These Terms and Conditions apply to all contracts in conjunction with the Order Form apply to all the Services provided by Harper Digital Limited (“Harper”) which may include but not limited to our Services to any Customer, as well as their service or agents, regardless of the means by which that occurs.
1.1 Commencement Date: means the date of the particular Order Form or when the Customer engages Harper Digital to commence the Services.
1.2 CGA: means the Consumer Guarantees Act 1993.
1.3 Customer or You: means the person, firm, organisation, partnership, corporation or other entity (including trust) contracting with Harper.
1.4 Default: means you or any Guarantor:
(a) Being unable to pay your debts as they fall due;
(b) Failing to comply with these Terms or any other agreement with us;
(c) having an application made (or resolution passed) for a receiver, liquidator,
administrator or other statutory manager to be appointed;
(d) Being convicted of a criminal offence;
(e) Doing any act that in our opinion causes or threatens the risk, safety, condition or
safekeeping of any Goods or Services we supply to you;
(f) Ceasing to carry on business or suffering a material adverse change which in our
opinion changes your financial position or creditworthiness; or
(g) Indicating by notice or conduct that you no longer intend to comply with your
obligations under any agreement with us.
1.5 Guarantor: means all signatories who will sign our Order Form or engage Harpers Services.
1.6 Harper Digital: means Harper Digital Limited Company Number 6090258, registered offices at 1H Park Avenue, Takapuna, Auckland, 0622.
1.7 Log-in Information or Administrative Access: means access to your existing website, social media accounts, or google accounts (including but not limited to: Google AdWords, Google Analytics, Google Business Profile).
1.8 Minimum Term: means the given the definition in clause 10.1.
1.9 Order Form: means the document supplied to you that detail the proposed Products ordered by you, their Minimum Term and associated costs.
1.10 Personal Details: means Personal Details such as but not limited to contact information, credit card information, Log-in details to websites, or Administrative Access to websites or accounts held by you.
1.11 Products: means any deliverables that Harper creates for you or otherwise delivers to you as part of carrying out the Services or the Project.
1.12 Project: means any Service carried out by Harper to be delivered to you, the client as a oneoff Service or product. Generally this refers to Website Development and Website Refresh Services. “Project” does not refer to Subscription Services.
1.13 Services or Service: means any of those Services set out under clause 2.1.
1.14 Statutory Holidays: means any public holiday in New Zealand as defined in the Holidays Act 2003.
1.15 Supplementary Quote: refers to any further Quotes provided by Harper.
1.16 Subscription Service or Monthly Service: means any Services provided by Harper on a monthly basis. These Services typically have a Minimum Term specified on the Order Form.
1.17 Working Day: means any day other than Saturday, Sunday or a Statutory Holidays. A Working Day is deemed to commence at 9am and terminate at 5pm.
1.18 Website Hosting or Website Hosting Services: means the Services that Harper may carry out in relation to the hosting of any Website on your behalf.
1.19 A reference to “we, “us”, “our” is a reference to Harper.
1.20 A reference to “you” or “your” is a reference to the Customer.
2. Our Services
2.1 In conjunction with the Order Form, these Terms and Conditions apply to all of the Services provided by Harper, which may include (but is not limited to) any of the following:
(a) Website Design and Development;
(b) WordPress Assistance;
(c) Google AdWords;
(d) Bing Ads;
(e) Facebook Ads;
(f) LinkedIn Ads;
(g) Ads on other media publishers;
(h) Website Content Optimisation;
(j) Website Hosting;
(k) Content Management and Online Presence Management;
(l) Search Engine Optimisation (SEO);
(m) Social Media Setup and Management;
(n) Phone Call Tracking and Lead Tracking;
(o) Conversion Rate Optimisation; and
(p) Marketing Automation.
2.2 Harper must confirm the provision of any Services with you in an appropriate Order Form before being bound to perform them.
Our Responsibility to you
3. Quoting and Retainer
3.1 Harper will provide you with a quote prior to the Services being carried out. The Quote:
(a) Will set out the scope of work agreed between Harper and you, either in respect to a
Project or a Subscription Service, or both;
(b) Is intended to provide an estimation of either the total cost required from you to
complete the Project, or the monthly cost required from you in respect to the
Subscription Service; and
(c) Discloses a breakdown of the various fee/cost components chargeable to you; and
(d) The Quote constitutes our initial disclosure to you showing where the bulk of the
fees/costs we expect are required in your Project, Services or Subscription Service.
3.2 Before commencing any Services, we may require an advance against fees, disbursements and other charges (“Retainer”).
3.3 This Retainer will be deposited into our nominated bank account.
3.4 Unless otherwise agreement, the Services will require a Retainer equivalent to:
(a) 50% of the quote for the Project; or
(b) 100% of the first month for monthly Subscription Services.
3.5 Subject to clause 3.6, this Retainer is non-refundable.
3.6 The Parties agree that the Retainer will also be used to pay any invoice rendered by Harper.
3.7 Sometimes the work will require more or less than the quote.
(a) In the case that it is less than the quoted amount, we will return the balance Retainer monies to you upon rendering our final invoice and/or statement to you;
(b) In the case that it is more than the quote, we will obtain consent from you at the earliest possible time to continue with the Services, once the difference in investment cost becomes apparent.
3.8 We will be entitled to ask you to make further top-up payments to the Retainer from time to time if the earlier Retainer payment has been used up.
4.1 Any out-of-scope variation or additions to the quoted Project or Subscription Service will be invoiced over and above the quoted total. We will communicate the particulars of these variations to you as they become necessary.
4.2 With the exception described in clause 3.4, the Variation or addition to the scope of work will be agreed upon between us and you and will be recorded in a Supplementary Quote.
4.3 We reserve the right to decline to commence or continue the agreed scope of work if there is a failure or delay in payment of any Retainer requested.
5. Service Delivery
5.1 For all Services we will provide for you to view and sign an Order Form, detailing the proposed Products, Minimum Term, and associated costs.
6. Third Party Providers
6.1 You acknowledge that we may utilise third party providers to deliver our Services and as such we may be bound by their rules and associated Terms and Conditions (these third party provider solutions may also experience downtime outside of our control, which may result in some or all of our Services being unavailable).
6.2 There may also be an associated cost with using third party provider solutions that will be payable by you in the course of providing the Service and as outlined in clause 3.2.
7.1 From time to time, Harper may provide Services for your clients on your behalf. In this context, you must ensure that your clients at all times comply with our Terms and Conditions and you shall indemnify our us and any of our affiliates/contractors as separate and do not overlap.
7.2 Accordingly, as reflected in the invoices we render, our outsourced work and the performance of that outsourced work will relate strictly to the particulars set out in the quote and Order Form, plus any subsequent variation to that quote and Order Form.
7.3 We are not and will not be held responsible or liable for any advice, proposed work, or performance of any work that Harper or you provide or undertake for any third party relation
to Harper’s Services.
Your Responsibilities to Harper
8.1 You endeavour to respond in a timely fashion, to all requests by us for information or content items (such as logos, fonts, text and images), as well as Log-in details if/when required.
8.2 You accept that any delay in the your response may hold up our work on your Project or Subscription Service, and that this may void any deadlines initially agreed to by us.
8.3 If and when necessary, we reserve the right to make a unilateral variation to the initially agreed scope of works per clause 3.1 (d) if you have caused any delay as described in clauses 7.1 and 7.2 above.
9. Monthly Subscription Services
9.1 Any Subscription Services or Monthly Services are subject to the following:
(a) Minimum Term of four (4) months for advertising;
(b) Six (6) months for search engine optimisation (SEO); and
(c) Twelve (12) months for Website Hosting.
9.2 At the end of the Minimum Term, these Services will move onto a month-by-month contractual term.
9.3 These Services may be cancelled by giving notice in writing at any time after the end of the Minimum Term and paying the subsequent billing cycle (effectively one more final invoice) in advance. For the avoidance of doubt, if an invoice has already been issued when notice is received, then the final invoice will be the one following that already issued.
9.4 You have the right to suspend (pause) your monthly Subscription Services, however, should this pause last for longer than twenty-eight (28) days, Harper reserves the right to charge $50.00 plus GST per month following the twenty-eight (28) days in technology costs (including but not limited to call tracking, dashboard, administration).
9.5 You may suspend (pause) your account with Harper for a hold fee, however, if the you wish to cancel any agreement in accordance with clause 22, you will need to pay notice period at the amount of the previous full invoice unless otherwise agreed.
10. Website Hosting
10.1 We provide Website Hosting Services to our Customers as a reseller of both WP Engine Inc. and Open Host (Internet Services Group Limited). The relevant Terms and Conditions can be
(a) Open Host: https://store.openhost.net.nz/information.php; and
(b) WP Engine: https://wpengine.com/legal/terms-of-service/
10.2 We agree to communicate promptly any planned server maintenance or issues with the provision of hosting services to you.
10.3 Where we host a website on your behalf, we take responsibility to our best ability for ensuring the best possible performance of that website, and the maintenance of all software and
licences relating to its publication and use, however, as we employ the use of third party website hosting, we cannot guarantee that the websites will be operational 100% percent of the time, and Harper shall not be liable for loss caused by any unplanned downtime.
10.4 The Customer acknowledges that Harper uses Third Party Website Hosting and as a result cannot guarantee the security of the client data. To mitigate this we take all reasonable steps under the Privacy Act 2020 (“Privacy Act”) to protect your data. However, we do not guarantee the security of any third party transfer system and accept no liability for data loss or privacy breach resulting from your transfer or due to any third party act of omission.
10.5 Harper is not responsible to you or any third party for unauthorised access to your information or privacy breach unless the unauthorised accessed or privacy breach results from our failure
to meet our security obligations. If your data security is breached by act or omission of a third party, we will take immediate steps to contain the breach, analyse its extent and report the breach in accordance with our obligations under the Privacy Act, taking all steps to protect your data to the best of our abilities.
11. Cancellation of Website Hosting
11.1 You may cancel your Website Hosting Services at any time after the end of the Minimum Term, by providing us at least twenty eight (28) Working Days’ written notice. Upon cancellation of
Website Hosting Services, your website will no longer be live on the web.
11.2 You have the option to migrate your website to a new hosting provider, by requesting an export of your website content and databases, this Service will be billed at a reasonable rate
11.3 The parties agree that this Service is an export only, and no responsibility is taken by Harper with regard to migrating and loading the website with your new provider.
12. General Payment Terms
12.1 All quotes are exclusive of GST unless otherwise expressly agreed between the parties.
12.2 All invoices provided are due and payable seven (7) Working Days from the invoice date unless otherwise stated or agreed between the parties or in accordance with clause 3.6.
12.3 For Products and Services with a monthly fee, payment is due monthly in advance.
12.4 In cases of non-payment of any outstanding amount for the Project or the Services (“Amount Owing”), the Services will cease four (4) days after non-payment, until we have been paid in full for the Services unless otherwise agreed.
12.5 If any invoice is not paid on time and in full, the Customer agrees to pay penalty interest (if levied by Harper) on the overdue balance at a rate of ANZ Bank New Zealand interest rate per month on the overdue balance (compounding monthly) together with any debt recovery costs.
12.6 In cases of persistent non-payment, we reserve the right to engage, without notice to you, our collections agency to obtain outstanding funds, and suspend any services we are providing on an ongoing basis. In such cases, you will be liable to pay any associated collection or debt recovery costs or associated legal fees.
13. Changes to these Terms and Conditions
13.1 The Customer agrees that Harper may change these Terms and Conditions from time to time without notice. Harper shall use reasonable endeavours to notify the Customer in writing, which may be by email.
13.2 Current Terms and Conditions will at all times be available on Harpers website.
14. Protecting Your Private Information
14.1 Where you provide us with Personal Details we endeavour to protect this information from any unauthorised use.
14.2 If you provide us with Log-in Information you accept that we may log into these accounts and make any changes we deem appropriate where these changes affect our agreed objectives for your accounts.
15.1 You agree that any dispute arising in connection with or arising out of these Terms and Conditions(“Dispute”) shall in the first instance be subject to the following resolution process:
(a) A party shall not commence or maintain any action or proceeding in any court, tribunal or otherwise regarding a Dispute without first complying with the provisions of clauses 15.1 (b) to 15.1 (h);
(b) If a party considers that a Dispute has arisen, it may issue a written dispute notice to the other Party setting out reasonable particulars of the matter in Dispute (“Notice”). For a period of thirty (30) days after a party receives a Notice, the parties shall use best endeavours to negotiate in good faith to resolve the Dispute and shall (subject to privilege) furnish to the other party all relevant information which is reasonably requested by the other party;
(c) If the Dispute has not been resolved within thirty (30) days after receipt of the Notice, or within such further period as the parties agree in writing, the parties shall attempt to settle the Dispute by mediation administered by an appropriate mediator (or, if for if a mediator cannot be agreed upon, then a mediator selected by the current President of the New Zealand Law Society), before having recourse to any other dispute resolution processes which may be available to the parties;
(d) The mediation described in clause 15.2 (c) shall be conducted in accordance with Resolution Institute Guidelines as from time to time in force;
(e) If the Dispute has not been resolved within thirty (30) days, or within such further period as the parties agree in writing, after the commencement of mediation, then either party may exercise any legal rights which may be available to it;
(f) The Parties shall use best endeavours to ensure that, where a Dispute is reasonably foreseeable, it is dealt with at a sufficiently early stage to ensure that there is a minimum effect on the ability of any party to perform its obligations in accordance with these Terms;
(g) Notwithstanding the above, nothing in this clause 15 shall prevent any party from seeking urgent equitable relief before an appropriate court.
(h) The Customer agrees and acknowledges late payment and interest on the Amount Owing does not constitute a Dispute.
16.1 In the event of your Default of any of these Terms (and until the Default is corrected):
(a) Harper may immediately suspend or terminate any credit facilities you have with us;
(b) Harper shall be entitled to exercise any or all powers available to us under the Contract and Commercial Act including our rights to suspend work and terminate the contract. You will be liable for all costs and losses including loss of profit arising out of such suspension or termination may suspend work and terminate the contract. You will be liable for all costs and losses including the loss of profit arising out of such suspension or termination;
(c) Any discounts may be disallowed and we reserve the right to withhold or refuse any warranty or Service until you correct the Default;
(d) Any Amount Owing will immediately become due and payable notwithstanding that the due date has not yet arisen;
(e) We may charge you interest on the Amount Owing at the rate of 2.5% per month;
(f) You shall be liable for all costs incurred by Harper in recovering the Amount Owing including debt collection agency commission and full legal costs.
17. Limitation and Exclusion of Liability
17.1 All advice, recommendations and information in whatever form has been given gratuitously and without liability. Illustrations are not binding as the details as modifications and improvements in manufacture are introduced from time to time.
17.2 To the maximum extent permitted by law, the Customer agrees that Harper shall not be liable for any damage or loss of any kind, direct or indirect, whatsoever suffered by the Customer or
the Customer’s third parties unless as a result of a breach of Harper’s obligations under these Terms and Conditions including any cancellation of these Terms and Conditions, or, any negligence on the part of Harper. Harper shall not be liable to you for any breach of these Terms, or any negligence, on behalf of Harper’s employees, agents or other contractors. The Customer shall indemnify Harper against any claims by any third parties, contractors or other legal entities.
17.3 Nothing in these terms excludes, limits, restricts or is intended to derogate from any right or remedy which the Customer may have pursuant to the CGA if you are a consumer as defined in the CGA who requests the Services for personal use. However, the guarantees contained in the CGA are expressly excluded where you acquire the Services from Harper for commercial purposes or any other non-individual purposes.
17.4 Notwithstanding anything else in these Terms and Conditions, in the event that liability is determined at law against Harper in relation to a claim or action brought by a Customer (or arising from a claim against the Customer by any of its third parties) or a Customer’s third party affiliate for the breach of these Terms and Conditions by Harper or based on negligence on the part of Harper, its agents or other its external contractors, then Harpers liability shall be limited to the total price paid for the Services.
17.5 Harper makes no warranties or representations as to the suitability of the Services for any purpose and no such warranty shall be implied by the description of the Services on the Order Form. All implied warranties and conditions as to the state, quality or fitness of the Equipment for any purpose are hereby excluded. The parties agree that all statutory or implied warranties are hereby excluded to the fullest extent allowed by the law.
18.1 You indemnify Harper and its directors, employees and personnel from all costs, losses, claims, expenses, damages and liabilities that may arise now and in the future as a result of Harper providing the Services to you. Harper may provide you with admin access to either your website, advertising campaigns, or other systems. This access is provided in good faith, and Harper take no responsibility for any changes you may make whether deliberately or by accident. We reserve the right to charge for any additional work required to repair your website or advertising campaigns following changes made by you.
19. Force Majeure
19.1 Where a Specified Event occurs which either Harper from commencing, continuing with, or any obligation to supply the Services, or makes it impracticable for Harper to do so, then Harper may by notice in writing to the Customer advise of the Specified Event and either:
(a) Cancel that Agreement; or
(b) Suspend performance of its obligations under that Agreement for the Specified Period; or
(c) Amend performance of its obligations to such of them as Harper, acting reasonably, remains at its discretion able to perform during the Specified Period.
19.2 In the event of cancellation, neither party shall have the right of any claim against the other, provided that the Customer must still pay for any hire charges under the Agreement that had begun prior to the commencement of the Specified Event.
19.3 In the event of suspension or amendment:
(a) The parties shall negotiate in good faith any required changes to the Agreement or and in the event, they cannot so agree, such disagreement shall be deemed to be a dispute and the provisions of clause 15 shall apply; and
(b) The Customer shall have no obligation to make any payment to Harper under any affected Agreement other than in respect of any invoice issued for an Agreement beginning prior to the start of the Specified Period.
19.4 For the Purpose of this clause:
(a) “Specified Event” means any act of war; acts of Government; monetary or economic developments; epidemic, pandemic or other medical emergency; natural disaster; accident; fire; lockout, strike or other labour dispute; riot or civil commotion; or any other factor or factors beyond the reasonable control of the Owner (whether similar or not); and includes a Covid-19 Period.
(b) “Specified Period” means the period commencing on the date notice is given by the Owner under clause 19.1, and ending on the later of:
(i) The date the Specified Event ends; and
(ii) The date by which the Owner is, acting reasonably, practically and logistically able to re-commence complying with its obligations under this Agreement.
19.5 Harper is not responsible for any delay in delivery or non-delivery of the Services.
19.6 Nothing in this clause shall excuse payment of any amount owing which becomes due under these terms and occurrence of the Force Majeure event shall not give you the right to cancel any agreement with us.
20. Governing Law
20.1 These Terms and Conditions are governed by the laws of New Zealand.
20.2 Any Agreement entered into by Harper and the Customer shall be governed by and interpreted according to the laws of New Zealand and each party irrevocably submits itself to the exclusive jurisdiction of the New Zealand courts in respect of any proceedings arising out of or relating to this Agreement or Order Form governed by it.
21.1 If the whole or any part of the provisions of these Terms and Conditions shall be held void or unenforceable in the whole or in part such provision or part thereof shall, to the extent unenforceable, be served from these Terms and Conditions but for the validity and enforceability of the remainder shall not be effected.
22.1 The agreement and monthly Subscription Services can be terminated at any time with one (1) months’ notice by either party.
22.2 We may terminate in the event you do not make your Payment’s in the manner as required, or immediately should you become bankrupt or, in our reasonable opinion, perform such actions that may compromise our Services.
23.1 You may not cancel any Services in whole or part without our written consent. Any request made by you to cancel or reschedule the supply of the Services must be in writing and received by Harper seven (7) days in advance of the scheduled Commencement Date. If sufficient notice of your intention is received, we may, at our sole discretion, refund or waive the amount payable. If the required notice pursuant to clause 8.1 is not provided, we reserve the right to retain any amount paid in advance and any other rights we have, including (but not limited to) requiring you to meet all costs and/or losses (including profit and time). order.
23.2 We may at any time and without reason or notice to you and/or any Guarantor(s), in writing, cancel without liability any agreement either in whole or part for the supply of the Services to you. This clause shall not affect our claim against you for any Amount Owing.
24.1 By using our Services or other Services provided by us, you acknowledge that you have read these Terms and Conditions and agree to be bound by them.
25. Contact Information
25.1 For more information on these Terms and Conditions you are welcome to contact Harper via: [email protected] or in writing at 1H Park Avenue, Takapuna, Auckland 0622.