Terms and Conditions

These Terms & Conditions (“Agreement”) are between Done By Ltd (“Done By”) and you for the provision of certain Services described below.

You acknowledge that you have read, understood and agreed to these Terms & Conditions, and agree to be bound by them. Done By is only willing to supply Services on these Terms & Conditions.

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Precedence

2.1 The Agreement is structured so that the Terms & Conditions are subject to this Master Services Terms & Conditions.

2.2 The Master Services Terms & Conditions takes precedence over Service List and the Terms & Conditions relevant to each Service. If there is any inconsistency between the provisions of the Master Services Terms & Conditions and the Terms & Conditions relevant to each Service, this Master Services Terms & Conditions will prevail to the extent of any inconsistency.

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Services and the Service List

3.1 The Service List below sets out Services offered by Done By and the Terms & Conditions relevant.

3.2 When you agree to this Agreement, you also agree to be bound by the Terms & Conditions.

 

Variations and Cancellations

4.1 You may change Services by notifying Done By in writing. Your new Service will take effect from the date Done By commences provision of the new Services in accordance with your new Service Proposal document, or as otherwise agreed in writing by Done By. Your next invoice will reflect:

(a) Charges applicable to your new Service from the date of the notice;

(b) Charges for any remaining invoice period for your previous Service(s) (whether or not such Service(s) are utilized during such remaining invoice period);

(c) Charges for amounts then due but unbilled for your previous Service(s); and

(d) Charges for costs associated with any Service change or cancellation, where such costs are based on the standard rates of Done By at the time. Any amounts or deposits already paid by you for a changed, canceled or discontinued Service shall not be refunded in any circumstances.

4.2 Done By may change these Terms & Conditions, by giving you written notice (whether by email, fax or post to your designated email address, fax number or postal address, notified by you to Done By as part of your registration process). Where a change relates to an increase in Charges, Done By shall provide you with thirty (30) days’ prior written notice.

 

Term

This Agreement commences on the date Done By confirms to you that Service has been activated or such other date as agreed by us in writing (“Commencement Date”) and continues until terminated in accordance with the terms contained herein.

 

Charges

6.1 The Charges payable for each Service, whether recurring or not, are set out in your Proposal document. The Charges shall be payable in NZ dollars within 7 days of the date of the invoice or on such other payment terms set out therein and must be made by one of the methods outlined in the invoices provided by Done By. All deposits or advanced payments are non-refundable.

6.2 You remain committed to pay us for all Charges for Services for their full invoicing periods (as selected in your Proposal document), irrespective of whether:

(a) this Agreement (or any Terms & Conditions) have been suspended or terminated during such invoicing period, or

(b) such Services have been changed or canceled during such invoicing period.

6.3 Unless otherwise stated, all Charges and other amounts payable are exclusive of GST.

6.4 Done By may set off any amounts due and payable under this Agreement against amounts that may be payable by Done By to you.

6.5 Done By reserves the right to charge interest on overdue amounts at an annual rate of 2% over the Reserve Bank of New Zealand base rate ruling on the due date.

6.6 Invoices may only be disputed by you by providing Done By with written details of the dispute within seven (7) days of the date of the invoice, failing which the invoice shall be deemed to have been accepted by you. You shall remain liable to make payment of any undisputed portions of an invoice.

6.7 Done By may issue a refund where the client has purchased online via our website and not received the goods or services specified in the transaction.

 

Termination

7.1 Done By may terminate or suspend this Agreement (without any liability):

(a) at any time by giving you at least 1-month notice;

(b) immediately on giving notice to you, if you breach, including failure to pay the Charges; or

(c) you become insolvent within the meaning of the Corporations Act, are otherwise unable to pay your debts when due, or you cease to carry on business.

7.2 Done By may also suspend or terminate particular Services, and should it elect to reinstate such suspended Service, you shall be responsible for Done By’s standard reactivation charge.

7.3 On termination or expiration of this Agreement or any Terms & Conditions relevant to a Service:

(a) Done By shall invoice you for all amounts then due but unbilled, and it may delete all data, materials, content, configuration, and settings in connection with your Services, whether on Done By storage media or otherwise. It is your obligation to ensure you have retained backup copies.

(b) Any amounts or deposits already paid by you shall not be refunded in any circumstances.

 

Liability

8.1 Services shall be provided without any guarantees, conditions, or warranties as to its accuracy, completeness, reliability, suitability, or currency of Services, and they are provided on an "as is where is" basis. Done By does not warrant that the Services will be uninterrupted or error-free, will meet your requirements, nor will they be free from external intruders (hackers), unauthorized virus or worm dissemination. Any timeframes are provided as a guide or estimate only.

8.2 To the extent permitted by law, Done By, its directors, and employees hereby expressly exclude:

(a) all conditions, warranties, and other terms that might otherwise be implied by statute, common law, or equity; and

(b) any liability for any direct, indirect, or consequential loss or damage incurred by you or any end-user in connection with Services or use of Services, including, without limitation, any liability for loss of income or revenue, loss or interruption of business, loss of profits, loss of anticipated savings, loss of data, loss of goodwill, wasted management, and for any other loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract, or otherwise, even if foreseeable.

8.3 This does not affect the liability of Done By, which cannot be excluded or limited at law. Without limiting the foregoing, parties acknowledge that laws in certain jurisdictions may imply warranties and conditions that cannot be excluded, restricted, or modified except to a limited extent. If any such laws apply, then to the extent permitted by the law of the relevant jurisdiction, Done By’s liability is limited to any one or more of the following in its sole discretion:

(a) in the case of any goods, replacement or repair of goods, or supply of equivalent goods, or payment of the cost of repairing or replacing goods or supplying equivalent goods; and

(b) in the case of any services, supply of services again or payment of the cost of having services supplied again.

8.4 Without limiting the foregoing, you agree that in no event shall Done By’s maximum aggregate liability exceed NZ$2,000.00.

8.5 You shall indemnify Done By, its directors, employees, and representatives from and against all actions, claims, suits, damages, liabilities, or costs (including legal costs) arising from, or directly or indirectly related to the provision of materials by you, use of Services by you, or anyone else, or otherwise arising as a result of this Agreement.

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Notices

9.1 All notices given by Done By may be given by email to the email address notified by you to Done By as part of your registration process. It is your obligation to keep that email address current and correct. You agree and acknowledge that the record of Done By having sent a notice to you by email is, of itself, conclusive proof of receipt.

9.2 Notices given by you must be delivered to Done By in writing and addressed to: Done By Pty Ltd, 7 Hiwi Crescent, Stanmore Bay. Auckland, or emailed to olivia@doneby.co.nz

 

Force Majeure

Done By shall not be responsible for any delay, suspension, or failure arising out of any circumstances outside of its reasonable control, including but not limited to acts of God, governmental actions, labor difficulty, war or national emergency, terrorism, fire, explosion, flood, an act or omission of a third party, inability to obtain any materials, equipment, facilities, or services, failure of performance provided by others, internet interruption or virus, breakdown software, hardware, or communication network.

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Non-solicitation

You shall not, during the duration of this Agreement, and for a period of one (1) year thereafter, hire, engage, solicit, employ, or contract the services of any of the employees or contractors of Done By or others involved in the provision of Services.

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Intellectual Property & Confidentiality

12.1 Done By retains copyright and all other intellectual property rights in:

(a) all programming modules, code, computer programs, material, tools, drawings, documents, presentations, specifications, data, designs, know-how, and anything else generated, whether as improvements or otherwise, in the course of providing (directly or indirectly) the Services; and

(b) all intellectual property rights existing prior to the commencement of such Services (“Done By IP”). Unless agreed otherwise in writing, Done By shall be entitled to claim authorship for any work for which it is responsible.

12.2 Done By licenses to you the right to access the Done By IP on a non-exclusive basis to such extent as is necessary to enable you to make reasonable use of the relevant Services for the duration of the Agreement.

12.3 You acknowledge that Services may include individual third-party software or third-party intellectual property rights (including, with limitation, content management system and open-source software) (“Third-Party IP”), and the license in clause 12.2 and your rights to use Services are without prejudice to the Third-Party IP. Any rights you may have to access Third-Party IP shall be limited to the extent of Done By’s right to access the same and its ability to pass on such rights to you.

12.4 In relation to the license (clause 12.2) and the right to access (clause 12.3):

(a) they will both automatically terminate if the Agreement or any Terms & Conditions relevant to a Service comes to an end; and

(b) they do not include the right to replicate, commercialize, adapt, modify, reverse engineer, decompile, or disassemble wholly or partly.

12.5 In relation to any data, content, information, or material provided by you to us, you warrant that the same will not infringe the rights of any third party nor contravene any law or industry code.

12.6 Save as required by law, you shall not disclose any confidential information relating to Done By or its affiliates, which you obtain during or arising out of this Agreement, to anyone (except your employees on an as-needed basis). You shall procure that anyone else receiving the benefit of Services, whether your employees or otherwise, comply with the terms of this clause as if they were a party to this Agreement.

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Entire Agreement

This Agreement, and the documents referred to herein, contain the entire understanding between the parties as to its subject matter and supersedes and excludes all prior and other discussions, specifications, representations, and arrangements relating to Services, including, but not limited to, those relating to performance or results that ought to be expected from using Services. Any representations (oral or written) given by, or on behalf of, Done By shall not be relied upon. Notwithstanding, you shall also be bound by any policies or guidelines of Done By.

 

Governing Law

This Agreement (and each Terms & Conditions relevant to a Service) and any dispute or claim arising out of or in connection with the same shall be governed by and construed in accordance with the laws of New Zealand, and parties submit to the exclusive jurisdiction of that country.

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Interpretation

In this agreement:

(a) A reference to "this agreement" means these terms and conditions (including any schedule) together with a Purchase Order or Quote (if any);

(b) Headings and bold type are for convenience only and do not affect the interpretation of these terms;

(c) The singular includes the plural, and the plural includes the singular;

(d) Words of any gender include all genders;

(e) Other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning unless the context clearly requires otherwise;

(f) An expression importing a person includes any company, partnership, joint venture, association, corporation, or other body corporate, and any government agency, as well as an individual;

(g) A reference to any legislation includes all delegated legislation made under it and amendments, consolidations, replacements, or re-enactments of any of them;

(h) A reference to a party to a document includes that party’s successors and permitted assignees;

(i) A promise on the part of 2 or more persons binds them jointly and severally;

(j) No provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of this agreement or that provision; and

(k) Specifying anything in this agreement after the words "include" or "for example" or similar expressions does not limit what else is included...

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