Definitions

1. “Caddie” means Caddie© its successors and assigns or any person acting on behalf of and with the authority of Caddie©.
2. “Client” means the person/s requesting Caddie to provide the Services as specified in any invoice, document or order, and if there more than one person requesting the Services is a reference to each person jointly and severally.
3. “Services” means all Goods (which includes any files, information, printed or virtual material, data or software, models) or Services (which includes any advice or recommendations, technical service and support and training, etc.) supplied by Caddie to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
4. “website” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
5. “Prohibited Content” means any content on any advertising media that:
   1. is, or could reasonably be considered to be, in breach of the Broadcasting Act 1989; the Fair Trading Act 1986; or any other applicable law or applicable industry code; or
   2. contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
   3. is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights (including, but not limited to, the distribution of music files or any other material in which the Client does not own the copyright).
6. “Price” shall mean the cost of the Services (plus any Goods and Services Tax (“GST”) where applicable) as agreed between Caddie and the Client subject to clause 4 of this contract.

Acceptance

1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by Caddie.
2. These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Caddie.
3. These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on Caddie’s Website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
4. Once accepted by the Client, Caddie’s quotation shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, Caddie shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
5. Any advice, recommendations, information, assistance or service provided by Caddie in relation to Services provided is given in good faith, is based on information provided to Caddie, and Caddie’s own knowledge, and experience. Whilst it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services, human error is possible under these circumstances, and Caddie shall make all effort to offer the best solution to the Client.
6. The Client accepts and acknowledges that copyright is retained by Caddie on all design work and other Services provided by Caddie including text, images, ideas, models, visuals and illustrations until all costs have been settled.
7. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.

Change in Control

1. The Client shall give Caddie not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Caddie as a result of the Client’s failure to comply with this clause.

Authorised Representatives

1. The Client acknowledges that Caddie shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to Caddie, that person shall have the full authority of the Client to order any Services and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to Caddie for all additional costs incurred by Caddie (including Caddie’s profit margin) in providing any Services or variation/s requested thereto by the Client’s duly authorised representative.

Price and Payment

1. At Caddie’s sole discretion the Price shall be either:
   1. as indicated on any invoice provided by Caddie to the Client; or
   2. Caddie’s current price at the date of provision of the Services as indicated on Caddie’s pricelist; or
   3. Caddie’s quoted price which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
2. A copy of the written estimate or quotation is to be signed and dated by the Client to indicate acceptance and should be returned to Caddie. As an alternative, the Client may send an official order for the Services via email in reply to the estimate or quotation which will imply the Client’s acceptance of Caddie’s terms and conditions. The Client accepts that no work will be commenced until acceptance has been supplied to Caddie as per this clause.
3. Additional and/or Varied Services:
   1. Caddie agrees that there will be no charge in the preparation of the initial quotation (however any site visits may be chargeable), which may include Client discussions, project scoping, research, testing and business analysis, etc. However, in some instances the aforementioned services may be charged to the Client additionally (at Caddie’s sole discretion). In the event the Client requires proofs, mock-ups, layouts, samples or dummies or printed, typewritten or other good copy and/or edits, this shall be invoiced at Caddie’s hourly rate unless specified otherwise in the initial quotation, therefore, this variation shall be detailed on the invoice as per sub-clause (d);
   2. all work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client;
   3. where the performance of any contract with the Client requires Caddie to obtain products and/or services from a third party, the contract between Caddie and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to Caddie, and the Client shall be liable for the cost in full including Caddie’s margin of such products and/or services;
   4. Caddie reserves the right to amend the Price where there is any variation to the accepted plan of scheduled Services, or instructions/specifications, which will be charged for on the basis of Caddie’s standard hourly rates (and double such rate for any Services provided outside Caddie’s normal business hours) and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion;
   5. Caddie shall not be held responsible for any amendments made by any third party before or after a design is published; and
4. At Caddie’s sole discretion a non-refundable deposit of up to fifty percent (50%) may be required.
5. Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by Caddie, which may be:
   1. on completion of the Services;
   2. prior to commencement of the Services;
   3. by way of instalments/progress payments in accordance with Caddie’s payment schedule;
   4. the date specified on any invoice or other form as being the date for payment; or
   5. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Caddie.
6. Publication and/or release of the work done by Caddie shall only be released once the funds have been cleared or honoured.
7. Payment may be made by bank cheque, electronic/online banking, or by any other method as agreed to between the Client and Caddie.
8. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Caddie nor to withhold payment of any invoice because part of that invoice is in dispute.
9. Unless otherwise stated the Price does not include GST. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

Provision of the Services

1. Any time specified by Caddie for provision of the Services is an estimate only and Caddie will not be liable for any loss or damage incurred by the Client as a result of provision being late. However both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that Caddie is unable to provide the Services as agreed solely due to any action or inaction of the Client, then Caddie shall be entitled to:
   1. charge the Client additionally for re-providing the Services at a later time and date; or
   2. subject to clause 20.4, terminate the agreement.

Website Development

1. Caddie’s Responsibilities:
   1. upon acceptance of Caddie’s quotation, and in accordance with this agreement, Caddie will:
      1. use its best endeavours to develop the Website in accordance with the Client’s instructions and specifications; and
      2. to the extent specified in the Client’s instructions and specifications, negotiate and procure any third-party agreements on behalf of the Client.
   2. the Client acknowledges that the development of the website by Caddie is based upon current technology platforms (e.g. internet browsers, mobile, android, etc.), and therefore Caddie cannot guarantee that website features and /or content will display correctly, and that the overall visual experience will be the same, for use by either superseded or presently undeveloped technology.
2. Client’s Responsibilities:
   1. the Client will, in addition to any other obligations expressed in this agreement, have the following responsibilities:
      1. provision of all content (including data, logos, designs and/or graphic and related materials) to be incorporated into the website;
      2. provision of any other information, ideas or suggestions which are to be expressly considered by Caddie in developing the website.
   2. the Client will ensure that Caddie is given such information and assistance as Caddie reasonably requires to enable Caddie to construct and maintain the website.
   3. Caddie will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the website which is attributable to:
      1. incorrect information provided by the Client, either pursuant to this clause or otherwise; or
      2. failure by the Client to provide relevant information, either pursuant to this clause or otherwise; or
      3. any third-party products and/or services used by Caddie in creation of the Website.
3. Proofreading:
   1. whilst every care is taken by Caddie to carry out the instructions of the Client, it is the Client’s responsibility to undertake proofreading and provide feedback (where necessary). Caddie shall be under no liability whatever for any errors not corrected by the Client during the proofreading stages, and:
      1. should the Client’s alterations require additional proofs this shall be invoiced as an extra;
      2. if, at any stage the Client is unhappy with the direction the Services are taking, the Client can cancel this agreement and pay Caddie for work completed up to that date of cancellation.
   2. when style, type or layout is left to Caddie’s judgement and the Client makes further alterations, this will be invoiced as an extra.
   3. Caddie will make one (1) set of minor changes at no extra cost within fourteen (14) days of the review period. Minor changes include text changes and small adjustments to placement of items on the website. It does not include changes to any navigation features. Any minor changes need to be notified to Caddie via email.
   4. should the Client fail to notify Caddie in writing of any amendments within fourteen (14) days from the commencement of the review period, Caddie shall deem that the original draft as being acceptable.
4. Client’s Property and Materials:
   1. graphic files should be supplied in an editable, vector digital format and photographs in a high resolution digital format. If the Client chooses to purchase stock photographs, Caddie can suggest stock libraries.
   2. in the case of property and materials left with Caddie without specific instructions, Caddie shall be free to dispose of them at the end of twelve (12) months after their receiving them and to accept and retain the proceeds, if any, to cover their own costs in holding and handling them.
   3. where materials or equipment are supplied by the Client, Caddie accepts no responsibility for imperfect work caused by defects in or unsuitability of such materials or equipment.
5. Maintenance:
   1. Caddie will provide the Maintenance Services in accordance with the maintenance terms set out in Caddie’s maintenance schedule.

Hosting Services

1. “Live Date” means the date in which Caddie provides the Hosting Services as per initial acceptance of Caddie’s quotation.
2. Hosting services shall only be used by the Client for lawful purposes. Any use which violates any applicable national or international laws is strictly prohibited (e.g. posting or transmitting any unlawful, threatening, abusive, libellous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind – including, but not limited to, any transmission constituting or encouraging conduct that would constitute a criminal offense or give rise to civil liability).
3. Where the Client is changing from another hosting provider, the install and set-up of the website on Caddie’s web servers shall be charged to the Client additionally.
4. Caddie will, at its sole cost and expense:
   1. host the Website on Caddie’s web servers;
   2. ensure that from the Live Date:
      1. sufficient capacity is maintained on Caddie’s web server to enable users access to the website in a timely manner;
      2. the website is accessible to users in accordance with the agreed service levels (subject to reasonable downtime for server maintenance which has been notified to the Client prior to the commencement of the downtime or (where applicable) Maintenance;
   3. provide the Client with reasonable access to the website to perform maintenance services.
5. Caddie will not:
   1. alter or amend, or permit any person to alter or amend the website without the written consent of the Client;
   2. post or display on the website any advertisement, sponsorship or promotion without the written consent of the Client;
   3. use any user data for marketing, referral or other purposes except as expressly authorised by this agreement;
   4. sublicense, rent, timeshare, lease, lend or grant any rights to use the website; or
   5. assign, transfer or authorise anyone else to exercise the rights in any licence granted pursuant to this agreement.
6. Caddie will make best efforts to ensure that the Client receives continuous and uninterrupted Services (including network or hosting servers) during the term of this agreement, however Caddie does not in any way warrant or otherwise guarantee the availability of the Services, which shall be subject to regularly scheduled maintenance cycles, and many events/circumstances beyond the control of Caddie. In no event though, shall Caddie be liable to the Client for damages (including loss of income) resulting from or in relation to any failure or delay (including server downtime, programming errors, lack of connection or slow connection) of Caddie to provide Services under this agreement, or any loss of data, if such delays or failures are due to circumstances beyond our control. Such a failure or delay shall not constitute a default under this agreement.
7. Website Maintenance Services:
   1. subject to clause (b), Caddie will provide the website Maintenance Services in accordance with the maintenance terms set out in Caddie’s maintenance schedule.
   2. the Client will procure all necessary authorisations, licences and consents to enable Caddie to have access to the website in order to provide the Maintenance Services.
   3. any time for content and imagery changes is provided on a ‘use it or lose it’ basis and does not accumulate nor carry over. 
      
8. Client’s Obligations:
   1. the Client will, at its sole cost and expense:
      1. provide the content to Caddie, in such form as reasonably prescribed by Caddie from time to time, and hereby grants Caddie a non-exclusive, worldwide, irrevocable licence to use such content for the purposes of hosting the website;
      2. do all things reasonably necessary to enable Caddie to host the Website on Caddie’s web server;
      3. change the type of hosting account used if that account is deemed by Caddie to be unacceptable because of poor service, lack of bandwidth or in any other way insufficient to support the website;
      4. is responsible for any fees payable and due to previous hosting organisations engaged by the Client;
      5. ensure that content supplied to Caddie do not contain Prohibited Content, a link to any website that contains Prohibited Content, or any viruses, trojan horses, worms, time bombs, cancel bots or any other software program or routine designed for or capable of interfering with the operation of the Hosting Services.
   2. the Client will not:
      1. do anything that prevents or hinders Caddie from providing Hosting Services to any other person.
9. Limitation of Liability for Hosting Services
   1. In the event the Hosting Services provided to the Client are disrupted or malfunction for any reason, Caddie’s liability shall be limited to damages which under no circumstances shall exceed the amount due and payable by the Client to Caddie for the Hosting Services during the period of disruption or malfunction.

Risk and Limitation of Liability for Client Data

1. The Client acknowledges and agrees that Caddie shall not be held responsible or liable for:
   1. any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of Caddie;
   2. any loss, corruption, or deletion of files or data (including, but not limited to software programmes) resulting from illegal hacking of Services provided by Caddie.
   3. any loss or damage to the Client’s software or hardware caused by any ‘updates’ provided for that software.
2. Caddie, its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by Caddie to the Client.
3. Publicity
4. (a) All media releases and public announcements by either party relating to these terms and conditions, or the Services (including subject matter and related Materials), shall be coordinated with the other party and approved jointly by the party prior to release.
   (b) Caddie shall not be held responsible for the use of Services as referred to in by media, once information approved by the Client has been submitted to the media.
   (c) When reactive PR is required, the Client agrees that Caddie can act on the Client’s behalf, if required, in line with the provision of Services under these terms and conditions, based on information previously supplied by the Client and Caddie’s understanding of the Client’s instructions.
5. Public Access:
   1. the Client understands that by placing information on the website, such information may be accessible to all internet users. Caddie does not (unless expressly requested by the Client) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity. The Client assumes full responsibility for their use of the Services, and it is the Client’s sole responsibility to evaluate the accuracy, completeness and usefulness or all opinions, advice, services, and other information, and the quality and merchantability of all Services provided by Caddie, or on the internet generally.
6. Defects, Errors and Omissions:
   1. the Client shall inspect/review the Services on provision and shall within seven (7) days of such time notify Caddie of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford Caddie an opportunity to inspect/review the Services within a reasonable time following such notification if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
   2. for defective Services, which Caddie has agreed in writing that the Client is entitled to reject, Caddie’s liability is limited to either (at Caddie’s discretion) replacing the Services or rectifying the Services, provided that the Client has complied with the provisions of sub-clause (a).

Title

1. Caddie and the Client agree that the Client’s obligations to Caddie for the supply of Services shall not cease (and ownership of any Goods shall not pass) until:
   1. the Client has paid Caddie all amounts owing to Caddie for the Services; and
   2. the Client has met all other obligations due by the Client to Caddie in respect of all contracts between Caddie and the Client.
2. Receipt by Caddie of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then Caddie’s ownership or rights in respect of the Services, and this agreement, shall continue.
3. It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 10.1:
   1. the Client is only a bailee of the Goods and must return the Goods to Caddie on request.
   2. the Client holds the benefit of the Client’s insurance of the Goods on trust for Caddie and must pay to Caddie the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
   3. the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Caddie and must pay or deliver the proceeds to Caddie on demand.
   4. the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Caddie and must sell, dispose of or return the resulting product to Caddie as it so directs.
   5. Caddie may recover possession of any Goods in transit whether or not delivery has occurred.
   6. the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Caddie.
   7. Caddie may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Client.

Personal Property Securities Act 1999 (“PPSA”)

1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
   1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
   2. a security interest is taken in all Services and/or all collateral (account) – being a monetary obligation of the Client for the Services – that have previously been provided, and that will be provided in the future, by Caddie to the Client.
2. The Client undertakes to:
   1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Caddie may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
   2. indemnify, and upon demand reimburse, Caddie for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made thereby;
   3. not register a financing change statement or a change demand without the prior written consent of Caddie.
3. Caddie and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
4. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
5. Unless otherwise agreed to in writing by Caddie, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
6. The Client shall unconditionally ratify any actions taken by Caddie under clauses 11.1 to 11.5.

Client’s Disclaimer

1. The Client hereby disclaims any right to rescind, or cancel any contract with Caddie or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Caddie, and the Client acknowledges that the Services are bought relying solely upon the Client’s skill and judgment.

Intellectual Property and Confidentiality

1. Where Caddie has designed, drawn or developed Services (including the website) for the Client, Caddie retains full intellectual property ownership of the Services, including the copyright in any designs and drawings and documents, and Caddie hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use the Services solely in relation to the operation of the Client’s own business, conditional upon the Client fulfilling their obligations under this agreement (including, but not limited to, the full payment of the Price).
2. Subject to the Copyright Act 1994 and the conditions therein, where Caddie or their subcontractor has provided the Client with a licence for use on any design, copywriting, drawing, image, illustration, idea or code created for the Client, the licence shall be for use by the Client on a one-time only basis and may not be modified, re-used, or re-distributed in any way or form without the express permission of Caddie and any of its relevant subcontractors.
3. All design work where there is a risk that another party makes a claim, should be registered by the Client with the appropriate authorities prior to publishing or first use or searches and legal advice sought as to its use. Caddie shall not be held responsible for any or all damages resulting from such claims.
4. The Client hereby authorises Caddie to utilise images of the Services created by Caddie in advertising, marketing, or competition material by Caddie including, but not limited to:
   1. the Client permitting Caddie to place a small credit on printed material, exhibition displays, advertisement and/or link to Caddie’s own website on the Client’s website, which shall usually be in the form of a small logo or line of text placed towards the bottom of the page;
   2. allowing Caddie to place websites and other designs, along with a link to the Client’s website on Caddie’s own website for demonstration purposes and to use any designs in Caddie’s own publicity.
5. The Client shall indemnify Caddie against any claims by third parties for patent, trademark, design or copyright infringement, directly or indirectly arising out of the design, workmanship, material, construction, or use of the Services or any other deficiency therein. Where the Client has supplied drawings sketches, files or logo’s to Caddie, the Client warrants that the drawings, sketches, files or logo’s do not breach any patent, trademark, design or copyright, and the Client agrees to indemnify Caddie against any action taken by a third party against Caddie.
6. Notwithstanding anything herein, the Intellectual Property Rights in Caddie’s Services do not vest in the Client and there is no assignment of these Intellectual Property Rights to the Client. Caddie hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use and reproduce the Services for the purposes of this agreement only, and solely for the operation of the Client’s business however, the Client shall not use nor make copies of such Intellectual Property in connection with any work or business other than the work or business specified in writing to Caddie unless express approval is given in advance by Caddie. Such license shall terminate on default of payment or any other terms of this agreement by the Client.
7. All Flash, PHP, Javascript, HTML and Dynamic HTML coding and other supplied code (if any) remains the intellectual property of Caddie. Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright.
8. Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.

Consumer Guarantees Act 1993

1. If the Client is acquiring Services for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Services by Caddie to the Client.

Default and Consequences of Default

1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Caddie’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
2. If the Client owes Caddie any money the Client shall indemnify Caddie from and against all costs and disbursements incurred by Caddie in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Caddie’s collection agency fees, and bank dishonour fees).
3. Further to any other rights or remedies Caddie may have under this contract, if a Client has made payment to Caddie, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Caddie under this clause 19 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
4. Without prejudice to any other remedies Caddie may have, if at any time the Client is in breach of any obligation (including those relating to payment, whether or not the payment is due to Caddie) Caddie may suspend or terminate the provision of Services to the Client, (this includes but is not restricted to, withholding domain codes, passwords and Goods, and/or blocking or restricting public and Client access to the website, or removing the website from the web completely) and any of its other obligations under the terms and conditions. Caddie will not be liable to the Client for any loss or damage the Client suffers because Caddie has exercised its rights under this clause.
5. Without prejudice to Caddie’s other remedies at law Caddie shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Caddie shall, whether or not due for payment, become immediately payable if:
   1. any money payable to Caddie becomes overdue, or in Caddie’s opinion the Client will be unable to make a payment when it falls due;
   2. the Client has exceeded any applicable credit limit provided by Caddie;
   3. the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
   4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

Cancellation and Termination

1. Without prejudice to any other remedies Caddie may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Caddie may suspend or terminate the supply of Services to the Client. Caddie will not be liable to the Client for any loss or damage the Client suffers because Caddie has exercised its rights under this clause.
2. Caddie may cancel these terms and conditions or cancel provision of the Services at any time before the Services are provided by giving written notice. Caddie shall not be liable for any loss or damage whatever arising from such cancellation.
3. At Caddie’s sole discretion the Client may cancel provision of the Services. In the event that the Client cancels provision of the Services the Client shall be liable for any costs incurred by Caddie (including, but not limited to, loss of profit) up to the time of cancellation.
4. Where the Client cancels an order:
   1. the initial notification may be by telephone or email but must be confirmed in writing within fourteen (14) days;
   2. the Client shall be invoiced for all work completed over and above the non-refundable deposit as per clause 5.4;
5. Should the Client, for any reason, cause the Services to be delayed for more than three (3) months after the acceptance date, this agreement will be terminated by Caddie (at their sole discretion) and all Services completed, but not billed or paid, will be payable in full within fourteen (14) days from the date of the submitted invoice.
6. If the Client fails to comply with any of the provisions of this agreement and does not rectify such non-compliance within seven (7) days of Caddie giving notice either in writing, via fax or email, then Caddie may without prejudice to any other rights or remedies, and without being liable to the Client for any loss or damage that may result, give notice to the Client terminating their right to use the website, Software and Services. Upon termination of the agreement, the Client shall lose all right to use the website and products, and shall forthwith deliver the Goods to Caddie and destroy all copies made. The Client shall certify in writing that the copies have been destroyed.
7. In the event the Services are terminated the Services can be reinstated under a new contract at the prevailing rates; however no credits or discounts will be granted, and reinstatement costs shall apply.
8. Either Party may terminate the Fixed Price Agreement for Services or any one or more Schedules immediately by written notice being not less than thirty (30) days’ of their intent to terminate at any time after the initial contract period (as specified in Caddie’s quotation or Service Agreement) is ended.
9. Where the Client wishes to terminate the Fixed Price Agreement during the term stipulated, the Client must pay to Caddie the remaining Fixed Price Agreement fees which would otherwise have been payable to Caddie during the Fixed Price Agreement term unless otherwise agreed.

Privacy Act 1993

1. The Client authorises Caddie or Caddie’s agent to:
   1. access, collect, retain and use any information about the Client;
      1. (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
      2. for the purpose of marketing products and services to the Client.
   2. disclose information about the Client, whether collected by Caddie from the Client directly or obtained by Caddie from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
2. Where the Client is an individual the authorities under clause 17.1 are authorities or consents for the purposes of the Privacy Act 1993.
3. The Client shall have the right to request Caddie for a copy of the information about the Client retained by Caddie, and the right to request Caddie to correct any incorrect information about the Client held by Caddie.

Dispute Resolution

1. Caddie and the Client will negotiate in good faith and use their reasonable efforts to settle any dispute that may arise out of, or relate to, this agreement, or any breach thereof. If any such dispute cannot be settled amicably through ordinary negotiations, the dispute shall be referred to the representatives nominated by each party who will meet in good faith in order to attempt to resolve the dispute. Nothing shall restrict either party’s freedom to commence legal proceedings to preserve any legal right or remedy or protect and proprietary or trade secret right.

Service of Notices

1. Any written notice given under this contract shall be deemed to have been given and received:
   1. by handing the notice to the other party, in person;
   2. by leaving it at the address of the other party as stated in this contract;
   3. by sending it by registered post to the address of the other party as stated in this contract;
   4. if sent by email to the other party’s last known email address.
2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

General

1. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
2. These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Hastings Courts of New Zealand.
3. Caddie shall be under no liability whatsoever to the Client for any expenses, claims, costs (including but not limited to legal fees and commissions), damages suffered or incurred by Caddie, or indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Caddie of these terms and conditions, caused by any failure by the Client to comply with their obligations under this agreement, or that arise from any claim relating to the Services by any person that the Client authorises to use the Services, or where due to server downtime or programming errors (alternatively Caddie’s liability shall be limited to damages which under no circumstances shall exceed the Price).
4. Neither party shall assign or subcontract all or any part of their rights and obligations under this agreement without the written consent of the other party.
5. The Client agrees that Caddie may amend these terms and conditions at any time. If Caddie makes a change to these terms and conditions, then that change will take effect from the date on which Caddie notifies the Client of such change via email. The Client will be taken to have accepted such changes if the Client makes a further request for Caddie to provide Services to the Client.
6. Neither party shall be liable for any default due to fires, explosions, severe weather, industrial disputes, insurrection, requirements or regulations, or any civil or military authority, acts of war (whether declared or not), civil unrest, acts of God, earthquake, flood, riot, embargo, government act, strike, lock-out, storm, terrorism, or failure or outage of any telecommunications links or other connections forming part of the Internet which are beyond the reasonable control of either party.
7. Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.