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1. Definitions

1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

1.2 “Ryze” means Ryze Limited, its successors and assigns or any person acting on behalf of and with the authority of Ryze Limited.

1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Ryze to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:

(a) if there is more than one Client, is a reference to each Client jointly and severally; and

(b) if the Client is a partnership, it shall bind each partner jointly and severally; and

(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and

(d) includes the Client’s executors, administrators, successors and permitted assigns.

1.4 “Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by Ryze in the course of it conducting, or supplying to the Client, any Services.

1.5 “Services” mean all Services supplied by Ryze to the Client at the Client’s request from time to time.

1.6 “SNT” means any Social Network Tool being a social media platform and/or application which is accessible on the internet through the World Wide Web and which provides multimedia content via a graphical user interface (including, but not limited to Facebook, Twitter, LinkedIn, Pinterest, etc.).

1.7 “Web Site” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.

1.8 “Prohibited Content” means any content on any media (including advertising, posts, comments, etc.) that:

(a) is, or could reasonably be considered to be, in breach of the Broadcasting Act 1989; the Consumer Guarantees Act 1993; or any other applicable law or applicable industry code; or

(b) 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

(c) is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights.

1.9 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.

1.10 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Services via the website.

1.11 “Price” means the price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between Ryze and the Client in accordance with clause 5 of this Contract.

2. Acceptance

2.1 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 Ryze.

2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.

2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.4 The Client acknowledges that the supply of Services on credit shall not take effect until the Client has completed a credit application with Ryze and it has been approved with a credit limit established for the account.

2.5 In the event that the supply of Services request exceeds the Client’s credit limit and/or the account exceeds the payment terms, Ryze reserves the right to refuse delivery.

2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.

2.7 The Client acknowledges and agrees that any expected or estimated outcomes concerning increased sales or market share or penetration achieved by the Client derived from marketing activities undertaking by Ryze, expressed in consultation or estimates, are speculative and in no way constitute a guarantee. In addition, where the Client makes changes to their website, social media pages or advertising campaign information without prior discussion with Ryze, any such changes may negatively affect any costs and results.

2.8 None of Ryze’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Ryze in writing nor is Ryze bound by any such unauthorised statements.

2.9 Any advice, recommendations, information, assistance or service provided by Ryze in relation to Services provided is given in good faith, is based on information provided to Ryze, and Ryze’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 Ryze shall make all effort to offer the best solution to the Client.

2.10 The Client acknowledges and agrees that:

(a) Ryze does not guarantee the SNT’s performance;

(b) display on the SNT does not guarantee the availability of any particular goods; therefore, all orders placed through the Client’s website as a result of any post or other communication posted shall be subject to confirmation of acceptance by the Client;

(c) the ability to post communications on a SNT may be unavailable from time to time due to regularly scheduled maintenance and/or upgrades by the SNT provider;

(d) there are inherent hazards in electronic distribution, and as such Ryze cannot warrant against delays or errors in posts appearing on any SNT.

2.11 With changes in technology, changes in internet use and SNT visiting patterns, particular SNT availability/life cycle, Ryze may suggest changes to the original proposal and recommend an alternative service. Any such suggestions and/or recommendations shall be communicated to the Client prior to implementation of any changes.

2.12 The Client acknowledges that:

(a) all SNT used in the provision of the Services are subject to the terms and condition of service of the third party provider and as such it is the Client’s responsibility to be familiar with those terms and conditions; and

(b) in Ryze’s use of the Client’s SNT, Ryze is acting as the Client’s agent and any liability arising from the use of the SNT account/s shall be the Client’s responsibility.

3. Errors and Omissions

3.1 The Client acknowledges and accepts that Ryze shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

(a) resulting from an inadvertent mistake made by Ryze in the formation and/or administration of this Contract; and/or

(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Ryze in respect of the Services.

3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Ryze; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

4. Change in Control

4.1 The Client shall give Ryze 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, change of trustees, or business practice). The Client shall be liable for any loss incurred by Ryze as a result of the Client’s failure to comply with this clause.

5. Price and Payment

5.1 At Ryze’s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by Ryze to the Client; or

(b) the Price as at the date of delivery of the Services according to Ryze’s current price list; or

(c) Ryze’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of ten (10) business days.

5.2 Ryze reserves the right to vary the Price:

(a) if a variation to the plan of scheduled Services, or Client specifications is requested (including, but not limited to, additional work required due to hidden or unidentifiable difficulties not evident prior to commencement of the Services, accessing the SNT, internet disruptions or limited access, etc.); and

(b) as a result of increases beyond Ryze’s reasonable control in the cost of materials or labour (including, but not limited to, any variation as a result of fluctuations in currency exchange rates, increases to Ryze in the cost of taxes, levies, freight and insurance charges and increases in third-party network operator or supplier costs, etc.)

5.3 Variations will be charged for on the basis of Ryze’s quotation, and will be detailed in writing, and shown as variations on Ryze’s invoice. The Client shall be required to respond to any variation submitted by Ryze within ten (10) working days. Failure to do so will entitle Ryze to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

5.4 At Ryze’s sole discretion a non-refundable deposit may be required.

5.5 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by Ryze, which may be:

(a) on or before delivery of the Services;

(b) by way of instalments/progress payments in accordance with Ryze’s payment schedule which may be based upon:

(i) fifty percent (50%) deposit due (of the project value) upon acceptance of the quotation; and

(ii) twenty-five percent (25%) shall be due on approved design completion; and

(iii) the final balance shall be due seven (7) days after completion of the Services; or

(c) payment for approved Clients shall be due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;

(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Ryze.

5.6 Payment may be made by electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and Ryze.

5.7 Ryze may in its discretion allocate any payment received from the Client towards any invoice that Ryze determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Ryze may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Ryze, payment will be deemed to be allocated in such manner as preserves the maximum value of Ryze’s Purchase Money Security Interest (as defined in the PPSA) in the Services.

5.8 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 Ryze nor to withhold payment of any invoice because part of that invoice is in dispute.

5.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to Ryze an amount equal to any GST Ryze must pay for any supply by Ryze under this or any other contract for providing Ryze’s Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. 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.

6. Provision of the Services

6.1 At Ryze’s sole discretion delivery of the Services shall take place when the Services are supplied to the Client or the Client’s nominated SNT account.

6.2 The Services are provided on the basis of specifications, information and instructions provided by the Client to Ryze (whether written or verbal). The Client acknowledges that it is their responsibility to ensure that such are detailed sufficiently to satisfy Ryze’s requirements of interpretation and understanding, as once accepted by the Client, Ryze’s quotation shall be deemed to interpret correctly those specifications, information and instructions. Therefore, Ryze shall not accept any liability for the supply of Services contrary to the Client’s intention, or errors or omissions in the Services, due to insufficient or inadequate provision of detailed specifications, information and instructions by the Client or oversight or misinterpretation thereof, and Ryze may charge the Client additional costs incurred thereby in remedying the Services, and if reasonably practical, will notify the Client of such costs before they are incurred and the Client agrees to them.

6.3 Ryze may supply Incidental Items to the Client where it is required for the provision of Services, and

(a) delivery of the Incidental Items is taken to occur at the time that Ryze (or Ryze’s nominated carrier) delivers the Incidental Items to the Client’s nominated address, even if the Client is not present at the address; and

(b) at Ryze’s sole discretion, any costs of delivery shall be included in the Price; and

(c) Ryze may deliver the Incidental Items in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions; and

(d) risk of damage to, or loss of, the Incidental Items passes to the Client on delivery, and the Client must insure the Incidental Items on, or before, delivery.

6.4 Whilst Ryze shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties (subject to Ryze’s normal service hours of 8.30am to 5:30pm on business days), the Client acknowledges that any time specified thereby for provision of the Services is an estimate only and Ryze will not be liable for any loss or damage incurred by the Client as a result of any delay. In the event that Ryze is unable to provide the Services as agreed solely due to any action or inaction of the Client then Ryze shall be indemnified from any liability for any resulting failure to provide the Services and/or entitled to charge a reasonable fee for re-providing the Services at a later time and date.

6.5 Normal Working Hours:

(a) Services may be requested outside of the hours of 8.30am to 5:30pm Monday through Friday, and including all public holidays by prior arrangement, but may be subject to additional charges.

7. Risk and Limitation of Liability for Client Data

7.1 When quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good copy, any extra work or cost caused by any variation by the Client of the original instructions or by the manuscript copy being, in Ryze’s opinion, poorly prepared or by the Client’s requirements being different from those originally submitted or described, then the cost of such variations may be charged to the Client and shown as extras on the invoice.

7.2 Any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice.

7.3 Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at its request for the work.

7.4 Where the performance of any contract with the Client requires Ryze to obtain services from a third party, the contract between Ryze and the Client shall incorporate and shall be subject to the conditions of supply of such services to Ryze (including, but not limited to registering the Client’s business and/or set up SNT accounts where required), and the Client shall be liable for the cost in full including Ryze’s margin of such services.

7.5 Whilst every care is taken by Ryze to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading and/or revision of the proposed Services of any media communications prior to posting of the same to any SNT and/or revision of the proposed Services including Web Site design. Ryze shall be under no liability whatever for any errors not corrected by the Client in the final proof reading/revision.

7.6 Any changes and comments as a result of proof reading/revision undertaken by the Client shall be provided to Ryze in one (1) complete brief and not multiple email notifications. Any extended revisions outside of this scope shall be charged at Ryze’s hourly rate.

7.7 Any change or correction to any video, photographs and/or artwork supplied by the Client which is deemed necessary by Ryze to ensure correctly finished work shall be invoiced as an extra.

7.8 The Client shall provide Ryze with data in the following formats:

(a) for text, files shall be in an electronic format as standard text (.txt) or Work (.doc) on a USB or via email;

(b) for imaged, in an electronic format as prescribed by Ryze on a USB or via email with the images of a suitable quality applicable for the use intended and without any subsequent image processing being required. Ryze shall not be responsible for the quality of images scanned from printed materials;

(c) additional expenses may be charged to the Client for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing or data entry services.

7.9 The Client acknowledges and agrees that Ryze shall not be held responsible or liable for:

(a) anything related to the SNT or any other Services provided; and/or

(b) any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of Ryze.

7.10 Ryze, 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 Ryze to the Client.

7.11 All media releases and public announcements by either party relating to these terms and conditions, or the Services (including subject matter and related documents), shall be co-ordinated with the other party and approved jointly by the party prior to release.

7.12 Ryze 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.

8. Client’s Acknowledgement and Responsibilities

8.1 The Client shall be responsible for the payment of domain registration, hosting set-up and fees, advertising costs and any other third party costs for services that Ryze manages on the Client’s behalf.

8.2 The Client acknowledges that payments to third parties for general advertising, social media advertising and lead generation costs shall be the Client’s responsibility. Any budgets for such costs shall be set with in consultation between Ryze and the Client

8.3 The Client will, in addition to any other obligations expressed in this Contract, have the following responsibilities:

(a) provision of all content (including data, logos, designs and/or graphic and related materials) to be incorporated into the SNT communications and/or Web Site within five (5) business days of being requested by Ryze;

(b) provision of any other information, ideas or suggestions which are to be expressly considered by Ryze in developing the SNT communications; and

(c) to ensure that content supplied to Ryze does not contain Prohibited Content, a link to any web site 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 SNT.

8.4 Ryze will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the SNT communications which is attributable to:

(a) incorrect information provided by the Client, either pursuant to this clause or otherwise; or

(b) failure by the Client to provide relevant information, either pursuant to this clause or otherwise; or

(c) any third-party products and/or services used by Ryze in placing the SNT communication.

9. Web Site Development

9.1 Ryze’s Responsibilities:

(a) upon acceptance of Ryze’s quotation/proposal, and in accordance with this Contract, Ryze will:

(i) use its best endeavours to develop the Web Site in accordance with the Client’s instructions and specifications including development stages; and

(ii) to the extent specified in the Client’s instructions and specifications, negotiate and procure any third-party agreements on behalf of the Client;

(b) the Client acknowledges that the development of the Web Site by Ryze is based upon current technology platforms (e.g. internet browsers, mobile, android, social media platform, etc.), and therefore Ryze cannot guarantee that Web Site 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;

(c) upon Ryze receiving payment in full, Ryze shall provide the Client with the last backup of the Web Site and associated data and ensure the Web Site is ‘live’ and visible on the internet and/or social media platform;

(d) Ryze shall advise the Client of all third party software, platforms and/or social media platform that the Client is recommended to have in place to assist the Client in setting up those accounts with the Client’s details and billing information; and

(e) all software and components not developed by Ryze retain the original licence and terms associated with that software.

9.2 Client’s Responsibilities:

(a) the Client will ensure that Ryze is given such information and assistance (including access to computer systems, hosting account, disk space, create databases and applications, and other locations to complete a branding or other project) as Ryze reasonably requires to enable Ryze to construct and maintain the Web Site; and

(b) when approval is sought or required from the Client following completion of a development stage, the Client will not delay the approval of that development stage beyond fourteen (14) days (time being of the essence) of being requested unless otherwise agreed to by Ryze in writing. In the event of delays beyond this time frame, then Ryze shall be entitled to charge a “holding fee” of an amount to be determined by Ryze.; and

(c) subject to clause 18.4 the Client shall supply access to any computer system, usernames and passwords required to remove data and/or sites for failure to comply with these terms and conditions; and

(d) it shall be the Client’s responsibility to ensure that any specific requirements they may have for mobile web browsers is included in the brief, as, unless otherwise specified therein, the choice of web browsers and technology used in the development of the Web Site shall be at the sole discretion of Ryze. In the event that additional Services are requested, or required (as per clause 9.1(b)), in order to meet any specific requirements for mobile web browsers, after Ryze has commenced work on the Web Site, shall be treated as a variation to the Price, and a strict estimation of further work required shall be submitted to the Client for approval before proceeding with the variation work; and

(e) Ryze will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Web Site which is attributable to any third-party products and/or services used by Ryze in creation of the Web Site and/or social medial platform.

9.3 Client’s Property and Materials:

(a) 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, Ryze can suggest stock libraries; and

(b) in the case of property and materials left with Ryze without specific instructions, Ryze 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; and

(c) where materials or equipment are supplied by the Client, Ryze accepts no responsibility for imperfect work caused by defects in or unsuitability of such materials or equipment.

9.4 Maintenance:

(a) subject to sub-clause (b), Ryze will provide the Maintenance Services in accordance with the maintenance terms set out in Ryze maintenance schedule; and

(b) the Client will procure all necessary authorisations, licences and consents to enable Ryze to have access to the Web Site in order to provide the Maintenance Services; and

(c) should the Client during development of or after handover of the Web Site, attempt to update, edit or alter the Web Site pages, infrastructure, source files or the Web Site’s architecture, time that Ryze provides to repair pages shall be treated as additional work.

10. Search Engine Optimisation (SEO)

10.1 Although Ryze shall use their knowledge and experience to gain the best results possible, Ryze gives no guarantee of the quality of visitor or the position/page rank or volume of visits to the Web Site, or warranty that the Web Site will be effective in promoting the Client’s business or result in any increase in sales of the products/services of the Client. Periodic reporting will be sent to the Client’s nominated email address, at the sole discretion of Ryze.

10.2 The Client accepts that a SEO may change their policies and systems at any time and such, Ryze shall not be held liable for any fluctuations, changes or removal of your listing from a SEO.

11. Defective Services

11.1 Any alleged fault, defect, shortage in quantity, errors, omissions or failure to comply with the description or quote of the Services which the Client detects must be reported to Ryze as soon as is practically possible. Any emails or telephone messages which are received outside Ryze’s normal business hours will be processed the following business day. The Client shall afford Ryze an opportunity to inspect 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.

11.2 For defective Services, which Ryze has agreed in writing that the Client is entitled to reject, Ryze’s liability is limited to either (at Ryze’s discretion) rectifying the Services or re-providing the Services, provided that the Client has complied with the provisions of clause 11.1.

12. Compliance of Laws

12.1 The Client and Ryze shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities in the country where the Services are being provided or as per guidelines on any SNT. Furthermore, Ryze warrants that any Services and/or content produced are fully compliant with said statues, regulations and bylaws and SNT requirements.

12.2 The Client shall obtain (at the expense of the Client) all licenses and/or approvals pertaining to materials to be used in the communication copy and where required, any release documentation for the use of any digital imagery which may include people.

13. Confidentiality

13.1 Each party agrees to treat all information and ideas communicated by the other party confidential and each agrees not to divulge it to any third party, without the other party's written consent.

13.2 The quotation and the information contained in the quotation or any other schedule provided by Ryze to the Client is done so on a “commercial in confidence” basis thereby, the Client agrees not to reproduce or provide said information in any manner to any third party without the prior written approval of Ryze.

13.3 Either party must promptly return or destroy all Confidential Information of the other party in its possession or control at the other party’s request, unless required by law to retain it.

13.4 Confidential Information excludes information:

(a) generally available in the public domain (without unauthorised disclosure under this contract); or

(b) required by law, any stock exchange or regulatory body to be disclosed; or

(c) received from a third party entitled to disclose it; or

(d) that is independently developed.

13.5 The obligations of this clause 13 shall survive termination or cancellation of this Contract.

14. Title

14.1 Ryze and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until:

(a) the Client has paid Ryze all amounts owing for the Services; and

(b) the Client has met all other obligations due by the Client to Ryze in respect of all contracts between Ryze and the Client.

14.2 Receipt by Ryze 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 Ryze’s ownership or rights in respect of the Incidental Items shall continue.

14.3 It is further agreed that:

(a) the Client is only a bailee of the Incidental Items and must return the Incidental Items to Ryze immediately upon request by Ryze;

(b) the Client holds the benefit of the Client’s insurance of the Incidental Items on trust for Ryze and must pay to Ryze the proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed;

(c) the Client must not sell, dispose, or otherwise part with possession of the Incidental Items. If the Client sells, disposes or parts with possession of the Incidental Items then the Client must hold the proceeds of sale of the Incidental Items on trust for Ryze and must pay or deliver the proceeds to Ryze on demand;

(d) the Client should not convert or process the Incidental Items 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 Ryze and must dispose of or return the resulting product to Ryze as Ryze so directs;

(e) the Client shall not charge or grant an encumbrance over the Incidental Items nor grant nor otherwise give away any interest in the Incidental Items while they remain the property of Ryze;

(f) the Client irrevocably authorises Ryze to enter any premises where Ryze believes the Incidental Items are kept and recover possession of the Incidental Items.

15. Personal Property Securities Act 1999 (“PPSA”)

15.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:

(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and

(b) a security interest is taken in all Incidental Items and/or collateral (account) – being a monetary obligation of the Client to Ryze for Services – that have previously been supplied and that will be supplied in the future by Ryze to the Client.

15.2 The Client undertakes to:

(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Ryze may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, Ryze for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Incidental Items charged thereby;

(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items and/or collateral (account) in favour of a third party without the prior written consent of Ryze.

15.3 Ryze and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

15.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.

15.5 Unless otherwise agreed to in writing by Ryze, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

15.6 The Client shall unconditionally ratify any actions taken by Ryze under clauses 15.1 to 15.5.

15.7 Subject to any express provisions to the contrary (including those contained in this clause 15), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

16. Security and Charge

16.1 In consideration of Ryze agreeing to supply Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

16.2 The Client indemnifies Ryze from and against all Ryze’s costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising Ryze’s rights under this clause.

16.3 The Client irrevocably appoints Ryze and each director of Ryze as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Client’s behalf.

17. Intellectual Property

17.1 Where Ryze has designed, drawn or developed Services (including the Web Site) for the Client, Ryze retains full intellectual property ownership of Ryze’s proprietary software, design, code, materials, source code of all images and design, routines and Services, including the copyright in any designs and drawings and documents or discovered during the provision of the Services, and Ryze hereby grants to the Client an irrevocable, non-exclusive and non-transferable worldwide licence to use Ryze’s materials, routines and Services solely in relation to the operation of the Client’s own presentation and functioning of the Web Site, conditional upon the Client fulfilling their obligations under this Contract (including, but not limited to, the full payment of the Price). Furthermore, the Client shall not have any right to use open source software or Ryze’s intellectual property for any other purpose.

17.2 Ryze shall retain property ownership of:

(a) any designs not approved by the Client, and later offer the Client the right to purchase a licence to use such non-approved designs; and

(b) all photography and video audio filmed and/or created by and for Ryze.

17.3 The Client warrants that all designs, specifications or instructions given to Ryze will not cause Ryze to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Ryze against any action taken by a third party against Ryze in respect of any such infringement.

17.4 The Client hereby authorises Ryze to utilise images of the Services created by Ryze in advertising, marketing, or competition material by Ryze including, but not limited to:

(a) the Client permitting Ryze to place a small credit on printed material, exhibition displays, advertisement and/or link to Ryze’s own web site on the Client’s Web Site, which shall usually be in the form of a small logo or line of text placed towards the bottom of the page;

(b) allowing Ryze to place web sites and other designs, along with a link to the Client’s Web Site on Ryze’s own web site for demonstration purposes and to use any designs in Ryze’s own publicity.

18. Default and Consequences of Default

18.1 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 Ryze’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

18.2 If the Client owes Ryze any money the Client shall indemnify Ryze from and against all costs and disbursements incurred by Ryze in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Ryze’s collection agency costs, and bank dishonour fees).

18.3 Further to any other rights or remedies Ryze may have under this Contract, if a Client has made payment to Ryze, 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 Ryze under this clause 18, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.

18.4 Without prejudice to any other remedies Ryze may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Ryze may, at their sole discretion:

(a) suspend or terminate this Contract and/or any of the Services without notice or refund;

(b) make an additional charge to the Client; or

(c) block access to any part of the Services.

18.5 Without prejudice to Ryze’s other remedies at law Ryze shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Ryze shall, whether or not due for payment, become immediately payable if:

(a) any money payable to Ryze becomes overdue, or in Ryze’s opinion the Client will be unable to make a payment when it falls due;

(b) the Client has exceeded any applicable credit limit provided by Ryze;

(c) 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

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

19. Cancellation

19.1 Ryze may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice Ryze shall repay to the Client any money paid by the Client for the Services. Ryze shall not be liable for any loss or damage whatsoever arising from such cancellation.

19.2 In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by Ryze as a direct result of the cancellation (including, but not limited to, any loss of profits).

20. Service of Notices

21.1 Any written notice given under this Contract shall be deemed to have been given and received:

(a) by handing the notice to the other party, in person;

(b) by leaving it at the address of the other party as stated in this Contract;

(c) by sending it by registered post to the address of the other party as stated in this Contract;

(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;

(e) if sent by email to the other party’s last known email address.

21.2 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.

21. Trusts

22.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Ryze may have notice of the Trust, the Client covenants with Ryze as follows:

(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

(b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.

(c) the Client will not without consent in writing of Ryze (Ryze will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;

(i) the removal, replacement or retirement of the Client as trustee of the Trust;

(ii) any alteration to or variation of the terms of the Trust;

(iii) any advancement or distribution of capital of the Trust; or

(iv) any resettlement of the trust property.

22. General

23.1 Nothing in this contract is intended to have the effect of contracting out of any applicable provisions of the Consumer Guarantees Act or the Fair Trading Act of New Zealand (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable. 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 Ryze to the Client.

23.2 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.

23.3 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 Auckland Courts of New Zealand.

23.4 Ryze shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Ryze of these terms and conditions (alternatively Ryze’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).

23.5 Ryze may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.

23.6 The Client cannot licence or assign without the written approval of Ryze.

23.7 Ryze may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Ryze’s sub-contractors without the authority of Ryze.

23.8 The Client agrees that Ryze may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Ryze to provide Services to the Client.

23.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

23.10 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.