Introduction
Part A of these Website Terms of Use and Terms of Trade sets out the terms that apply to your use of the Website.
Part B of these Website Terms of Use and Terms of Trade sets out the terms on which we provide, and you purchase, our Service (as defined below).
PART A – WEBSITE TERMS OF USE
1. Application Of Terms
1.1 These Terms apply to your use of the Website. By accessing and using the Website:
a you agree to these Terms; and
b where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
1.2 If you do not agree to these Terms, you are not authorised to access and use the Website, and you must immediately stop doing so.
2. Changes
2.1 We may change these Terms at any time by updating them on the Website. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring you are familiar with the latest Terms. By continuing to access and use the Website, you agree to be bound by the changed Terms.
2.2 We may change, suspend, discontinue, or restrict access to, the Website without notice or liability.
2.3 These Terms were last updated on 01 March 2023.
3. Definitions
In these Terms:
Including and similar words do not imply any limit
Loss includes loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis
Personal Information means information about an identifiable, living person
Website Terms means Part A of these terms and conditions titled Website Terms of Use and Terms of Trade
Underlying System means any network, system, software, data or material that underlies or is connected to the Website
User ID means a unique name and/or password allocated to you to allow you to access certain parts of the Website
We, us or our means Fox IQ
Website means www.foxiq.nz
You means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
4. Your Obligations
4.1 You must provide true, current and complete information in your dealings with us (including when setting up an account), and must promptly update that information as required so that the information remains true, current and complete.
4.2 If you are given a User ID, you must keep your User ID secure and:
a not permit any other person to use your User ID, including not disclosing or providing it to any other person; and
b immediately notify us if you become aware of any disclosure or unauthorised use of your User ID, by sending an email to hello@foxiq.nz.
4.3 You must:
a not act in a way, or use or introduce anything (including any virus, worm, Trojan horse, timebomb, keystroke logger, spyware or other similar feature) that in any way compromises, or may compromise, the Website or any Underlying System, or otherwise attempt to damage or interfere with the Website or any Underlying System; and
b unless with our agreement, access the Website via standard web browsers only and not by any other method. Other methods include scraping, deep-linking, harvesting, data mining, use of a robot or spider, automation, or any similar data gathering, extraction or monitoring method.
4.4 You must obtain our written permission to establish a link to our Website. If you wish to do so, email your request to hello@foxiq.nz.
4.5 You indemnify us against all Loss we suffer or incur as a direct or indirect result of your failure to comply with these Website Terms, including any failure of a person who accesses and uses our Website by using your User ID.
5. Intellectual Property
5.1 We (and our licensors) own all proprietary and intellectual property rights in the Website (including all information, data, text, graphics, artwork, photographs, logos, icons, sound recordings, videos and look and feel), and the Underlying Systems.
5.2 If you provide us with ideas, comments or suggestions relating to the Website or the services we provide (together feedback):
a all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
b we may use or disclose the feedback for any purpose.
6. Disclaimers
6.1 To the extent permitted by law, we and our licensors have no liability or responsibility to you or any other person for any Loss in connection with:
a the Website being unavailable (in whole or in part) or performing slowly;
b any error in, or omission from, any information made available through the Website;
c any exposure to viruses or other forms of interference which may damage your computer system or expose you to fraud when you access or use the Website. To avoid doubt, you are responsible for ensuring the process by which you access and use the Website protects you from this; and
d any site linked from the Website. Any link on the Website to other sites does not imply any endorsement, approval or recommendation of, or responsibility for, those sites or their contents, operations, products or operators.
6.2 We make no representation or warranty that the Website is appropriate or available for use in all countries or that the content satisfies the laws of all countries. You are responsible for ensuring that your access to and use of the Website is not illegal or prohibited, and for your own compliance with applicable local laws.
7. Liability
7.1 To the maximum extent permitted by law:
a you access and use the Website at your own risk; and
b we are not liable or responsible to you or any other person for any Loss under or in connection with these Website Terms, the Website, or your access and use of (or inability to access or use) the Website. This exclusion applies regardless of whether our liability or responsibility arises in contract, tort (including negligence), equity, breach of statutory duty, or otherwise.
7.2 Except to the extent permitted by law, nothing in these Website Terms has the effect of contracting out of the New Zealand Consumer Guarantees Act 1993 or any other consumer protection law that cannot be excluded. To the extent our liability cannot be excluded but can be limited, our liability is limited to NZD100.
7.3 To the maximum extent permitted by law and only to the extent clauses 7.1 and 7.2 of these Website Terms do not apply, our total liability to you under or in connection with these Website Terms, or in connection with the Website, or your access and use of (or inability to access or use) the Website, must not exceed NZD100.
8. Privacy Policy
8.1 You are not required to provide personal information to us, although in some cases if you choose not to do so then we will be unable to make certain sections of the Website available to you. For example, we may need to have your contact information in order to provide you with updates from our Website.
8.2 When you provide personal information to us, we will comply with the New Zealand Privacy Act 2020 and our privacy policy.
9. Suspension And Termination
9.1 Without prejudice to any other right or remedy available to us, if we consider that you have breached these Website Terms or we otherwise consider it appropriate, we may immediately, and without notice, suspend or terminate your access to the Website (or any part of it).
9.2 On suspension or termination, you must immediately cease using the Website and must not attempt to gain further access.
10. General
10.1 If we need to contact you, we may do so by email or by posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications.
10.2 These Website Terms, and any dispute relating to these Website Terms or the Website, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Website Terms or the Website.
10.3 For us to waive a right under these Website Terms, the waiver must be in writing.
10.4 Clauses which, by their nature, are intended to survive termination of these Website Terms, including clauses 4.5, 5, 6, 7 and 10.1 of these Website Terms, continue in force.
10.5 If any part or provision of these Website Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from these Website Terms. The remainder of these Website Terms will be binding on you.
10.6 These Website Terms set out everything agreed by the parties relating to your use of the Website and supersede and cancel anything discussed, exchanged or agreed prior to you agreeing to these Website Terms. The parties have not relied on any representation, warranty or agreement relating to the Website that is not expressly set out in the Website Terms, and no such representation, warranty or agreement has any effect from the date you agreed to these Website Terms.
PART B – TERMS OF TRADE
1. Application
1.1 Application: These Terms of Trade apply to all Services supplied by us to you, unless there is a separate written agreement signed by both parties which excludes these Terms of Trade.
1.2 Agreement: Subject to clause 1.1 of these Terms of Trade, if you request that we perform services (including via the Website, email and verbal requests), our acceptance of that request (either in writing or by commencing the provision of the relevant services), together with these Terms of Trade, forms a binding agreement. Each request for services that we accept (either in writing or by commencing the provision of the relevant services) is a separate agreement between you and us.
1.3 Exclusion of Client terms: These Terms of Trade apply to the exclusion of any standard or other terms you may have for the purchase of goods or services, including any terms you may have included your request for services or any purchase order issued by you.
2. Interpretation
2.1 Definitions: In these Terms of Trade:
Agreement means these Terms of Trade and the Work Request. Where any conflict exists between the Terms of Trade and the Work Request, the Terms of Trade will have precedence.
Confidential Information means the terms and conditions of the Agreement and any information that is not public knowledge and which is obtained from the other party in the course of, or in connection with, the Agreement. Our Confidential Information includes Intellectual Property owned by us.
Deliverables means any document, report, material or other output produced by us in the course of providing the Services.
Fees means the fees set out on the Website, in the Work Request, or otherwise agreed in writing by you and us, or if there are none, fees calculated on a time and materials basis at our standard rates.
Intellectual Property Rights means includes copyright and all rights conferred under statute, common law or equity relating to inventions (including patents), registered or unregistered trademarks and designs, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning.
Personal Information has the meaning given in the Privacy Act 2020.
Services means the services described in the Work Request, or, for Services requested via our Website, on the Website.
Terms of Trade means Part B of these terms and conditions titled Website Terms of Use and Terms of Trade.
We, us or our means Fox IQ.
Website means www.foxiq.nz.
Work Request: any request (including via the Website, email and verbal requests) from you for services which has been accepted by us in accordance with clause 1.2 of these Terms of Trade.
Your Materials means all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of you that is provided or made available by you to us in connection with our provision of the Services.
2.2 Interpretation: In the Agreement:
a clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
b words importing the singular include the plural and vice versa; and
c a reference to:
i a party to the Agreement includes that party’s permitted assigns; and
ii including and similar words do not imply any limit.
3. Obligations
3.1 Our obligations: We will provide the Services:
a in accordance with the Agreement and all applicable laws;
b exercising reasonable care, skill and diligence;
c using reasonable efforts to meet any timeframes and estimates set out in the Work Request, however, you acknowledge that any such timeframes and estimates are indicative only; and
d using suitably skilled, experienced and qualified staff.
3.2 Your obligations: In addition to your other obligations under the Agreement, you must:
a perform the functions, tasks and responsibilities and provide the resources set out in the Work Request or otherwise agreed with us in a timely manner; and
b promptly make decisions (including approvals) and provide us with
4. Your Materials
4.1 Materials: You must arrange all consents and approvals that are necessary for us to access and use Your Materials.
4.2 Indemnity: You indemnify us against any liability, claim, proceeding, cost, expense (including actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any of Your Materials infringe the rights of that third party (including Intellectual Property Rights and privacy rights) or that Your Materials are objectionable, defamatory, obscene, harassing, threatening, harmful or unlawful in any way, or incorrect or misleading.
5. Intellectual Property
5.1 Retained Intellectual Property: The following Intellectual Property (including any modification, enhancement or derivative work of that Intellectual Property) remains the property of the current owner, regardless of its use in the Services:
a Intellectual Property that existed prior to the date of the Agreement; and
b Intellectual Property that was developed independently of the Agreement.
5.2 Know-how: To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
5.3 Ownership going forward:
a Subject to clause 5.1 and 5.2 of these Terms of Trade, all new Intellectual Property created or developed by us in providing the Services (including Deliverables), is owned by you on payment in full of all of the Fees relating to those Services.
b If any Deliverable incorporates our Intellectual Property or any third party material that is not otherwise licensed to you, we grant or must obtain for you an irrevocable, perpetual, non-transferable and fully paid licence to use that Intellectual Property or third party material within New Zealand for your internal business purposes.
5.4 Feedback: If you provide us with ideas, comments or suggestions relating to the Website or the services we provide (together feedback):
a all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
b we may use or disclose the feedback for any purpose.
6. Fees
6.1 Fees: You must pay us the Fees for providing the Services.
6.2 Invoicing:
a We will provide you with valid GST invoices on the dates set out in the Work Request, or if there are none, in advance of providing the Services to which those Fees relate.
b The Fees exclude GST, which you must pay on taxable supplies under each Agreement.
c Unless we agree otherwise in writing, Fees are payable in advance by credit card.
d If we are unable to collect the Fees from your credit card for any reason, including where your card has expired or there are insufficient funds, you remain responsible for any uncollected amounts and we may suspend or cancel our provision of the Services without giving notice to you.
e If we agree that you may pay the Fees on an invoice basis, you must pay our invoice:
i on the dates set out in the Work Request, or if there are none, within 7 days of receipt of the invoice; and
ii electronically in cleared funds without any set off or deduction.
7. Warranties and Liability
7.1 Warranty Exclusions:
a We make no representation that the Deliverables will be suitable for a particular purpose, including that the use of the Deliverables will:
i fulfil or meet any of your statutory roles or responsibilities; or
ii comply with any laws or regulations applicable to you.
b To the maximum extent permitted by law, our warranties are limited to those set out in these Terms of Trade. Any implied condition or warranty is excluded.
c You agree and represent that you are acquiring the Services for the purposes of trade. The parties agree that, to the maximum extent permissible by law, the New Zealand Consumer Guarantees Act 1993 does not apply to the Services or the Agreement and that it is fair and reasonable to be bound by this clause 7.1.
7.2 Client warranty: You warrant that Your Materials are true, lawful and accurate, and that any of Your Materials will not infringe on any third party rights (including Intellectual Property and privacy rights).
7.3 Maximum liability: Our maximum aggregate liability relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, will be limited, at our option, to:
a reperforming the Services so they meet the requirements of the Agreement; or
b refunding the Fees paid by you for the relevant Services.
7.4 Unrecoverable loss: Except for your liability to pay the Fees, neither party is liable to the other under or in connection with the Agreement for any loss of profit, data, savings, business, revenue, and/or goodwill, or any indirect, consequential or incidental or special loss or damage of any kind.
8. Termination
8.1 Termination of Agreement:
a The Agreement will terminate:
i when the relevant Services are complete; or
ii in accordance with any additional rights to terminate set out in the Work Request.
b Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
i breaches any material provision of the Agreement and the breach is not:
• remedied within 10 days of the receipt of the notice from the first party requiring it to remedy the breach; or
• capable of being remedied; or
ii has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of external administration, or ceases to continue business for any reason.
8.2 Consequences of expiry or termination:
a Expiry or termination of the Agreement does not affect each party’s rights and obligations accrued before the termination or expiry date.
b You must pay for Services provided before the expiry or termination date.
8.3 Obligations continuing: Clauses which, by their nature are intended to survive expiry or termination, including clauses 4.2, 5, 7, 8.2 and 8.3 of these Terms of Trade, continue in force.
9. Disputes
9.1 Good faith negotiations: Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.
9.2 Obligations continue: Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.
9.3 Right to seek relief: This clause 9 does not affect either party’s right to seek urgent interloctury and/or injuctive relief.
10. General Provisions
10.1 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by an event that is beyond the reasonable control of a party, excluding a lack of funds for any reason.
10.2 Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
10.3 Independent contractor: We are your independent contractor. No other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
10.4 Severability: Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.
10.5 Variation: Any variation to the Agreement must be in writing and signed by both parties.
10.6 Entire Agreement: The Agreement sets out everything agreed by the parties relating to the Services and supersedes and cancels anything discussed, exchanged or agreed prior to the Agreement’s start. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Agreement’s start. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 10.6.
10.7 Assignment by you: You may not assign or transfer any right or obligation under the Agreement without our prior written approval. You remain liable for your obligations under the Agreement despite any approved assignment or transfer.
10.8 Law: The Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with the Agreement.
