercise our own judgement
and utilise our creative skills as we consider most appropriate in order to deliver the Services and Additional Services.

8. Intellectual Property Rights

8.1 Subject to clause 8.2, the Intellectual Property Rights in the products of the Services (other than any person’s moral rights) shall vest in you on Completion.
8.2 Notwithstanding clause 8.1, you acknowledge that there is no assignment of
the Intellectual Property Rights in:

8.2.1 any pre-existing material (including, without limitation, text, designs, our software, documentation, templates, library code and data) which is incorporated into or which has been used in the course of developing any product of the Services; or

8.2.2 the User interface of any web site we create for you.

8.3 We grant you a perpetual royalty free licence to use the items referred to in clauses 8.2.1 and 8.2.2 provided that you do not sell, license, distribute or attempt to do any of those things in respect of those items.

8.4 You shall be responsible for:

8.4.1 obtaining all necessary permission, authorisations, licences and consents in relation to the use and incorporation of Third Party Materials into your web site; and

8.4.2 payment of all royalties or licence fees associated with the use of a third party’s Intellectual Property Rights in connection with your web site.

9. Confidentiality

9.1 Without prejudice to any existing agreements between you and us relating to confidentiality, you agree that you will (either during or following termination of this Contract), treat as strictly confidential our Intellectual Property Rights and any other confidential or sensitive information belonging to us, including our business activities and practices, client details, database and software programmes, and will not disclose any such confidential information to third parties unless you have prior written approval from us.

10. Action on breach

10.1 If you breach the Contract, then we may, without notice and without prejudice to other rights we may have at law or under this Contract, take all or any of the following steps:

10.1.1 Demand payment of all amounts due to us even if time of payment has not fallen due.

10.1.2 Require security for such obligations before further Services are

provided to you, including requiring you to procure the personal guarantees of your directors and shareholders for your obligations.

10.1.3 Withhold supply of Services to you.

10.1.4 Charge interest for late payment on the amount invoiced at 2% per month calculated on a daily basis from the date payment is due until full payment is actually made, compounding annually.

10.1.5 Require you to pay all expenses and legal costs incurred or

suffered by us in collection of the overdue account. The charging of this sum does not imply the granting of an extension of credit.

10.1.6 Terminate this Contract.

11. Termination

11.1 Without limiting the generality of any other clause in this Contract, we may, without notice and without prejudice to other rights we may have at law or under this Contract, terminate this Contract if:

11.1.1 You become, threaten or resolve to become, or are in jeopardy of becoming, subject to any form of insolvency administration;

11.1.2 Being a partnership, you dissolve, threaten or resolve to

dissolve, or are in jeopardy of dissolving;

11.1.3 Being a natural person, die; or

11.1.4 You cease, or threaten to cease, to conduct your business in the normal manner.

11.2 Upon termination of this Contract, we may:

11.2.1 Repossess any of our property in your possession, custody or control.

11.2.2 Retain any moneys paid by you.

11.2.3 Demand payment of all amounts due to us even if time of payment has not fallen due.

11.2.4 Cease providing the Services and be regarded as discharged from any further obligations under this Contract.

11.2.5 Pursue any other rights we may have at law or under this


11.2.6 Terminate any other contract we have with you including, in particular, any web site hosting arrangements.

12. Implied Terms

12.1 Subject to clause 12.2, any condition or warranty which would be implied in this Contract is excluded.

12.2 Where legislation implies in this Contract any condition or warranty, and

that legislation avoids or prohibits provisions in a contract excluding or modifying the application of, exercise of, or liability under, such condition or warranty, the condition or warranty shall be deemed to be included in this Contract. However, our liability for any breach of such condition or warranty shall be limited, at our option, to one or more of the following:

12.2.1 The supplying of the Services again; or

12.2.2 The payment of the cost of having the Services supplied again.

13. Consumer Guarantees Act/Fair Trading Act

13.1 You confirm that you are not a consumer for the purposes of the Consumer Guarantees Act 1993 and are acquiring the Services for business purposes. You shall not do anything, or omit to do anything, the result of which may

give rise to liability for us under the Consumer Guarantees Act 1993 or the Fair Trading Act 1986, and shall indemnify us for any such liability and all costs and expenses in respect of any claim. You shall not hold yourself out as our agent or servant to any third party.

14. Liability

14.1 We (including our directors, shareholders, employees, contractors and agents) shall not be liable for any loss or damage, including any loss of profits or any consequential, indirect or special loss, damage or injury of any kind, suffered by you arising directly or indirectly from any breach of any our obligations resulting from, or in connection with, any contract or from any cancellation of any contract or from any negligence on our part, our servants, agents or contractors, nor shall we be liable for any loss, damage or injury caused to your servants, agents, contractors, customers, visitors, tenants, trespassers or other persons (whether similar to the foregoing or not) arising as abovementioned.

14.2 If for any reason we do have liability to you or any third party, the maximum extent of that liability is not to exceed the amount paid by you to us for the Services the subject of that claim and any further liability shall be met by you.

14.3 You warrant that you have not relied upon any representation made by us which is not expressly stated in this Contract or upon any descriptions, illustrations or specifications contained in any document, including publicity material, produced by us.

15. Indemnity

15.1 You agree to indemnify us, and keep us indemnified against, any action, claim, demand, liability, damages, costs (including our legal costs) or expenses arising out of or in connection with:

15.2 Any alleged infringement of any third party’s Intellectual Property Rights of any third party in respect of any material supplied by you for inclusion by us in the provision of Services for you.

15.3 Any alleged infringement of any laws including those relating to data privacy, privacy of personal information, international communications and exportation of technical or personal data in respect of any material supplied by you for inclusion by us in the provision of Services for you.

15.4 Your failure to obtain any necessary permission, authorisation, licence or

consent of a third party in relation to the use and incorporation of Third
Party Materials into your web site.

15.5 Any modification or alteration of your web site without our prior written consent.

15.6 Any breach by you or your employees, agents, contractors or persons

using your Online Membership of your obligations under this Contract.

15.7 Any wilful, unlawful or negligent act or omission by you or your employees, agents or contractors.

16. Disputes

16.1 Any dispute or difference between you and us regarding this Contract or its termination which cannot be settled amicably and in good faith shall, at the instance of either you or us, be referred for mediation to an accredited mediator appointed by the Chairman for the time being of the New Zealand branch of LEADR (Lawyers Engaged in Alternative Dispute Resolution). Each party agrees to diligently and in good faith co-operate and participate in the mediation process.

16.2 The costs of the mediator appointed under clause 16.1 shall be shared equally between you and us or as the mediator sees fit.

17. Force majeure

17.1 We are not liable to you as a result of any failure to supply any Services, or for any other failure to perform any of our obligations under any contract or otherwise, where that failure or delay is directly or indirectly occasioned by any causes beyond our reasonable control including, without limitation:

17.2 Any failure or delay by you in performing any of your obligations under any contract; or

17.3 Any actions or omissions of our subcontractors or suppliers; or

17.4 Any failure, delay or inability to obtain any necessary licenses; or

17.5 Any prohibitions or restrictions of a legislative or governmental nature;


17.6 Fire, flood, earthquake, or other similar circumstance.

18. No variation

18.1 No variation to the Contract shall be valid unless signed by one of our authorised officers.

19. No assignment

19.1 You may not assign the benefit of this Contract without our prior written consent.

20. Governing law

20.1 This Contract is governed by, and construed in all respects in accordance with, New Zealand law and the parties submit to the exclusive jurisdiction of the Courts of New Zealand.

Terms of Trade