1.1 These terms of engagement will apply to all services provided by Clever Kea Limited (we) subject to any different or additional terms agreed in writing with our client(s) (you).
2. Scope of the engagement
2.1 At the commencement of engagement we will send you a letter recording our understanding of the services you require Clever Kea Limited to deliver to you.
2.2 In carrying out the engagement for you we will:
2.2.1 keep you informed of all significant developments and information relating to you;
2.2.2 take all reasonable care and skill; and
2.2.3 use our best efforts to deliver the desired outcomes within agreed or anticipated timeframes and costings.
2.3 Our duties under these terms of engagement are owed solely to the client(s) who has engaged us. We do not accept any responsibility to any third parties who may be affected by our performance of the engagement, except as expressly agreed in writing between our client(s) and us.
3. Fees, charges and payment terms
3.1 Our fees will be calculated in accordance with our estimate or quotation (if applicable) and/or the hourly rates we charge for the personnel working on the engagement. We will also charge you for any payments we make on your behalf to third parties (disbursements). We reserve the right to request payment of any fees or disbursements from you in advance.
3.2 Our invoices are payable 30 days from the invoice date. Unless agreed otherwise in writing, our usual practice is to issue interim invoices on a monthly basis.
3.3 In the event that our invoice(s) are overdue, we reserve the right to suspend the engagement until the invoices are paid, require payment for future fees in advance or terminate the engagement. We also reserve the right to set-off all amounts owing to us against monies or other property we are holding on your behalf. In the event we need to take recovery action from you, you will be liable to reimburse us our actual costs of taking that action (e.g. lawyers or debt
4. Ownership of documents, intellectual property and copyright
4.1 You will own all the documents that we create on your behalf in the course of the engagement. We will own documents that we have created for our own use in performing the engagement.
4.2 We will own the copyright in all documents or works that we create in the course of the engagement but grant you a nonexclusive licence to use and copy the documents as you see fit for your own personal or commercial use. However, you may not permit any third party to copy, adapt or use the documents without our written permission.
4.3 We reserve the right to exercise a general lien over any and all documents or property we hold on your behalf while you owe us money either for services rendered or for any other reason.
4.4 We will own any online listings or web material that we have created on your behalf in the course of the engagement. You will have the option to obtain or purchase the material at the end of our agreement.
5. Confidentiality and information privacy
5.1 The parties shall treat all information made available by or on behalf of or at the request of either party in connection with any engagement as strictly private and confidential, and neither party shall divulge such information to any third party or use it in any way for its own advantage.
5.2 You grant us the right to disclose your name and address to a credit agency to perform a credit reference or to undertake credit management processes if we deem necessary.
5.3 We will comply with all applicable provisions of the Privacy Act 1993 in respect of your personal information that we hold or collect in the course of any engagement.
6. Conflicts of interest
6.1 Our relationship involves a high degree of trust and confidence between us. Either party may terminate the engagement at any time if either of us believes that relationship has been undermined for any reason.
7. Liability and warranties
7.1 If an event in respect of which we have been engaged is cancelled or delayed through no fault of our own, you agree to compensate us for our performance and for any costs we have incurred in connection with the event. We agree to mitigate our loss in such a circumstance.
7.2 We will carry out the services with all care and diligence but we do not warrant that any advice, opinion, services or reports given will be true, correct, complete or that they will achieve your desired objectives. In the event that our services are provided for your business purposes, the provisions of the Consumer Guarantees Act 1993 will be excluded to the fullest extent permissible.
8.1 If any dispute or disagreement between you and us arises in relation to these terms or to any engagement, the party claiming that a dispute has arisen shall notify the other party in writing of the subject and details of the dispute. The parties will then endeavour in good faith to resolve the matter.
8.2 If the parties have been unable to resolve the dispute through negotiation within seven days of notice of the dispute, the dispute will be referred to mediation by a single mediator appointed by agreement between the parties. If the parties are unable to agree on a mediator within seven days, then the mediator will be appointed by the President for the time being of the New Zealand District Law Society.
8.3 If the parties have been unable to resolve the dispute through mediation within 10 workings days after the appointment of a mediator, then the dispute will, by either party giving notice in writing to this effect, be submitted to arbitration in accordance with the Arbitration Act 1996. The arbitration shall be by sole arbitrator appointed by agreement between the parties or failing such agreement by the President for the time being of the New Zealand District Law Society.
The arbitrator’s decision shall be final and binding on the parties.
9.1 No variations to these terms shall be binding unless we have agreed to the variation in writing.
9.2 Failure by us to insist on strict performance by you of any of these terms shall not be a waiver of any of our rights on any subsequent occasion.
9.3 Neither party shall be liable for any delay or failure to perform its obligations where occasioned by any event beyond that party’s reasonable control, and such party shall be entitled to a reasonable extension of time for the performance of any such obligations.
9.4 These terms and all agreements made between you and us will be governed by New Zealand law.
Website / Online Reputation Plans
These are the standard Terms of Service that are agreed to between Clever Kea Limited (“CK”), located at 145 Purchas Street, Edgeware, Christchurch 8013, New Zealand and your Company (“you” or “your” or “Company”). By signing the Service Agreement and/or paying on a month-to-month or annual basis for one of CK’s Website Plans or Online Reputation Plans (“Plans”) or other services, your Company agrees that it has carefully read and agrees to these Terms of Service.
CK offers several different Plans, so some of the terms outlined may or may not apply to your Company’s selection. These Terms of Service pertain to CK’s Month-to-Month Plans and website hosting services. If your Company has any other service with CK such as Search Engine Optimization (SEO), your Company must to refer to the agreement your Company was provided upon initiating that service.
1.1 Plans: Monthly service plan for a website and hosting of site that may or may not include other services depending on the plan your Company selected
1.2 All-In-One (AIO) – See “All-In-One” section on: http://cleverkea.com/websites/ for all included features.
1.3 Rent-To-Own (RTO) – See “Rent-to-Own” section on: http://cleverkea.com/websites/ for all included features.
1.4 Monthly Maintenance (MM) – See “Monthly Maintenance” section on: http://cleverkea.com/websites/ for all included features. See section 9.5 for hosting limitations.
1.5 Annual Hosting (AH) – See “Annual Hosting” section on: http://cleverkea.com/websites/ for all included features. See section 9.5 for hosting limitations.
1.6 SEO: An acronym for Search Engine Optimization, is the process of affecting the visibility of a website or a web page in a search engine’s “natural” or un-paid (“organic”) search results.
2. Scope and Manner of Services
2.1 Plans Included Services. CK is providing your Company the monthly website subscription plan, which you agreed to at the time you provided your payment information and agreed to a payment plan for said service. For a complete list of a services included in the Plan, refer to http://cleverkea.com/websites/ for the plan your Company selected (section 1.1). Additional services or website functionality that is not listed at are subject to additional fees.
2.2 Business Listing Service. CK may create accounts and post business information to multiple listing services, search engines, and data aggregates. You agree that CK represents your Company when conducting this service. You allow CK full rights to act on your Company’s behalf with any listing service, search engine or data aggregate CK chooses to create post and submit your Company’s information to. The Business Listing Services and the amount of Business Listing Service entries are subject to change at any time for any reason, including discontinuance.
2.3 Business Listings. Any or all Business Listings submitted by CK on behalf of the Company may be copied, aggregated, or transposed to other listing services available on the internet; beyond the control of CK. You acknowledge that once Business Listings are submitted, CK is not (and cannot be) held liable to remove any internet publication(s) done by CK on behalf of the Company. This includes before or after termination of this agreement. You agree that CK cannot and will not be held liable in any way for backlinks or business listing submissions created on your Company’s behalf by CK. You will be provided all the access information required for changes or updates made to Listing Service Accounts if possible, and CK assumes no further actions, rights, or liability.
2.4 Plan and Website Development. CK will develop your website to include the services as outlined in the CK Questionnaire that was filled out with you by a CK representative and/or listed for your specific Plan as selected by your Company per Section 2.1. Custom technical functions beyond what is listed may incur additional charges. You acknowledge that CK reserves the right to charge extra costs for functionality or edits beyond those in the list of services. CK will provide you a cost estimate of any extra charges. CK, in good faith, applies industry standards to any and all estimates and reserves the right to define services that are beyond those listed on the CK Plan your Company per Section 2.1
2.5 Website Maintenance and Updates. CK will host and make routine updates to your public website, limited to specific monthly allowance hours and a maximum of 2 requests per month. Requests must be submitted via email to CK and each email is considered a separate request. For specific monthly allowance hours, refer to the plan your Company selected per section 2.1. Monthly allowance hours expire each month and do not roll over to the subsequent month or accumulate. Updates to your Company website(s) are limited to changing text content, replacing or removing images. Changes to technical functionality, background or design images or implementation of any new or otherwise non-existent functionality or layout are not included with typical maintenance and require a separate quote and agreement withstanding and not included within this Terms of Service. Any and all time that is beyond the monthly allotment of maintenance hours is billed at a rate as quoted by CK, and charged to the billing information on file.
2.6 Additional Fees. You agree to be responsible for any fee and payment terms that are described herein, during the initial registration process for services, and/or subsequently agreed to or requested by you. Any service fees are exclusive of any sales or other taxes (other than taxes that we are responsible for by providing such services.
2.7 The Plan is not SEO. You acknowledge that there are no performance guarantees within any search engine for services performed as only the individual search engine providers can guarantee results. Company understands that CK makes no guarantee of Website performance within any search engine; specifically, Google. The Plan does not include ongoing search engine optimization (SEO) services that are necessary for search result rank improvement. A Plan is a website & hosting, not SEO.
3. Term and Termination
The term of this Terms of Service is effective as of the date you registered for the Service and shall remain in full force and effect until terminated by either party in accordance with this Section.
3.1 Termination by You. You may terminate this Terms of Service at any time for any reason, and the Company Website by CK will immediately be taken offline from the internet
3.2 Termination by CK. CK reserves the right to terminate service at any time. Prior to termination of service, CK may provide notice of termination thirty (30) days in advance via the email address you provided
3.3 Payment of Fees Cease Upon Termination. Upon termination of your relationship with CK pursuant to this section (Section 3), you shall immediately cease Plan monthly payments. Upon termination of this Terms of Service pursuant to Section 3, any portion of fees owed but not yet paid to CK shall become due and payable to CK and will be automatically charged to your billing account on file
3.4 Month to Month. The Plan is a month-to-month service, your subscription payment is paid at the beginning of each month’s service
3.5 Termination Notice. All service terminations must be done via a phone call to CK. Contact CK customer service during regular business hours, 9am – 4pm NZST Monday to Friday at: 03 974 3685
3.6 RTO Only – Pay Off Balance Met. For CK to transfer or for Company to obtain license free usage of their RTO/Plan website files & code, the Company must pay the full RTO Pay Off balance listed in the go-live agreement signed by Company. Once the Pay Off balance listed in the go-live agreement is met, Company is notified via email that the website developed by CK is license free and the Company may freely move the website and all of the website code from CK servers. If Company does not request to move or receive the website and website code, the RTO plan automatically changes to the Monthly Maintenance plan, billed 30 days after the final payment date.
3.7 Refunds and Proration. There are no refunds or prorated payments. All payments are final for all CK services. Terminating a Plan service, ends that service on that date the termination was given to and processed by CK
3.8 Your Approval and Communication with CK. Your approval is necessary during the Website build and again upon release of the final website. CK will continue to bill month-to-month for your Plan regardless, even if you do not communicate to CK. You and your Company are required to communicate promptly with CK to ensure delivery of your website.
4. Use of the Service & Ownership
4.1 Limited Licensed Ownership (excluding MM and Annual Hosting). Company is the limited licensed owner of the Plan’s site files and code, limited only to usage on a CK hosting server. Otherwise any duplication or likeness in any other form of publication is expressly prohibited and considered a breach in agreement
4.2 Website Development and Transfer Fee. If you were to breach the agreement and / or violate the limited license, you are subject to the Website Development and Transfer Fee of $1000.00. Additionally, you are subject to $3999.00 minus any amount paid to CK that results in an amount equal to or greater than $0.00. Company is also subject to any legal or technical fees that may apply to remedy the license violation.
4.3 Website Content. All Website text content and imagery is owned by the Company. Company states that it has obtained permission to use any third-party trademarks or logos and the usage of them upon the Website as provided by Company does not in any way imply any license, approval or other relationship of any kind by CK
4.4 Trademarks and Logos. The appearance of any third-party trademarks as provided by you does not in any way imply any connection, license, approval or other relationship of any kind by CK. The trademarks, service marks, logos, and any designs used or displayed on the Service are not trademarks and/or service marks owned by CK or its licensors. Nothing in this Terms of Service shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of our trademarks displayed on the Website without each party’s prior written consent in each instance. Company shall be responsible for timely notifying CK of any copyright, legal notices or disclaimers that Company requires to be included in the Service or Website.
4.5 Usage Restrictions (excluding MM and Annual Hosting). You shall not copy, prepare derivative works, decompile or reverse engineer the Website without the expressed written approval of CK. Your use of CK’s Plan is limited solely to those rights granted in this section (Section 4). You will not remove any trademark, copyright, or other proprietary rights notices which appears on the Service. In addition, you agree not to use CK’s services for any unlawful or fraudulent purpose including, but not limited to: (a) impersonating any person or entity or (b) harvesting or collecting any personal information in violation of applicable law.
4.6 License to Content. You hereby grant CK a limited, non-exclusive, worldwide, paid-up, royalty-free, transferable (in the event of a sale or other change of control of CK’s business), perpetual, irrevocable right and license to use, copy, publish, distribute, syndicate, reformat and update (for example, to improve accuracy and/or standardize formats) any and all listing content, special offer content and other content that you provide in connection with the use of the website. CK may sub-license this right to any entity and other online partners. This license is expires at the termination of this Service Agreement.
4.7 Domain. CK may, upon request by you, purchase the domain a.k.a. URL used for the website address. If you are current in your billing and otherwise in good standing with CK, CK will willingly transfer the domain to you at any time upon request at no additional cost. If you are in breach of contract or owe outstanding payment to CK, CK reserves the right to keep any and all domains a.k.a. URLs as purchased and already owned by CK.
5. Marketing Materials Acknowledgement
You explicitly authorize CK to use your website or likenesses of your website that was designed by CK in any CK marketing materials including portfolios presented to potential clients.
6. Approval of Changes to Website
6.1 Edit Approval. CK will send via email a notification of new or updated Website content to the email address you provided. You will have two (2) business days from the email receipt date to notify CK if changes are required, otherwise CK will close out Company’s edit request as approved.
6.2 Edit Requests. If you request any changes to your website, including new or updated content, CK will make the requested changes as requested. Edits are published directly online to the live Website. CK will notify you when the change is made, but no mock-ups or drafts will be provided for approval. Your request for the change is your approval. If the change contains any error or mistake, you must immediately, but no later than two (2) business days after the notice of the changes, notify CK of the error or mistake. Regardless, CK is not responsible for any damages caused by any edit request mistake or typo, including loss of revenue or sales.
7. Updates or Website Changes
7.1 Website Edits. Updates or edits to the Website include but are not limited to text content, graphics, layout, code or links to external content. All requested updates from you must be submitted by email to CK at email@example.com & may be subject to fees per Section 2.
7.2 Monthly Allowance. The monthly allotment of hours dedicated to maintenance is pursuant to Section 2 above. Unused hours expire each month.
7.3 Prioritization. CK reserves the right to prioritize your update/change request, but will generally complete it within five (5) business days.
8. Changes to the Service and Prices
8.1 CK reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Plan (or any part thereof).
8.2 Prices of all services, including but not limited to monthly subscription plan fees to the service, are subject to change upon thirty (30) days email notice from CK.
8.3 CK shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the service after notice has been provided as provided within this Section.
9.1 CK will provide web hosting for your Company or entity website(s) based on the payment for the plan: AIO, RTO, MM or AH.
9.2 CK reserves the right to refuse service and /or access to its servers to anyone. CK does not allow any of the following content to be stored on its servers:
9.2.1 Illegal Material – Including copyrighted works, commercial audio, video, or music files, and any material in violation of any Federal, State or Local regulation
9.2.2 Miscellaneous content – Including pirated software, ROMS, emulators, phreaking, hacking, password cracking, IP spoofing, etc. and encrypting of any of the above. Also includes any sites providing “links to” or “how to” information about such material.
9.3 Web hosting companies occasionally implement changes on servers which may require minor adjustments to your website code by CK. Occasional “down-time” or other problems requiring the assistance of CK may also occur. These changes may, at the discretion of CK, be billed at CK’s current hourly rate, as quoted by CK.
9.4 CK shall not be responsible for any loss of business or other damages resulting from “down-time” or other technical problems related to the host server, whether caused by the web hosting Company or by broader Internet problems beyond our control.
9.5 Hosting customers (including MM, AH & AIO plans) are limited to up to 1.5 gigabytes disk space (storage space) and 9000 megabytes bandwidth per month. This includes email accounts and the Website files. Customer websites requiring higher disk space and/or bandwidth limits, are subject to additional fees as quoted by CK.
10. Protection of Proprietary Rights
10.1 Definition of Confidential Information: “Confidential Information” as used in this Terms of Service shall mean any and all technical and non-technical information including patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, computer files and models, and formula related to the past, current, future and proposed products and services of your Company, suppliers and customers, and includes, without limitation, innovations, property, and information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information.
10.2 Confidential Information – Exclusions: CK’s obligations with respect to any Confidential Information shall not apply to any such portion which CK can demonstrate, (a) was in the public domain at or subsequent to the time such portion was communicated to CK by you through no fault of CK; (b) was rightfully in CK’s possession free of any obligation of confidence at or subsequent to the time such portion was communicated to CK by you; or (c) was developed by CK independently of and without reference to any information communicated to CK by you. A disclosure of Confidential Information by CK, either (i) in response to a valid order by a court or other governmental body, (ii) otherwise required by law, or (iii) necessary to establish the rights of either party under this Terms of Service, shall not be considered to be a breach of this Terms of Service or a waiver of confidentiality for other purposes; provided, however, that CK shall provide prompt prior written notice thereof to you to enable you to seek a protective order or otherwise prevent such disclosure.
11. Warranty By You As To Ownership Of Intellectual Property Rights.
You must obtain all necessary permissions and authorities in respect of the use of all copy, logos, graphic images, registered Company logos, names and trademarks, or any other material that you supply to us to include in your website or web applications. You must indemnify us and hold CK harmless from any claims or legal actions related to the content of your website.
12. Billing Period
12.1 Terms. All subscriptions are month to month and billed on or near the same calendar day each month as the effective date. The effective date is the same calendar day that your subscription was initiated. For purpose of clarity and by example, if your subscription was initiated on the 15th of the month, then your account on file will be billed the 15th day of the subsequent month. Should the billing date fall on a weekend or is not a calendar day in the following month (e.g. the 31st), then your account will be billed either the proceeding or subsequent business day. You are billed in advance of the following month of service. If for whatever reason your account is not billed and payment is not made, and/or outstanding subscription payments are owed to CK, for two consecutive months or billing cycles; CK will suspend your account and remove your website from public view (go offline) until all outstanding subscriptions payments are current. CK reserves the right to change the term of future Billing Periods at any time by providing you at least thirty (30) days advance written notice.
12.2 Suspended Plan Accounts and Websites. If your account and website are suspended due to an overdue billing issue, you are required to make full payment for the total amount owed and then your website will go back online (for public view). If not paid, your account debt may be sold and turned over to a third party debt collections agency.